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How to get $2,500 per junk fax you receive (if you live in California)Important Notice: This information is intended to provide general information only. If legal advice is required, the services of an attorney should be obtained. Not every situation is the same. Under law, we cannot give you legal advice, nor can we encourage you to sue someone. See the Disclaimer. NOTICE: As of October 5, fax.com is kaput. Eric Wilson will soon file for bankruptcy based on the judgments that people already have against him. He's also dropped from sight and fled the state. Therefore, for right now, suing Wilson is not going to be a very satisfactory use of your time (at this time). We suggest you either:
OR
If you've got a judgment, then please register it at: Junkfax registration for judgments This page documents the process I went through when I filed. This process works. For example, I got small claims judgments for over $40,000 in a single day against a fax.com advertiser and the top officers personally of the firm. I appeared in court and spoke for 10 minutes. There were only 16 faxes. Here are the judgments: Judgments for over $40K in one day. Others have brought single cases against Wilson and won. Here's the proof: Judgments Won Against Eric Wilson Here's a nice ruling from a small claims judge which is handy if you need to educate your particular judge: BickelmannDove.pdf If you don't live in California, see How to get $2,500 per junk fax (Outside California). Two critical things to do as soon as possible:
You have two options:
First, thing you should know is that I do not hire an attorney. If I hired an attorney, I can't use small claims. That means my case would take 2 years and cost me a lot of money. Instead I do it myself. The first time it is a bit daunting, but subsequent times are easy. Sort of like riding a bike. I started with one case, even if I have 100 faxes and went through the entire process of going to court, winning, going to the appeal, winning, and then collecting. Once I had the whole process down and had been through it once, I've filed 15 or more lawsuits at the same time and scheduled them all to be heard on the same day. The first time through, I looked for people in my area that can assist me the first time by looking at the Junk fax case status for people in my area. The process describe here has been duplicated by others who chose to take action. You don't have to be an expert to win . On July 15, 2004, Mark Klein won a default judgment of $2,500 on a single fax in Palo Alto small claims. Eric Wilson did not show up. Because Mark can prove he was served (since he filed a countersuit), Wilson can't file a motion to vacate. And because Wilson didn't show, he can't even file an appeal! Mark Klein can then repeat this process with every fax.com fax he gets. If Wilson had appeared and appealed, Klein could have invoked extra penalties. The choice on whether to take action or not to enforce your rights under federal law is completely up to you. We decided to take action, and so we started with a single fax and went through the entire process below. It's not that hard. Once you've done it once, you just replicate it each time you receive a fax. Do not try to get creative (e.g., serving other parties who are also liable for sending the fax) if this is your first time. Stick to what has worked for others, i.e., follow the examples below. You can do everything right and lose. This is because there are very bad judges everywhere. So if your judge rules incorrectly on your case, (e.g., tells you you can't file in small claims court, or that you have to consolidate your cases, or that there is a $50 per fax law in California or that you can file only two suits for >$2,500 per 12 month period), give up. You are wasting your time. You can only get justice with judges who understand the law and the only way you can determine this is through actually filing and winning. Below is information that you may find to be helpful to filing a case. If you follow the procedure, you'll likely win (nothing is guaranteed with respect to our system of justice). Then you'll send your claim to a collection agency that specializes in Eric Wilson collections. While not a slam dunk, it's a good bet you'll get your money. This page documents the process we took when we filed against fax.com, but it is written in a manner that is intended to show the steps involved in filing a suit. This is not legal advice; we suggest you contact an attorney for that. Nor are we encouraging you to file suit. We are only posting instructions we wrote for ourselves on how we did it. If you do not live in California, please see How to get up to $1,500 per junk fax (outside California) Total out of pocket cost: a $22 filing fee (paid to my local court in Step #4) plus a $25 cost to serve. Both are added to my judgment when I win (see details below) and thus are fully recoverable. Amount of my time: A little more than an hour Restrictions: This method is only for faxes you get from fax.com (see step #1) Step #1 Determine how many "fax.com" faxes I have (5 minutes)
If we found we did not have a fax.com fax, we STOP HERE. We never sue unless we are sure (or reasonable confident)! CAUTION: Always do your homework before you file. If you file frivolous lawsuits without making an effort to determine whether the Defendant is at fault, not only can you be sued, but your credibility in future suits will be jeopardized. I never file unless I'm sure that the preponderance of the evidence is in my favor; the more evidence, the better. If you are not sure, do not file. Step #2 Send a demand e-mail to Eric Wilson (5 minutes) Here is an Eric Wilson Demand Letter I wrote for my case (Important: click the Cancel if it pops up a dialog box asks you for a password; I sure would like to know how I can get rid of that "feature"). If you use it, be sure to:
Be sure to print out and save a copy of each demand letter so you can hand it to the judge. He'll ask for it. You do not need to send your demand letter using certified mail; regular mail is fine. Mail it. We never lie about anything. We always use the exact number of faxes we have in the demand letter. We started with just a few faxes to make sure all the judges would rule favorably that we might get. If you follow in our footsteps, update your vote at http://finance.groups.yahoo.com/group/junkfaxCA/surveys?id=1206250 Step #3 Fill out our address on the pre-filled out small claims PDF form
with our address (5 minutes) There is a $5,000 limit per claim in small claims. Each fax will be a separate "claim" in small claims, so you don't have to worry about the $ limit in small claims. We file a case for each fax we receive, $2,500 per case (saving the two $5,000 cases for special occasions). But we started off with one case first to prove to we can both win and collect before filing the other cases. It's simplest to file only against Wilson. If we have multiple defendants, we just increase the cost of service. We get to collect only ONE $2,500 (from any Defendant(s), so long as you don't try to collect more than $2,500 total from both on the claim). If we over-collect, we'll return the excess funds to the levying agent. Go through the entire process with just one claim first (one fax). After we've been all the way to a judgment and collections, then you can file multiple cases at a time. Our courthouse can be located here: File Your Claim. You'll need to enter that address at the top of the form. We use this pre-filled out small claims form. We double click on the Yellow comment symbols for instructions in each area. We make sure we've double-clicked on each comment and followed the instructions. If we were not suing as an individual, we'd have used this table for how to fill out the Plaintiff box and would have filled in our fictitious business # and expiration below our name.
We enter the date of the fax we are suing for on the claim form. However, we don't use the actual fax until we appear in court. So the fax itself is NOT filed with the court or served on the Defendant. We then print the form. To ensure we don't print the comments, we are sure that in the Print dialog:
We verify everything is correct. Then we sign it. We have Acrobat Standard or Professional, so we can save it (for next time). Notes: The example provided is for Wilson. You can sue who you want, but at this time, the examples provided for what we do are all for Wilson. There is plenty of evidence (such as the FCC Notice of Forfeiture) that others are liable. However, there is more evidence for Wilson (such as the Covington Judgment), Wilson is collectible, and it simplifies our lawsuit and reduces your costs just to name one defendant (for now). If I'm not sure the fax came from Wilson (e.g., the removal number is fax.com but the headers do not match fax.com), or just want to be extra sure of winning, I also fill out the subpoena form at the same time to get the list of fax.com faxes and customers. Wilson is under court order to have preserved this. So he has to have it. If he doesn't produce it, he's in contempt of court. You can then construe that the evidence shows what you claimed it would show, i.e., that they are a fax.com customer. Wilson will NEVER bring a list of fax.com advertisers and faxes to court since that could be used in other cases. So if you go through the extra effort of the subpoena, you win by virtue of Wilson's guaranteed default. Step #4 File our claim (and subpoena) at the nearest small claims courthouse to where
we received the fax (30 minutes) The subpoena is free. Bring 3 copies of your subpoena to the clerk. He'll sign one and stamp the other two. After you serve a copy of the subpoena (i.e., one of the two stamped versions), you file the ORIGINAL subpoena with the proof of service with the court. So it's subtly different from the process of filing a claim where the court keeps the orginal and you serve a copy and file the proof of service with the court (in this case, the court ALREADY has the original claim). Step #5 Serve our claim (5 minutes) If we are serving Eric Wilson, mail the "service copy" that you got back from the court to: Bill Cohen Be sure to include a check for $25 payable to Bill. He normally charges $40 to serve the claim, but Bill is able to offer a discounted price on the service due the volume of cases he is serving against Wilson. We make sure we have the claim to him by the end of the month so he can serve Wilson in an expeditious manner. When we get the judgment, the cost of service of $25 (and the $22 filing fee you paid) will be added on to our claim by the judge when we win. Bill will send us back a copy of the proof of service and he'll also mail the original proof of service directly to the court since this should be filed with the court within 24 hours after service is complete. Step #6 Appear in court, explain to the judge our argument, and win (60
minutes) Here's a list of people we contact with your court date and we ask them to appear as expert witnesses. Generally, we'll call them in advance to let them know of the date and then on the date. If Wilson shows up for roll call, we call our witness and ask them to appear. Please use the contact link to request your email be added here once you win and feel comfortable to help others:
We are always sure to bring: 1) a copy of the demand letter you sent, 2) a copy of the proof of service (the court should already have this but it's better to be safe), and 3) a copy (or the original) of the fax you received. We ask for $2,500 (this is less than the $3,000 we are entitled to) plus costs (service + filing). Here's the kicker: Wilson must appear personally to defend himself. He cannot send anyone in his place! Attorneys are not allowed. It is likely that he will not appear and you will win, but you must wait around in the courtroom for your case to be called (that is how you'll be spending most of the hour in this step...waiting) and provide enough evidence to prove your case to the judge. If Wilson doesn't show up (likely), and your argument is good, you'll win what's called a Default Judgment (i.e., the Defendant didn't show up). Wilson can't appeal that, but he can try to vacate the judgment. Again, he must appear personally to win. If there are enough people suing Wilson, he ends up spending all his time in court which keeps him from sending out junk faxes. IMPORTANT: If we always decline to use a pro-tem and re-schedule even if Wilson does not show up. Pro tems (temporary judges) usually give really bad decisions on TCPA cases because they aren't familiar with the law. The other reason is that you want to educate the judge once on the issue so your future cases will be much easier. Pro tems are different each time; judges or commissioners are the same. People (Dick Fay, for example) have lost cases even when the Defendant didn't show up because they accepted the pro tem. In one case, the pro tem ruled you can't sue Wilson, you must sue fax.com and never gave the Plaintiff a chance to explain that since Wilson is an officer with full participation in the action and the statute says "person" that Wilson is personally liable. Here is a simplified argument that I presented for $2,500 per page when I went to court against Wilson. Read it and make sure you understand it all. I always present your case in 5 minutes and preferably less. I NEVER READ from a script. Instead, I use the written document as stuff to give to the judge and speak using the following list:
It's unlikely he'll show. If he does, he's been known to lie. He might claim "he's just a shareholder" or that he didn't send the fax in question or that he quit working for fax.com in mid-2003. Then it's your word against his. Without proof, you'll lose. That's why the Kirsch Declaration is critical. See the argument above which addresses each of the excuses he uses. 2 things we are sure to do to prepare: 1) We read through the entire Q&A on this site once. It's long, but it's worth it. We'll know the law that way and be prepared for the unexpected if Wilson shows. 2) Give the judge a copy of:
If this is our first time, we bring someone with us who's done it before as your expert witness. This lets them "chime in" if we get stuck. Here's what Mark Klein did:
Here's the argument Gene Carmean used to win $5,000 for two faxes: Carmean fax.com argument Step #6.1 If you lost, request to vacate/appeal You can file a Vacate Request (not a motion to vacate). Here's what Jim Sutton did when he got a bad ruling from the judge. He used the standard Vacate Request form and supporting docs: The same judge will review it. If that doesn't work, then appeal it. You appeal will be accepted by the clerk and the judge and you'll get your request. See AppealofVacateRequest.pdf and Appeal of Request to Vacate. You should also report the judge to the Presiding Judge in your county if the judge seems incompetent and doesn't understand basic legal principles (don't do this if he just disagreed on the facts). Step #6.5 Repeat for any appeals If the Defendant appeals, you just do the exact same thing all over again in a different court room. Everything is still informal, but either side can bring an attorney. I never do. Here are the key rules on appeals:
Step #7 Let junkfax know that you won or lost I use the contact link on the left and let junkfax.org know you've won and whether you are willing to assist others in your county. If so, they'll post your name and email here so others can contact you. If I lost based on an improper ruling of law, I can file a Request to Vacate the decision (*not* a Motion to Vacate; that is different) and you can also appeal to Superior court if the judge denies your request. Step #8 Repeat the process, but this time with more faxes If I won, I wait 30 days. If I get paid I am happy. If I don't get paid in 30 days, contact us. In the near future, we'll create a new Yahoo group for people with judgments to collect so that you can leverage what others are doing, e.g., use the same collections firm. It is much more efficient to collect multiple judgments at once. If I don't get a SC-133: Judgment Debtor's Statement of Assets form from Wilson that is fully filled out within 30 days after the judgment, I can file to have Wilson arrested and brought before my court. See below for details. If you want to collect on your own to get experience, read on. Step #9 As soon as I get the Notice of Entry of Judgment from the court, I
wait for the Judgment Debtor's Statement of Assets form from Wilson I can also serve the debtor with 35 interrogatories every 120 days that he must answer in 30 days or I'll haul him back into my court. I can also serve a subpoena on the debtor. All from the convenience of my home court. If he doesn't lie, I seize the assets he told me about. If he lies or if any of these are incomplete, wrong, or simply not returned, I file an OSC re: contempt and the short story is that Wilson gets arrested and sits in jail until he pays the bail of my judgment amount. Details:
Once Wilson is arrested, he can post bond and promise to appear in front of MY judge in MY local court to explain why he was in contempt. Each time Wilson is arrested, the amount of bail doubles. And normally, the judge will let you keep the bail and apply it to your judgment. However, if he doesn't appear in court after bailing out, he'll be arrested again, but this time, because he was arrested for a failure to appear as promised, there will be no bail and he'll sit in jail until his court date. Instead of an ORAP, you can issue written interrogatories that they have to answer or be held in contempt: I can do an ORAP (EJ-125) every 120 days (or more frequently if I can show good cause like he lied or moved assets around). I have a registered process server serve it so I can have Wilson arrested (and collect attorney fees) if he doesn't show. I always include a subpoena served at the same time with the ORAP to get as much information as I can. He should also be instructed to fill out the assets form and bring that with him, to be safe subpoena all documents needed to fill out the assets form including all bank account information and copies of current bank statements so you can verify every account that was used to transfer funds. Bail amounts are sometimes a fixed amount for failure to appear; other judges set it based on the judgment amount. Normally, if they do appear, they don't comply with the subpoena you served them with with the ORAP. So it's back into the courtroom and the judge orders them to appear the next day with the documents "...or else." At that point, there seems to be 100% compliance. I don't know of any case that has "tested the system" beyond that point. If the debtor is >150 miles away, you have to file the request and hold the debtor's exam in the court nearest the debtor. You can have an attorney do the exam for you, or do it yourself. If Wilson still doesn't pay, then I go to the judgment court (i.e., my local court) and have them issue a Writ of Execution that is directed to the county where the assets I want to seize are located. I can use that form to seize Wilson's personal assets or I can direct this at any third party that owes Wilson money. For bank and financial assets, I have a process server execute the writ (they'll include the EJ-150 Notice of Levy instruction form); for physical possession of an asset, I send it to Sheriff (the rules for your sheriff will be posted on their website giving costs and # of copies to provide). The Sheriff can't enter his house, so if I want to seize anything or everything in his house, I have to get my judge to sign a seizure order first (see the Nolo book on Collecting Judgments in California) If I were suing his company, I can also file with the Writ an Affidavit of Identity (see How to get up to $1,500 per junk fax) including evidence that company A=company B so that I can choose which company to have the writ issued against. This gives me a lot of flexibility since once I have a judgment against one of Wilson's companies, I can go after any of the alter egos without having to go back through the litigation process again. Alternatively, I can use 982.5(1) ask my local process server to garnish Wilson's wages (up to 25% of his income). If his employer doesn't cooperate or tries to goof, I can go after the employer for the judgment and there are also criminal penalties available to me (criminal penalties means jail time for the offender(s)). If those don't work, I can sell his house (even though he's put it in a trust), car, etc. If all of these don't work, there are still more ways. You get the idea. The point is that if you are diligent and he has the money, he pays you off plus all your costs of collection. See the instruction sheet (sc130) for more info. After judgment, either side can have attorneys present (e.g., I can have an attorney examine him and not show up at all, but he has to appear personally, but he may bring an attorney). If none of those techniques work, I call my collections attorney (who is one of the best in the state) for advice. Step #10 If the above technique don't work, send your judgment to a collector or
collect yourself When you get a judgment, send us an email and we'll provide you with a list of people you can contact if you want to send it out to a debt collector. The amazing thing is nobody that I'm aware of has ever really tried collecting from any of these guys. If you know what you are doing, there is only one way out which is to sell all your assets and declare bankruptcy. But you get to do that only once every 7 years. So even if they declare bankruptcy, that's really good news, since now you can sue them for the rest of your faxes. That's why we choose to file a few cases at each time; Roth and/or Wilson may file for bankruptcy and then you can file the rest of your cases after that, when they can no longer discharge their debt to you. We have 10 years to collect your judgment, but we can renew the judgment if they haven't paid. And we get interest on the interest (10%). You'll probably get paid within 90 days (the collection agency lumps them). For the future, we might also consider adding Access Sales case for out of state plaintiffs since:
For more info, see:
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