Take your travel company to small claims court? Easier said than done. Before filing your paperwork, here are three things to consider, courtesy of my friends in the legal community.
1. Small claims = small awards. “Courts – particularly small claims courts – tend to side with consumers against travel providers,” says attorney Joshua Grimes. “This is true even when the company shows up to defend itself. Typically, the consumer is angry and emotional, as opposed to the cool demeanor presented by the corporate suits and their lawyer. In such circumstances, it is natural for the judges to be sympathetic to the consumer. However, it is also true that the judge’s award is very often significantly less than the amount that the consumer requested in his complaint.”
2. They probably won’t show up. Most courts require corporations to hire an attorney to defend any claims in excess of a threshold amount – usually about $1,500 – according to Grimes. “This makes it a poor business decision for the travel company to defend a small lawsuit, and pay the resulting attorney’s fees,” he says. “It is often cheaper to let the consumer get a judgment by default.”
3. Getting a judgment is easy – getting them to pay isn’t. Ted Maxwell, a retired electrical contractor, says he had a “drawer full” of small claim judgments that he could still not get paid. “One time, after being awarded another judgment, I asked the judge what value the paper was if I still could not get paid. This happened to be against a local accountant who I found out had a history of not paying his bills.” The solution was to show up at the accountant’s place of business with a sheriff, who threatened to auction off some of his office furniture unless he paid the fine. He did.
Maxwell is correct: it’s all in the execution. “Unless the defendant voluntarily pays a judgment, in many states the consumer can only collect if he executes on the judgment,” Grimes told me. “This involves locating the company’s bank accounts or other assets, and then filling out paperwork to get the local authorities to seize those assets. This is usually an expensive, bureaucratic, and time-consuming process. And, if a small travel company is involved or if the company is located outside the jurisdiction of the court, there may be no assets available. The consumer would then be left with a hollow victory and no money to show for his efforts.”
So what does all of this mean? “A voluntary settlement is almost always much better than going to court,” says Grimes. “Consumers need to consider up-front the time, effort, and expense they will incur in litigation, for a less than certain outcome. While travel providers can be bureaucratic and unreasonable, their settlement offers often look much more attractive once the consumer’s anger fades and they are faced with the realities of litigation.”
I second that. I usually recommend court as a last option – even if it’s becoming a popular first choice.
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Even corporations need to appear with a lawyer in small claims court. Almost every state has that requirement. However, a corporate officer can appear in small claims – what are the chances? With an airline or cruise company or large travel agency or hotel chain? Do not forget to ask if someone does show up that they be prevented from testifying unless they are a statutory officer.
Next, unless you live in a very remote place, when it comes to effective execution of the judgment, here are some tips:
Airlines: Sheriff liens the airplane. Best time to do this is after the last arrival. Appear about 10pm with the Sheriff or other executing official, and tell the officials present you are liening of XYZ airline. They’ll call the Station Manager pretty quick unless that person is already there.
NOTE: If you sued Delta and it was Delta Express that caused your problem, you cannot lien a Delta airplane. If you do it wrong, you are liable for ALL damages you cause as a result – so BE careful. In small claims court, as in regular court, it is best to sue EVERYONE and anyone who might have been responsible., If you attach an airplane properly you will be paid cash immediately – do NOT EVER take a check.
MORE: If you are not in a rush to collect, you can lien any airplane by sending the lien to the FAA and when Delta tries to sell it or return to a lessor, they’ll need to clear the title.
Hotels: Go to a company owned location with a Sheriff and seize cash as it comes in.
Rental Cars: Same thing as a hotel – seize cars as well.
@ Joe: So as a foreigner, I am ignorant about how this stuff and I am curious. How does this work? I mean, you walk into your local sheriffs office with your little court approved IOU, and then the Sheriff makes time for you? Aren’t they way overworked trying to get gangs, drugs and real bad stuff?
Also, if you ‘randomly’ sue everybody who might be liable, won’t all the acquitted parties get back at you?
The Quebec Small Claims Court system specifically states that “an association, partnership or legal person can only be represented by an officer or other person working solely for it and bound by an employment contract.” So, while there are some junior attorneys for the Bay Street firms who might try to intimidate one into thinking that they will be there in court, perhaps having that bravado so as to justify their large retainer to the airline HQ, the last laugh will be on them when their Regional Manager has to be the person to stand and defend the firm.
Mr. Pickford, true , but thats in Canada. Most Canadians do not have to sue . . .
Jasper – different ’sheriff.’ Some states let any disinterested party do the attachment. Cops can do it. Process Servers – it just depends on the state.
How do you handle choice of forum clauses in contracts of carriage? Cruise ships generally have choice of forum in Miami or Ft. Lauderdale.
One other thing to keep in mind… if you sue, the company (usually) can unilaterally revoke your miles/points/wonka bars.
so, make sure you use/transfer those points before filing suit. =)
In California Small Claims is up to $7500. No attorneys are allowed to represent the plaintiff or defendant. If a judgement is entered for the plaintiff, the defendant has 30 days to appeal to another department of Small Claims. Attorneys are allowed for the appeal. No further appeal is allowed. Get the Nolo Press how-to book on how to collect a judgement. A “till tap” with the Sherrif at the till of the airline, travel office or other business is best. Also, after the judgement , the plaintiff can subpoena the defendant or their employee/agent to come back to Court for an Order of Examination to answer under oath where assets are located e.g. bank accounts, property etc.
There are couple of online resources one can use in regards to small claims and their procedures in accordance of each state. Check out http://www.civiltree.com or http://www.smallclaims123.com. I recommend Civiltree.com