Small Claims - Posted by M/C

Real Estate Investing Retail
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Posted by John Merchant on November 16, 2009 at 07:32:42:

Anybody, any citizen or person has the right to file suit in any court and it’s not his or its status that determines the jurisdiction of the court.

It’s the status of the C of A (cause of action) and the jurisdiction over the Defendant that gives (or doesn’t) that court the legal jurisdiction over that case.

i.e. if the C of A arose in TX (car wreck or breach of contract e.g.), and the actions of the D give TX courts the right to decide that C of A in TX then whomever that D injured would have the right to sue that D in TX.

And since an LLC of any US state is a legal person that must be recognized by all states and fed gov., it also has the const. right to sue if & when it’s injured.

I can visualize the case where some personal property, say a valuable laptop and its hard drive, are owned by an LLC and is destroyed so the LLC is the injured party and has the right to bring suit where it happened.

My point is that anybody, incl LLC, has the right to sue in any court where it’s injured…now it might not be able to sustain jurisdiction (or venue) in that court over the C of A or the D, but its status as a person isn’t really at issue normally (unless it’s an ultra vires LLC, not legally registered or current in its own state) and it would have the right to sue and take a judgment in that court.

The base issue here was, as I recall, the right of an LLC or C Corp to go into that court pro se, and I’d say generally a one owner LLC can but no C Corp can as it cannot sign court pleadings or make a court appearance on its own and has to have a court-legal rep who is a lic. lawyer in that state.

And it’d be totally unworkable to contact the local court and ask them anything…who’d you call? The Judge? His secretary? They shouldn’t even return the call if they knew why you’d called.

The court clerk? That office’s employees are firmly instructed not to give legal advice to anybody.

The best way is, as I’ve said, to pull a law book or two and see what the law of that state is.

This jurisdiction topic, by the way, is a very difficult law school course and has its students scrambling trying to grasp its substance; further it’s the basis for unceasing court battles because of its intricacy and jillions of lawsuits have been won or lost based on some juris. issue or other.

A civil trial lawyer becomes an authority on jurisdiction, not out of choice but necessity, as he learns that his case might well be won or lost on juris. alone.

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Small Claims - Posted by M/C

Posted by M/C on November 10, 2009 at 09:40:32:

Can a single member LLC appear PRO SE or must we hire a attorney?
Below is the Civil Court info on PRO SE and just wondering if we can represent ourselves?

New York City Civil Court
Representing Yourself

You have a right to represent yourself in all court cases. People who represent themselves in court are called ?Pro Se? or ?Self-Represented? litigants. Pro Se is a Latin phrase that means ?for yourself.?

Representing yourself in a legal proceeding is not an easy decision. Before you decide to represent yourself, ask yourself whether it wouldn?t be better use of your time and money to consult with or hire an attorney who knows the law and can give you advice about what to do, how to do it, and what your chances are of getting what you want.

Court staff can provide valuable information to you. But, there are limitations on what information can be given. The court can?t give you legal advice, so you may be interested in Finding Legal Assistance. Use the helpful links on this website to learn more about representing yourself.

Please note: A corporation must appear by an attorney (CPLR 321), which means an attorney must commence or answer a case, and handle all aspects of a case when the party is a corporation.

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I’d disagree - Posted by John Merchant

Posted by John Merchant on November 12, 2009 at 18:03:06:

Here in WA state, absolutely an LLC can be represented by its one-person owner/Manager and I’d guess this is more the rule than the exception in other states.

But a quick check on Google “LLC Pro Se NY” and “NYC” should get you an answer and the statutes and city ordinances involved.

LLC is quite different from a C Corp and the C Corp cannot, as far as I know, be self represented anywhere.

I’ve read a number of relevant court citations and observed that,in general, courts feel that a one person LLC is not to be held to same standards as a Corp, in such as required formal written resolutions, minutes, rights, etc.

An LLC is seen legally to be more akin to a legal alter-ego that does give liab. protection to its owner yet is user friendly w/o all the backup folderol of the Corp.

An atty-free way around this for the corp is to have the corp enter into a written assignment of the C of A (cause of action) to some individual and tbat individual then files his own suit as the owner of the C of A.

But anybody who’s done much pro se self representation knows all too well that this practice is frequently resented and scorned throughout the court house and the pro se litigant is often met with discourtesy and rudeness from clerical staff there.

In general lawyers and judges are careful not to scorn, scoff at or short-change the pro se litigant as they’ve seen, just as I have, some pretty darned effective pro se cases. And they know that the pro se litigant has every legal right to do what he’s doing.

I once watched George Lincoln Rockwell, founder and head of the American Nazi Party, represent himself in US District Court in a defamation action against a TV station.

As hated as he was for who he was and what he represented, he came awful close to beating the very good trial lawyer representing that TV station.

In that case the Fed Judge, who wasn’t known as any kind of charmer, and the lawyer representing the
TV co defendant leaned over backwards to afford GLR every courtesy and to observe his constitutional and legal rights.

They were well aware that their actions were likely to be scrutinized in detail by the appellate courts and other lawyers, judges and observers.

I’m remembering the time I was pro se in a CAN court, working on collecting a final Judgment which was taken in some US State court and my experience was most favorable and I encountered every courtesy from the CAN lawyers and court personnel involved.

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Re: Small Claims - Posted by Natalie-VA

Posted by Natalie-VA on November 10, 2009 at 13:17:39:

I would say that it’s probably the same as Virginia. You will need an attorney to represent the LLC. The only exception that I am aware of is for unlawful detainers. I can do those myself, without an attorney.

–Natalie

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Re: Small Claims - Posted by Edwin

Posted by Edwin on November 10, 2009 at 10:26:35:

I would think the court clerk should be able to answer this question. If they balk and tell you answering would be giving legal advice, complain to their supervisor and or the presiding judge. If they can’t answer a simple question like that, they need to find another job

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What if one is a corp and 2nd an individual? - Posted by Spider71

Posted by Spider71 on November 19, 2009 at 13:48:14:

Can the individual represent himself? Can the corporate veil be lifted?

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Re: I’d disagree - Posted by Natalie-VA

Posted by Natalie-VA on November 15, 2009 at 12:32:37:

Hi John,

Now you’ve got me thinking, and searching the code of Virginia. I found the following with regard to courts NOT of record:

§ 16.1-81.1. Certain corporations; pro se representation.
When the amount in controversy in any action at law in a general district court does not exceed the sum of $2,500, exclusive of interest, attorney fees contracted for in the instrument, and costs, a corporate plaintiff or defendant, the stock of which is held by no more than five persons and is not publicly offered or planned to be publicly offered at the time of the litigation, may be represented by an officer of that corporation who shall have all the rights and privileges given an individual to represent, plead, and try a case without an attorney, provided that such officer has the unanimous consent of all the shareholders to do so.

===================================================

§ 16.1-122.4. Representation and removal; rights of parties.
A. All parties shall be represented by themselves in actions before the small claims court except as follows:

  1. A corporate or partnership plaintiff or defendant may be represented by an owner, a general partner, an officer or an employee of that corporation or partnership who shall have all the rights and privileges given an individual to represent, plead and try a case without an attorney. An attorney may serve in this capacity if he is appearing pro se, but he may not serve in a representative capacity.

=====================================================
It can get confusing. They refer to an amount of $2500, but they also refer to small claims cases, which can go up to $5000. All of this takes place in our General District Court which has jurisdiction on most claims up to $15,000.

Also, I don’t see anything about LLCs, just corps. It’s definitely not a cut and dried matter, IMHO.

I think I’ll just give up on this issue until I really need to know…hopefully never.

–Natalie

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Re: I’d disagree - Posted by Frank Chin

Posted by Frank Chin on November 14, 2009 at 06:53:58:

John:

In the “commercial small claims” section here in NY State, any corp. partnership, or assignee can sue without using a lawyer, see:

They don’t mention LLC, but I can’t see why an LLC cannot use this venue.

However, I’m told an LLC must fullfil the “publication requirement” when established, or they are not allowed to bring suit in court.

Frank Chin

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LLC pro se - Posted by John Merchant

Posted by John Merchant on November 15, 2009 at 13:02:48:

Surely this has been litigated and tested in every state so I’d just do it and see what, if anything happens.

If the D doesn’t file his answer you’d just go ahead and call the judge’s clerk/secretary and ask for a hearing date to present your default judgment, take it to the judge for signing, file it and it’s a done deal.

If the D DOES file an answer the pro se issue might not even be raised by the D or his lawyer so no problem.

If it IS raised, then go pull the Am Jur* volume on LLCs and see what that legal encyclopedia says about pro se rep in courts in VA and it’ll give you, under state citations, whatever VA decisions do exist.

*Am Jur is American Jurisprudence, a big legal encyclopedia set with learned articles on every legal issue and topic and its status in every state. Law librarian will show you where they keep it.

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Albany going R? - Posted by John Merchant

Posted by John Merchant on November 14, 2009 at 09:58:26:

Wow, sounds like maybe NY legis was trying to help the small biz owner here and in my opinion this was a good move.

As far as what you say NY requires of an LLC, if I were wanting to acquire RE there I’d seriously consider having my RE owned by my DE or other outastate LLC so NY’s pub. requirement probably not applicable.

After all, any “person” in USA has a right to buy and acquire prop in any and all states and LLC & corp are legal persons.

One interesting thing going on all over is the increased $ amount of “Small Claims” jurisdiction; whereas it used to be maxed out at $5-25k, today it’s probably $50-100k in most or all states as they’re trying to reduce the case load on their higher juris. trial courts.

I’m in the process of bringing suit in WA on a defaulted note & DOT and I’ll be going to our Superior Court as my claim is (just barely) large enough to get me out of our small claims court.

Difference here is that P can serve D with legal process BEFORE P has to file his suit in Sup Court…then if D files a formal court Answer, P files his action in S Ct; whereas in lower County Court, P must first file his suit, then serve D with process.

So for the likely default Judgment situation which I have it’s less costly for me to go to Sup Ct.

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Re: LLC pro se - Posted by Frank Chin

Posted by Frank Chin on November 16, 2009 at 06:27:17:

John, you are right about this being litigated and tested. There was a lawsuit filed here in NY State arguing that the “publication requirement” is unconstitutional as it discriminatory against the LLC form of business, since it is not required of any other business form. I don’t recall the court’s logic in it’s ruling, but on narrow grounds, the court ruled that the requirment to be constitutional.

Now on the question of LLC’s not mentioned, I can see a constitutional issue arising if Corps are allowed to sue in commercial small claims, and LLC’s are not.

The best way is just to contact the local court and see where LLC’s should file suit. I was sued a few years back myself, and had to show up at night court, and I recall seeing many cases called where banks and department stores sued consumers. I can’t see a small store, operating as an LLC not allowed to sue in small claims, but Chase, Sears, and Citibank can.

It seems for business entities, a “certificate of authority” is also required to be completed and filed, and from this, Corp officers, employees, or LLC members can attest to their legitimacy in representing the organization as plaintiff, with the authority to settle the claim when needed.