F.I.S.T.
F.I.S.T. anti-telemarketing program File your complaint in small claims. Inform the defendants and ... Settle out of court, or ... go to Trial in small claims court. STEP 1: FILE your complaint with your local small claims court. with your local small claims court. with your local small claims court.
Hopefully, you were able to identify the name of the "hired gun" telemarketing company that was retained by the company that called you. If this is the case, you can sue both of them by naming the companies as co-defendants, thereby doubling your odds for a lucrative settlement. Below is a checklist of the information and questions you will need to answer in order to complete a typical small claims form. How much can you sue them for? If you like you can skip ahead to Letter #2 and calculate the fines. The next step it to visit the nearest small claims court. A small claims court advisor will give you the specific complaint form you need (every court uses different forms). The advisor will assist you in filling out and filing the document(s) with the court clerk. The court clerk can be a tough person to get by. If the company you are suing is headquartered out of your district or even out of state, you may have to argue for bringing the telemarketing company/defendant into a local small claims court. You must convince the clerk that since the company is soliciting and marketing in your district and that because they are actively doing business in your community, they are obligated to defend a suit in your district (venue). You can also argue the following: 1 there is a direct relationship between the company’s contact with your district and your specific lawsuit.as the plaintiff, 2 you were damaged in your district, 3 the defendant offered a contract to be entered in your district, 4 it is more convenient for the defendant, a big company, to come to your district than for you to travel to them, and 5 it is in your district’s interest to protect its citizens in a local court.
These arguments should pass muster with any clerk or judge. If the court clerk does not let you file in your district then you will have to go to the telemarketing company’s venue or the district where their corporate headquarters are located.
The cost of filing a small claims suit
§ most courts have a $20 filing fee
§ $6 if you want the court to send complaint by certified mail
§ Questions? The San Diego Small Claims Advisor can be called at (619) 236-2700
Identifying the "Agent of Service"
You need to serve the complaint on a specified person or agent called an "agent of service of process." To identify the name and address for the agent of service of process you must write (not call):
Secretary of State
1500 11th St.
Sacramento, CA 95814
Attn: IRC Unit
Request registered agent for XYZ company.
§ Send a $4 check payable to: "Secy. of State" for $4 fee for the name and address of the agent (call (916) 653-7315 for more information). All out-of-state companies doing business in California MUST have a registered agent. If you are unable to identify a registered agent, contact UCAN and we will request an Attorney General investigation.
To serve the complaint on the agent you can:
1 Send it certified mail (or pay $6 for the court to do it), but the agent must sign that he/she received the complaint for it to be effective (this process can be difficult if the defendant wants to make it difficult); or
2 Pay a marshal $28 to serve the agent; or
3 Hire a private process server (fee varies).
SMALL CLAIMS CHECKLIST
Be prepared to answer the following questions:
Plaintiff name, address, and telephone (that’s you);
Defendant name address and telephone (did you find the registered agent of service?);
Money owed to you (calculate the total owed by filling in the blanks in this letter);
Specific violations of the law (for example calling you twice in 12 months is a violation of 47 USC Sec. 227(c)(5)). See next page for legal citations.
Justification of venue. This is your explanation of why you should be allowed to sue in this particular small claims court. We advise the following wording: "Defendant is selling to and soliciting customers in district. My harm relates directly to this business activity. The company must therefore defend its violations of the law in the district where the unlawful activity occurred."
STEP 2: Inform the company, by sending this letter.
STEP 3: SETTLE out of court (if you want to).
Every defendant has different reasons for avoiding the risks involved in a court hearing. Some companies may want to settle with you. Remember, you don’t have to settle, but if you decide to, here are some tips:
If you have identified a telemarketing firm that has acted as a sales agent for another company, then inform that company that you have filed a lawsuit against their client.
DO NOT MAKE THREATS! Keep your wits and be cordial. You are just calmly informing them of what you are doing.
If you do not receive a reasonable settlement offer, then proceed to step four.
STEP 4: TRIAL.
Here is what you can expect in small claims court: The judge will call your name and you will present your evidence. Bring all of the evidence you have - the more paperwork, dates, faxes, letters, names, and other documents that you present, the stronger your case. Also bring a copy of the Arkow v. Bank of America case. (see next page)
Once the judge rules in your favor, the court will issue a judgement and order to the company to make payment to you. This can sometimes be a tricky process if the company does not want to abide by the judgement, but the court has various ways to collect including garnishing wages, reporting to collection agencies, attaching assets, etc. Most companies do not like to deal with these annoyances. In the event you are compelled to pursue collection activity, the court will force the defendant to reimburse you for all collection costs.
Keep in mind that if the company is out of state, the collection process can be difficult, making an out-of-court settlement more attractive.
Using answering machines and tape recorders to gather evidence
California law prevents you (or anyone else) from recording a conversation without the express knowledgeof the participants. If you plan to record phone calls from telemarketers for future use in court, you must inform them that the call is being recorded. One way to do this is to just say "You know I’ve got this darned machine hooked up to my phone and it’s recording this call. I hope you do not mind." The caller will likely assume that your answering machine is malfunctioning, and consent to be recorded. In the event a telemarketer calls your answering machine and leaves a message, the recording can be used in court because the caller knew at the time that his or her voice would be recorded.
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