Small Claims Court?

[kinipela]

So here's the deal. I applied for a craft show in August. The show was Dec 1. The application said the fee was non-refundable, and they would send out acceptance packets no later than Nov 5. As of Nov 25, I had not received anything, and had not heard anything. I put at stop payment on the check as lost, contacted show manager 1, and told her I was not able to do the show. She emails back and says the fee is non-refundable.

On Dec 14th, I get a voicemail from show manager 2 asking why I put a stop payment on it. I call her back and tell her that I had not received the acceptance packet, did not know I was even in the show, and had cancelled as a courtesy. She demands I release the stop payment and pay her $10 for the bank fee and says she will contact show manager 1 to find out about the packet.

She emails me and says that show manager 1 doesn't recall sending me a packet. And that she wants her money. Now, in my opinion, to my knowledge I wasn't accepted to the show, why do I owe them anything? So I respond that I will send her the $10 fee, but I am not paying the $35 since they did not do their part.

I got an email from her yesterday saying that if I do not send her a check for $45 by this Friday, she would take me to small claims court. I sent her a money order for $10 yesterday morning. I emailed her back and told her that I had done so as per the previous email, and that if she thought small claims court was worth it for $35, provide me with a number for her attorney where mine can reach hers.

My big deal is that the application (nothing signed, etc), says that the fee is non-refundable, AND that acceptance packets will be sent no later than Nov 5. So they can pick and choose what is enforced? That doesn't sound right to me. Nothing about this show sounded right.

Now I don't know much about small claims. I just found out that attorneys aren't "allowed" per say and that it's informal. Wouldn't the filing fees be more than $35? If she's not bluffing, what are my options? Would you have given in and just paid it?

I'm wondering if I would have been better off just not saying anything. I never got the acceptance, I shouldn't have "cancelled".

[thesoapbox]

I have seen people on Judge Judy and The People's Court sueing for as little as $10 because of the principle of it. They didn't care about the fees because they felt they were so in the right that it didn't matter. It could be scare tactics or you could very well find yourself in small claims court.

Lawyers are not allowed there.

Their wording sounds dodgy meaning they can rack up money on the fees and not approve a whole slew of people and STILL be able to keep those fees. I would have only signed up if it stated that fees are non-refundable upon acceptance to the show. The way it sounds is that you are paying the $35 and they are going to keep it whether you make it into the show or not.

If you strongly believe in how you are thinking on this matter then let it go to small claims, state your case and let the judge decide. All you will be out is $35 if you lose.

Angi

[malaki]

she is crazy. hell here it cost 50 bucks just to file the paper work. shes just trying to scare you to get the 35 bucks. i think you did the right thing. if she does want to file you will win anyway.

[Di_in_AZ]

They broke the contract by not performing on their end by not sending your the acceptance--once one provision of a contract is violated, it is null and void. If the no refund clause was not in the contract, they cannot enforce it. You should be able to go to your county website and see the fees for small court actions.

Edit to say that I see the non-refund thing now, thought that wasnt' there, duh. Still, they violated on their end, still null and void.

[kinipela]

They broke the contract by not performing on their end by not sending your the acceptance--once one provision of a contract is violated, it is null and void. If the no refund clause was not in the contract, they cannot enforce it. You should be able to go to your county website and see the fees for small court actions.

I can't find it on the Lake Co website, but that doesn't mean it's not there

The non-refundable clause was on the application, as was statement about sending out the packets no later than Nov 5.

Also, she stated in the email that "it would be in my best interest" to just send them the money.

[hometowncandles]

IMO~ I would just pay her, you could end up losing a lot more in the long run.

I am getting ready to file a claim in small claims court. I'm not sure if it works the same in all states or not, but in KY if the Judge rules in favor of the Plantiff, they can not only recoup the actual money they are out, but they can also get court cost and any other fees or monies the Judge deems reasonable and necessary. Such as, time lost from work due to pursuing this matter, bank fees they incurred from you cancelling the check, etc. and it's up to $1,500 in KY.

And more than likely, the judge is going to ask you why you didn't call and inquire as to why you didn't get an info packet before cancelling the check.

I know it stinks that you didn't get your info and you didn't get to do the show, but when you apply for shows and don't hear anything by the deadline, you have some obligation to contact them about it. Oversights do happen to everyone, especially when you are dealing with something as large as most craft shows.

Jennifer

[Di_in_AZ]

That is standard business law as far as not performing under a contract and it being null and void. I would send them a letter back stating that their failure to send you an acceptance letter, per the contract, made that contract null and void. Tell them you don't intend to pay the fee as the contract was null and void and you were no longer bound by it. Then tell them if they would like to pursue it in court, then so be it, you made them whole by refunding their loss of $10 in bank charges, even though you were no longer obligated by the void contract.

I am not a lawyer, just remember this from business law, but they will probably back off, that is something they can easily find on the internet.

Edit to say, seeing as they breached the contract by not sending you the acceptance packet, you are entitled to any damages you may have incurred. If you did not do a show because you waited on that letter, I would throw that in for good measure, just tell them THEY breached the contract--the law is on your side. I would love to see them try and tell a judge, "no, we didn't send an acceptance letter to let her know she was in...but"--no leg to stand on.

[barncat]

I know when we did it minimum is $125 to file. I would have not paid it. But I'm stubborn about things like that.

[Di_in_AZ]

I know it stinks that you didn't get your info and you didn't get to do the show, but when you apply for shows and don't hear anything by the deadline, you have some obligation to contact them about it. Oversights do happen to everyone, especially when you are dealing with something as large as most craft shows.

Jennifer

Under the law you are not obligated to remind people to perform under the contract. If they don't perform, they have breached it--and by their own admission, they didn't send her an acceptance letter, she was not obligated to contact them and remind them.

[momtohaley2004]

I think you did the right thing, but just wanted to let you know something in case you don't know already....PLEASE, if you make any contact by mail with these people concerning the fact that you won't pay because of breach of contract, etc then send it certified mail return receipt. It will be expensive but if you go to court, you will at least have the documentation that they did or did not accept your letter. Also, keep a copy of this letter for yourself. Just to be on the safe side, I copy all my contracts with shows and keep them in a file folder. If ever needed, I can refer to them. However, I've noticed that many of the small shows in smaller towns, have small town rules. By this I mean, they say one thing and do another and for them it's as if it's ok. They like to make up their own rules. So, no matter what happens, document, document, document. Record dates, times, etc of phone conversations. Save emails. Make notes about phone conversations, etc. IF you end up in court this will help your case.

I'm not sure how small claims work, but I was talking to my attorney this past week on a case we are dealing with now concerning the deceptive trade practice act and if we go to court, it will be small claims cus it's under ten thousand in the state of TX and my attorney will be there. It's almost 6 thousand dollars and she referred to it as "small claims". I can tell you first hand if they want to spend the money to take you to court then they will be out more than they would get otherwise. Beware though, a court can rule in favor of them if they see fit and then you are out attorney fees, possibly their attorney fees too, time, court costs, etc.

[debscent]

I see this differently. You knowingly paid the fee with the clause of "non-refundable" and based on the fact that you did not get a confirmation packet does not release the non-refundable clause. You breached the contract you willingly entered into. You should have made contact before you stopped payment. The fact that you did not receive an information packet is simple clerical error but you knowingly stopped payment with the knowledge of a non-refundable clause. See what I mean?

Stay out of court, it's a waste of your time and energy. Did you incur a fee to stop payment? Let the $35.00 go, it's not worth the aggravation. I don't think you will win this one unfortunately.

[Di_in_AZ]

They breached contract before she did. Enough said, armchair lawyer post again (myself included ). Check your law at your local library and you can read on basic contract law in Indiana. Good luck.

Edit to say: The easiest way to look at this is the consideration (what each party gives in a contract). So exchange goods for the service here. If you purchased a book that had a contracted specified delivery date (timing is important when you are planning shows) then would you pay for the book that wasn't delivered, or would you figure it was your fault because you didn't remind them to send you your book?

Saying that payment is non-refundable when the item hasn't been delivered wouldn't fly either--the show organizers didn't present their consideration so it is incorrect to say she is liable to pay for what she didn't receive. Can you imagine if you went into a store and they told you once you paid it was non-refundable and then they didn't give you what you paid for and claimed they could keep your money because it was non-refundable?

[momtohaley2004]

Yes, you SHOULD have contacted them before stopping payment. I don't really think they will take you to court over this, but usually even if they do, you should have a minimum amount of time to mediate or pay before you go to court. In my case that we have right now, the guy is given ten days to pay. I don't know the laws in other states and I'm not a lawyer, but I say BOTH of you are in violation. What you do is your choice, but I really don't think it's worth the stress. IF they demand payment again, I'd just pay it if I were you. They may simply drop it and be using small claims as a tactic to get you to pay. Then again, they may not. Regardless, I wouldn't want to do this show again and I don't think after all this they'd even allow you to do the show again considering you didn't do it in the first place.

[kinipela]

I see this differently. You knowingly paid the fee with the clause of "non-refundable" and based on the fact that you did not get a confirmation packet does not release the non-refundable clause. You breached the contract you willingly entered into. You should have made contact before you stopped payment. The fact that you did not receive an information packet is simple clerical error but you knowingly stopped payment with the knowledge of a non-refundable clause. See what I mean?

Stay out of court, it's a waste of your time and energy. Did you incur a fee to stop payment? Let the $35.00 go, it's not worth the aggravation. I don't think you will win this one unfortunately.

So if the check was lost in the mail, I should have assumed they got it and were holding on to it? If they got the check after the deadline and I didn't know, then what? Is it a contract if nothing is signed? "Contract" is not listed anywhere on the application.

No, I did not incur a fee for the stop payment simply because I work at the bank.

[sockmonkey]

I don't know the details of the contract, but they probably didn't have to have a signature on the application. You submitting the check constitutes your acceptance to the terms on the application, and many times a document will state such terms. It may also state "not responsible for lost or misdirected mail," which is probably what they will end up saying happened to your packet even though they have already told you they didn't remember sending you one.

How can you prove in court you didn't receive the document if they say they mailed it? You won't be able to. How will they be able to prove they mailed it if it wasn't sent certified or registered? They won't be able to. But they will be able to say that everyone else got their packets and participated in the event. They will also say that you knew since August that packets would be sent out no later than Nov. 5th and that they had no way of knowing that you hadn't received yours until you called 20 days after that date to tell them you were canceling. You had months to prepare for the show and then 6 days before the show you cancel? Most people would have panicked within a few days after the 5th if they had not received the packet and contacted them about it, so from that respect it does not look good.

[kinipela]

They will also say that you knew since August that packets would be sent out no later than Nov. 5th and that they had no way of knowing that you hadn't received yours until you called 20 days after that date to tell them you were canceling. You had months to prepare for the show and then 6 days before the show you cancel? Most people would have panicked within a few days after the 5th if they had not received the packet and contacted them about it, so from that respect it does not look good.

This was the first show I had signed up for (did another show in October, but that went smoothly), so how was I to know what to expect?

[kinipela]

Here is what the application says with personal info removed, all else is exactly how it states, including errors... :

(Show name)

Saturday, December, 1st 2007

10:00a.m.-2:00p.m.

(Location)

(phone number)

Registration Form

Application Deadline: November 1, 2007

Name:

Address:

Phone:

Cell:

Website:

E-mail:

$35 per table: (6ft table and chairs) Please specify number of tables #

Need electricity? Outlets are available at no additional cost.

In order to make this event a success, a flyer will be provided to you in order for you notify your customers, friends, neighbors, relatives and anyone else you feel would enjoy the Mother's Day Extravaganza Craft and Vendor Show!

Make checks payable to: (show manager 2 name)

Questions? (phone number)

Product Name: Please list in detail all of the items you are selling for approval. You may be asked to remove anything that is not on this list:

List display items you will be bringing such as racks, floor displays, etc.

TERMS

- Please be considerate of other Vendor's space

- Set up time will be Saturday, December 1st 9:00. a.m.

- Registration fee is non-refundable

- Confirmation of your acceptance will be sent out no later than Monday, November 5, 2007

- You are encouraged but not required to hold your own raffle or door prize.

[momtohaley2004]

I agree w/Sockmonkey in that in some respects it doesn't look good. Honestly though, all this will turn into will be a he said she said and he did this and she did that thing. If they request the money again, pay it. It's water under the bridge. I would have done the same thing first time around, but if they ask again, I'd just say here and forget about it to avoid the stresses and hassles that come with court. Whether or not they are out to scare you isn't the point. The point is, in my opinion, neither of you completed the terms of the contract. YOU should have contacted them sooner and THEY should have mailed the form to you. BUT, I have done several shows and the information sometimes just doesn't get sent as promised. Particularly one show in October....I had to call to find out set up times, etc because everyone thought someone else had sent out the information. I always call to find out what is going on (another reason I keep copies of the application) and usually it's clerical error. I always show up to the show and even for the one show I wasn't able to make due to an ill daughter and no one to watch her, I called and said I wasn't coming, yet they still cashed my check. You didn't see me putting a stop payment on it simply because I couldn't make it. Terms say "non-refundable."

Was there an area where you signed stating something as I agree to abide by the set forth rules, etc? If not then I don't see how they can hold you to something, BUT..................

None of us here are lawyers though. So your best bet if you want to play this thing and cause useless amounts of stress upon yourself is to call your lawyer and get a free consult. Laws differ per state.

[momtohaley2004]

Did you sign agreeing to the terms when you mailed the application? If so then you owe the money....PERIOD

[kinipela]

See the post above with the application. Nothing there to sign or asking to sign. Everything is how it is on there, except for the names/address/phone removed.

[momtohaley2004]

I find that odd because EVERY application I have done has a spot for you to sign. I'm not sure how to take this w/o a signature. Not sure if it constitutes a contract or not. I'd assume it did since it states terms and then by sending in your money and filling out the paperwork, you are accepting of the terms. That's a grey area.........but in reality...come on, why fight it just send them their money, get them off your back and move on. Is it really worth all this stress and anxiety for you? Do you really need the 35 dollars that badly? If you did then you should have gone to the show. If you can't afford to loose the money then don't sign up for the show. There is never a guarantee you'll make your entry fee back especially when the weather is bad. That's just my opinion.

[debscent]

If you do go to court let us know what they say. Nothing like adding something stressful during the holidays, huh?

[thesoapbox]

According to what you posted, it says the fee is non-refundable. It doesn't give explanations or reasons as to why the fee would be refundable. Simply it says non-refundable. The way I take that statement is that no matter what, your fee that you send in is non-refundable.

No clauses, no exceptions, nothing...simply non-refundable once you send it in. And by sending in that payment that is telling them you agree to their terms without having to sign a thing.

Angi

[kinipela]

According to what you posted, it says the fee is non-refundable. It doesn't give explanations or reasons as to why the fee would be refundable. Simply it says non-refundable. The way I take that statement is that no matter what, your fee that you send in is non-refundable.

No clauses, no exceptions, nothing...simply non-refundable once you send it in. And by sending in that payment that is telling them you agree to their terms without having to sign a thing.

Angi

Then that also means that they agree to send me the packet by Nov 5th. Which didn't happen. Can't enforce just one part and not the other.

[Di_in_AZ]

A contract has to have consideration on both sides, so you cannot simply say that it is not refundable and not do your part. Then they could take all the money and run--you can say non-refundable but if you don't do your part, you cannot keep the money.