BY BEN LIVINGSTON
Suing telemarketers, junk faxers and email spammers for fun and profit.
Chapter 1 Zen and the art of small claims
Chapter 2 What is suable
Chapter 3 Get their information
Chapter 4 Forms
Chapter 5 Court clerk-fu
Chapter 6 Serve notice
Chapter 7 Consider settlement
Chapter 8 Consider dropping suit
Chapter 9 Subpoenas
Chapter 10 Bring down the almighty fury in the court
Chapter 11 Collect stipend
Notes Laws and links
Experiences Some stuff that happened to me
This guide is written for those who want to better the world and the self through lawsuits. It focuses on filing small claims against telemarketers who use recorded calls, junk faxers and a large percentage of spammers. (See Chapter 2, "What is suable.")
This guide is not written by a lawyer and it should not be construed as legal advice. One should assume that much of the content in here is incorrect and following this guide to the letter will likely result in dismissal of one's small claim.
That said, I have tried my best to relate my experience and knowledge on the subject -- gained entirely through self-education -- and provide references to existing law and case law. My intent is to encourage others to start taking action against these extremely obnoxious marketing tactics. Together we can slowly turn the tide, one offender at a time.
This is a "living document." The copy you have is version .99f -- meaning it still needs some changes before I'm willing to start mass-production.
My small claims web site is located at http://smallclaim.info/ and has much more info on my cases, including copies of nearly every court document I file, judgment checks and audio transcripts.
This is all Copyright © 2001-2003 by Ben Livingston. One may make copies of this work in its entirety provided one does not charge more than $2 per copy. One may not charge any fee whatsoever for partial copies of this work as its limited usefulness is greatly diminished with omissions.
GRATITUDE & CORRECTIONS
If one enjoyed this material or found it useful, consider dropping me a line. If one would like to help pay for copying costs or some cartoony ninja illustrations, please send a few bucks to the address below. If I'm completely wrong about something -- as I often am -- please let me know. The same goes for editorial, grammar and spelling changes.
Ben Livingston can be postal serviced at PO Box 95227, Seattle, WA 98145. I can be emailed at ben at inwa dot net.
CHAPTER 1: ZEN AND THE ART OF SMALL CLAIMS
Before starting the small claims journey, it's best to look within and find reasoning that is pure. To be a true small claims warrior, one must clear the mind of selfishness and let altruism flourish. One must start with the notion that a lawsuit is an act of selflessness, filed for the benefit of fellow people, neighbors, brothers, sisters. Money is a stipend offered so that the true warrior may continue the art.
One must never consider legal options without first considering motives of both plaintiff and defendant. The question asked should always be, "what action will most further the cause of stopping these egregious crimes?" Some people hire outside firms believing these practices are legal, and in some cases compassion is warranted. Learning where to draw the line is a constantly refined warrior sense.
Always remember this maxim: anyone can sue obnoxious marketers, but only when the mind is clear of selfishness can one be a true small claims warrior.
CHAPTER 2: WHAT IS SUABLE
One must read the laws before attempting any lawsuits. Some may fear legalese, but not the warrior. An ignorant litigant is a successless litigant. This guide focuses on three Washington State laws, two of which are similar to existing federal law:
RECORDED TELEMARKETING CALLS -- RCW 80.36.4001 prohibits the use of "automatic dialing and announcing devices," or ADADs, for commercial solicitation. These recorded calls are also illegal under Title 47, Section 2272 of the United States Code.
The impetus for this law -- according to a story that could very well be an urban legend -- was that many moons ago a convenience store was held up and the person working was unable to call 911 because a recorded telemarketing call would not relinquish the line.
The federal law seems weaker than state law. Under federal law, it is not illegal to call a business with recorded calls unless it is done "in such a way that two or more telephone lines of a multi-line business are engaged simultaneously." Calls to residential lines, emergency numbers, guest rooms at health care facilities, pagers, cell phones or "any service for which the called party is charged for the call" are illegal.
Washington law is much simpler: commercial calls are illegal, regardless of who receives them. Conversely, this means that the political calls one received from Gary Locke last election season are not suable, as they are not commercial calls.
Both of these laws set "statutory damages" -- meaning damages specifically enumerated by law -- at $500 per call.
UNSOLICITED FAXES -- RCW 80.36.5403 forbids unsolicited faxes "promoting goods or services for purchase by the recipient."
Federal law -- again Title 47, Section 227 -- seems to be a bit stronger as it forbids "unsolicited advertisements" sent via fax. An unsolicited advertisement is "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission."
The statutory damages set by these laws are $500 per fax.
UNPERMITTED EMAIL -- Contrary to its "Washington's anti-spam law" moniker, spam is not illegal in Washington State. RCW 19.1904 outlaws commercial email that a) uses a third party's domain name without permission; b) misrepresents or obscures information used to identify the point of origin or transmission path of the message; or c) contains false or misleading information in the subject line.
Most spam coming from a Hotmail or Yahoo address is illegal, because Hotmail or Yahoo did not give permission to use their domain name -- indeed they forbade it. Spam sent from a nonexistent account is most likely illegal, as the sender "misrepresented the point of origin" of the message. Spam with a subject like "The information you requested" is also illegal unless, of course, the information was indeed requested.
Washington is widely regarded as having the strongest "anti-spam" law in the country. No similar law exists at the federal level. Washington's law was challenged as a violation of the Commerce Clause of the U.S. Constitution, which leaves interstate commerce regulation up to the federal government. The law was initially ruled unconstitutional, but on June 7, 2001, the Washington State Supreme Court unanimously upheld its constitutionality. An appeal to the U.S. Supreme Court is expected.
A spammer must "know" one is a Washington resident in order for their spam to be illegal. Under RCW 19.190, a spammer "knows" one is a Washington resident if that information is available, upon request, from the registrant of the domain name in one's email address. Before suing spammers, one should ensure that their internet service provider or whoever owns the domain name in their email address will inform inquiring minds that one is a Washington resident.
RCW 19.190 sets statutory damages at $500 per email. An "interactive computer service" -- i.e. an internet service provider -- can sue for $1,000 per email.
CHAPTER 3: GET THEIR INFORMATION
It is important to have the correct information for the defendant, or one will lose the battle. Here is an incomplete and illogically ordered list of things to do when victimized by illegal marketing tactics.
RECORDED CALLS -- When the recorded voice begins, grab a pen and paper or go-go gadget Notepad.exe. Transcribe as much as possible, most importantly names, phone numbers, and addresses. Recordings will often say the name of the company quickly at the beginning, so move swiftly, as the dragon would. Listen to the entire message and scribble, scribble, scribble, or type, type, type.
If the recording offers an operator at the push of a specific number on the dial pad, push that number. If an operator speaks, casually ask for the company's information -- name, address, phone number. Most operators are forthcoming, some may ask for reasons, and a small number may hang up. As a reason, one may offer small claims notice, simple interest in the company calling, or warrior training -- reason-giving is a constantly refined warrior sense. Consider listening to the operator's sales pitch before asking for this information. Nonchalance is a good weapon here.
If no operator option exists, one must work from the call transcription. Call any numbers provided and ask for company information.
INFORMATION IS THE WARRIOR LIFEBLOOD -- Recorded calls and faxes are generally much easier to track than spam, since nearly all of the former will have some sort of contact information. For the time being, let's assume one has some legitimate information such as a phone number, name, address, etc.
The ultimate goal is the offending party's business records; the address on these records is where one will "serve notice" -- or mail a copy of the notice of small claim. (See Chapter 6, "Serve notice.") To find these records, the warrior will likely, though not always, need a name. (Some databases are searchable by phone number.)
First, figure out what state the offending party is in. Take note of area codes, as they may indicate the offender's state and even city. One may ask the telemarketing operator for this information or search the web for the company name.
CORPORATE RECORDS -- To find their business records, the web is the best starting point. Some states do not have business records online and some states charge for this information, an affront to the warrior spirit. Most have corporate records online, while some, like Washington State, have non-corporate business records online, a great benefit to the warrior. The best web site I've found for locating records keepers is www.searchsystems.net.
Corporate records are usually maintained by the secretary of state. Try searching for them in their home state, as well as Washington.
If the secretary of state does not have corporate records online, call them. If they charge a fee for corporate record lookups, express displeasure and consider paying them.
If one is unable to locate corporate records, one may be searching in the wrong state or with the wrong name. However, it is more likely that the offending party is not a corporation or not using their corporate name. The next step is to start looking for their fictitious business name registration.
FICTITIOUS BUSINESS NAMES -- If a company or person is doing business as anything but their official name, they must register a "fictitious business name," also known as a trade name or doing business as (D.B.A.) name. These are generally filed with the county clerk or recorder. In some cases, they may be filed with the state or even the city.
Locate the offending party's county (resources.rootsweb.com/cgi-bin/townco.cgi) then contact the county clerk. Some county clerks have fictitious business name searches available from their web site, though this is not usually the case. First ask them if fictitious business names are filed with the county, and if they are, ask them to search for the name one has. If fictitious names are not filed with the county, ask them for the correct entity to contact.
If one locates the offending party's fictitious business name record, order a certified copy, meaning a copy the clerk stamps or signs.
DERIVATIVES AND THE ALMIGHTY GOOGLE -- If one has trouble locating the company, it may be under a different name. Consider searching for derivatives and misspellings. I spent hours trying to find "Advanced Resorts of America" when I wanted "Advance Resorts of America."
Ask questions of the Google and take note of any wise answers. Search for business names, phone numbers -- anything that might turn up more information. In the case of spam, Google is the warrior's best friend, as is Usenet (also known as newsgroups), which is archived at groups.google.com. A small, dedicated group of anti-spammers has already done much of the research required, though the warrior will want to retrace those steps to be sure the information obtained is correct. Do not say to a judge, "I found a web page that listed this as the defendant's address." That is called "hearsay" and the court frowns upon it (and won't accept it as evidence).
CALL THE PHONE COMPANY -- One can often get information from the phone company about a given number, especially if it's a business number. For in-state numbers, call the local phone company and ask if they are the "responsible party" for the number -- meaning they own it. For out-of-state numbers, call one's long distance carrier. For toll-free numbers, try either. If they are unwilling to help, try insisting or try asking for a manager.
Once the "responsible party" is located, ask them for the name of the number holder. If they need a reason, inform them that it is a business sending the warrior junk faxes or spam or calling the warrior with recorded calls. If they won't help, consider asking for the contact information for their subpoena office. (See Chapter 9, "Subpoenas.")
Special thanks to Joe Wagner from the suespammers mailing list for the information in the preceding section.
POST OFFICE BOXES -- The U.S. Postal Service will disclose the street address of a Post Office Box holder if that box is being used to conduct business with the public. They will also release the forwarding or street address of any Post Office Box if one can certify that it is needed for service of court papers.
This information is best requested using the form "Request for Change of Address or Boxholder Information Needed for Service of Legal Process," available from the U.S. Postal Service. The form is relatively self-explanatory and should be sent to "Postmaster" at the city and zip of the Post Office Box. A copy of this form can be found at http://smallclaim.info/usps.pdf (the original site took it down).
If one has some document showing the box is being used for commercial purposes, such as the address on a fax or web page or something, send a copy of that as well. My first request was denied for want of defendant's "business letterhead."
Special thanks to Marty Roth from the suespammers mailing list for providing a copy of this USPS form.
IF ALL ELSE FAILS -- If the warrior still has trouble, call the company and ask for their corporate name or owner. Be tactful if possible. Tell them one has some legal documents one needs to send over. Or consider telling them one is "suing the hell out of them" but needs a little help to do it correctly. The "Experiences" section may provide some useful ideas on how to gleen bits of knowledge via the phone. If one still can not locate the official company name, the small claim may proceed, but the odds of victory are greatly reduced.
CHAPTER 4: FORMS
The local district court houses the small claims court and the requisite forms to appear in that court. Some district courts require a ten-minute line-wait to receive a small claims form, while most have decided this is an unnecessary step. The long-term warrior should take a handful of forms at a time and fill them out at home when leisure permits. A fee of approximately $21, depending on the court, must be paid for each case filed. If one overcomes the opponent, this fee shall be recompensed.
The form is pretty self-explanatory: one's own information, defendant's information, damages sought, reason, sign, date. As a reason, I generally write, "One violation of RCW 80.36.400 -- prohibition against automatic dialing and announcing devices." Substitute the number of violations and the correct law for your cases.
To give an idea of what this form looks like, I scanned in the King County Small Claims form. This is a quadruplicate form, so don't try to print this one out and use it. That is bad warrior form.
CHAPTER 5: COURT CLERK-FU
Believe it or not, the hardest part of the lawsuit process may be persuading the court clerk to accept one's case. If the defendant's address is not in the court's jurisdiction, they will say, "this case can not be filed here." This answer is incorrect. The defendant, by calling the warrior in that court's jurisdiction, was conducting business in that jurisdiction and that jurisdiction has, well, jurisdiction.
Court clerks are trained to tell people this not-fully-correct jurisdictional mumbo jumbo, and since they're used to getting crap from antsy litigants all day, they do not accept anything that could be construed as sass; restraint is advised. These courts generally deal only with cases where the defendant was physically in their jurisdiction, and phrases like "conducting business in" are unfamiliar to them.
Washington anti-spammers have had extreme problems with this issue, and are actively fighting to educate court clerks and judges as to what the law really says. My first out-of-jurisdiction filing required two days of work, six hours on the phone, and a threat that I wouldn't leave until they accepted my filing. One small claims warrior on the Eastside was refused filing by a judge who said, "we don't have jurisdiction over the internet."
In truth, RCW 3.66.040(5) states:
"An action against a nonresident of this state may be brought in any district where service of process may be had, or in which the cause of action or some part thereof arose, or in which the plaintiff or one of them resides."
When one receives a recorded call, junk fax or illegal spam in Seattle, the "cause of action" arose in Seattle and one can file in a Seattle court.
The best argument I've found for court clerks is this: "I know this is an out-of-jurisdiction defendant and I would like to file the case anyway and let the judge decide the matter. I understand that if it's thrown out, I don't get my filing fee back." This must be spoken with confidence and not puffery. If the clerk persists, consider asking them to stop providing legal advice and to accept the filing, because they have no lawful authority to decline it.
If court clerks give little resistance to an out-of-jurisdiction filing, they are either educated in the nuances of jurisdiction or a small claims warrior has come before. It is safe to assume the latter and have a quick meditation, revelling in the forerunner's spirit.
CHAPTER 6: SERVE NOTICE
One must notify the defendant of the lawsuit, called "obtaining service" or "serving notice." This can be done in a number of ways. (For the complete law, see RCW 4.28.)
POSTAL SERVICE -- The easiest and most cost-effective service is obtained through the U.S. Postal Service. One should use certified mail with return receipt, which will cost around four dollars. In order to deliver this mail, the Postal Service requires a signature, which is proof that the defendant received their copy of the lawsuit papers.
Unless the "restricted delivery" box is checked, anyone can sign for the mail. In many cases, this is fine. In others it is not. In order to serve notice on a sole proprietorship, one must have the signature of the business owner. In the case of a corporation, one needs a signature from a company executive, the secretary of a company executive, or the "registered agent," which is the contact person listed with the secretary of state for that corporation.
In some cases, the judge may accept any signature with the caveat that the defendant can appeal if that signature is not from the correct person.
SHERIFF OR OTHER INDIVIDUAL -- Occasionally, one doesn't have the signature one would desire, or the defendant refuses to sign. In such a case, service can be obtained via the county sheriff. There is a fee of approximately $25 for this service.
One may be able to find a "process server" in their county, which is basically a company that serves notice to defendants as part of their business. Some process servers will go to extreme lengths to serve notice -- posing as UPS delivery men and whatnot. (These folks charge more than the sheriff.)
Alternatively, service can be obtained via any person of legal age who is not connected with the case as a witness or party.
CHAPTER 7: CONSIDER SETTLEMENT
The defendant will likely telephone about the case, oftentimes not understanding why the warrior feels that the "pain and severe emotional damage of a phone call" warrant a $500 payment. One must explain that they broke the law and this amount is statutory. Calm should be kept at all times, regardless of temper coming across the line.
The defendant, though often claiming innocence, may desire an out-of-court settlement. This is a good thing. Court is a stressful experience, even if one overcomes the opponent. If the company changes its ways, the warrior has succeeded. However, settlement should be as close to the damages sought as possible. The benefit to the company is that they won't have judgment entered against them on the public record. Settlement may be less, but the key is not to give them the upper hand in negotiation. If they aren't agreeable to one's settlement terms, one can simply best them in court. The company, even if remorseful, needs a spanking, i.e. a financial smack. They can factor a $100 settlement as a cost of doing business, so be firm.
The packet received from the court clerk should contain the settlement form, which, in Seattle, is the "satisfaction of judgment" form, a beautifully unintuitive and simple form.
CHAPTER 8: CONSIDER DROPPING SUIT
Some defendants may be completely oblivious to the fact that "fax blasting" is obnoxious and illegal. Some may have been lied to about a spammers "opt-in" list. Some of the ignorant may deserve pity. For these people, the warrior will often consider dropping the lawsuit in exchange for an affidavit (signed declaration) stating the name and contact info for the marketer they hired. In these cases, it may or may not be appropriate for the warrior to ask for a stipend to cover the costs of filing the case and serving notice.
If the suit is dropped, submit the proper form; in Seattle it's the "Dismissal of Claim" form (if I recall correctly).
CHAPTER 9: SUBPOENAS
I've never gotten a subpoena, which means this chapter is useless. (Snicker.) However, I know it can be done in small claims court. Joel Hodgel from the wanospam mailing list managed to do it after only six tries. If one has trouble getting information, a subpoena may work. Basically, a subpoena is a demand for information from the court. The warrior must persuade the court to grant a subpoena.
Many judges do not feel subpoenas can be issued in small claims court. Joel has proved them wrong. Here's Joel's advice:
"Ask for the 'subpoena duces tecum' form from the court clerk, fill it out, and you'll need a separate page that explains what is needed and why. Get yourself on the ex-parte schedule for that day (you'll have to turn in your paperwork by 11 a.m., at least for the Seattle division) and show up at 1:45 p.m. (for Seattle)."
CHAPTER 10: BRING DOWN THE ALMIGHTY FURY IN THE COURT
All documentation should be brought to the court -- the corporate records, the postal slip with their signature, the fax, spam printouts, everything.
I generally write a statement, rather than doing a lot of talking in the unfamiliar court environment. One can see a few examples of my affidavits in the Experiences section. I usually include the law or a big chunk of the law in my statement (and I have no idea if this helps my case). Before your signature, include a paragraph that states, "I declare under penalty of perjury of the laws of the State of Washington and the United States that the above statement is true and correct."
The judge will listen to oral statements or read written ones, look at all the documentation, ask questions, and decide the case. It's a lot like People's Court on TV, though most of the cases are duller.
If the defendant fails to show, and the warrior proves delivery of the forms, the judge will generally enter default judgment, meaning the warrior wins. This is not always the case, however. Besides not serving the correct person, there exist many other technicalities that a judge may dismiss the warrior's case on, many of which are incorrect.
NO STATUTORY DAMAGES IN SMALL CLAIMS -- Some judges have stated that they cannot grant statutory penalties in small claims court. However, no judge nor small claims warrior has been able to find a law or court rule to back this claim up. The Attorney General's Office pointed out the case of Strenge v. Clarke5, a 1977 Washington State Supreme Court case that states:
" Second, we have clearly stated that RCW 19.86.090, the damages section of the Consumer Protection Act, imposes a civil penalty. Johnston v. Beneficial Management Corp. of America, 85 Wn.2d 637, 640, 538 P.2d 510 (1975). The statutory penalty is limited to one thousand dollars. Thus, by virtue of RCW 3.66.020(3) justice courts have concurrent jurisdiction with superior courts over the civil penalty provided for in RCW 19.86.090 unless the legislature has provided there, or in some other statute, that the superior courts have sole and exclusive jurisdiction over such matters. There is no such limiting provision."
Citing this case may help. However, it is my understanding that "justice court" means district court, and though this case says one can file in district court, small claims is but one division of that court. I raised this argument once and the pro tem judge said "district court yes, but small claims no." I responded that all the other judges, including the judge the pro tem was filling in for, had granted me statutory damages and that nobody had been able to cite a law or court rule to back this claim up. That was good enough for the pro tem.
FEDERAL LAW CAN'T BE USED IN SMALL CLAIMS -- Judges in small claims court rarely, if ever, hear cases dealing with federal law. Some may feel they are not able to rule on federal law. The warrior's argument against this is International Science and Technology Institute, Inc. v. Inacom Communications, Inc.6, a 1997 Fourth Circuit Court of Appeals ruling that dealt with the federal anti--junk-fax law:
"... the legislative history of the TCPA supports our interpretation that Congress intended that private actions under 47 U.S.C. § 227(b)(3) be treated as small claims best resolved in state courts designed to handle them, so long as the states allow such actions."
For some more citable court cases that back this up, see my E-Financial Inc.com affidavit, Experience 5.
NO JURISDICTION OVER OUT-OF-STATE DEFENDANTS -- This is covered briefly in Chapter 5, Court Clerk-Fu. RCW 3.66.040(5) states:
"An action against a nonresident of this state may be brought in any district where service of process may be had, or in which the cause of action or some part thereof arose, or in which the plaintiff or one of them resides."
Furthermore, the Consumer Protection Act, under which all three of the Washington State laws fall, expressly allows for out-of-state service in RCW 19.86.160:
"Personal service of any process in an action under this chapter may be made upon any person outside the state if such person has engaged in conduct in violation of this chapter which has had the impact in this state which this chapter reprehends. Such persons shall be deemed to have thereby submitted themselves to the jurisdiction of the courts of this state within the meaning of RCW 4.28.180 and 4.28.185."
Additionally, RCW 4.12.020(1) states:
"Actions for the following causes shall be tried in the county where the cause, or some part thereof, arose: (1) For the recovery of a penalty or forfeiture imposed by statute."
COMPLETE JUDICIAL IDIOCY -- Bennett Haselton once received his filing back from a judge with this note written on it:
"There's no case here -- I don't know if you read on the Internet that this was a cool thing to do."
In such a case, a warrior is in trouble for the judge has absolutely no knowledge of Washington State law. One can attempt to point out the RCW and hope it works, but on occasion one may get a judge who simply wants to shoot down one's case.
I had a case thrown out after a judge read halfway through a jurisdictional blurb in the Consumer Protection Act. The second half of the same paragraph she cited completely rebutted her dismissal. (See Experience #2).
CHAPTER 11: COLLECT STIPEND
Assuming courtroom victory, one may humbly rejoice -- briefly. The path lies ahead still; a judgment is but a piece of paper. If defendant appeared in court the warrior will likely receive stipend that day. Once the judgment is paid, the warrior must file a "Satisfaction of Judgment" form.
If defendant did not appear in court, one must persuade them to send one's stipend, or utilize collection laws to order a third-party to take the money from them.
After losing, defendant generally has a month to pay up. In Seattle, the court mails the judgment to defendant, though this may be not be the case in other courts. After thirty days I usually mail defendant a copy of the judgment and a letter asking them to pay.
GET CREATIVE -- I have had mild success asking defendant to pay a lesser amount -- 75% of the judgment or so. I have also had mild success sending invoices to defendant -- I would suggest monthly invoices.
GET A COLLECTIONS AGENCY -- A collections agency will generally take a percentage of the amount collected -- around 40-50% -- after they pay their own costs. I have yet to have success with this process, as my cases are usually pretty low dollar.
GET LEGAL -- Using collections law one can place liens on property, bank accounts, wages, etc. Title 6 RCW, Enforcement of Judgments, is the place to start researching this body of law.
In my one collections process journey, I garnished a bank account. In that case, defendant had already paid half the judgment, but wouldn't pay the remainder. Since I had received a check from them, I knew their bank name and account number, which made the process easier. My garnishment filings can be found on smallclaim.info under the "Seattle Auto Glass" case.
Warning: Below is my one experience with collections. It is specifically about garnishing a bank account. This process is done in Superior Court, where false moves can result in monetary penalties against the warrior. I have fully read the laws and court rules and I do not have a complete understanding of this process. I am but an imperfect distiller; the warrior does well to go to the source -- the RCWs and court rules.
First, file a "notice of non-payment" with the court clerk. One's case will then be entered into the docket of the superior court and the case will be assigned a longer case number.
Garnishment falls under Chapter 6.27 RCW. The court rules are CR 64. Forms can be obtained at www.courts.wa.gov/forms/ (select garnishment from the drop down box).
I filed an Application for Writ of Garnishment, which states that 1) one has a judgment from the same court one is seeking the writ, 2) the amount sought, 3) one believes garnishee (Bank of America in my case) is indebted to defendent in amounts exceeding those exempted from garnishment by any applicable law, and 4) whether garnishee is the employer of defendant. The filing cost for the Application was $20.
Along with the Application, I filed the actual Writ of Garnishment, which is what the judge (the clerk really) signs and stamps. (The clerk will give you two certified copies, more if you pay for them.) This form shows the amount due, broken into categories (judgment, filing fees, service fees, etc.) and includes a page to put as much information the warrior knows about defendant's accounts.
One must serve defendant with the Writ on or before the date of service on the garnishee (the bank). Along with the Writ, the defendant receives a copy of the writ application. If defendant is an individual, include a "Notice of Garnishment and Your Rights" and an exemption claim form.
One must serve garnishee as well. Included with the Writ one must send four copies of the "Answer to Writ of Garnishment" form; three stamped envelopes addressed to 1) the court clerk, 2) plaintiff, and 3) defendant; and a check or money order for $20. This $20 and additional mailing fees should be planned for in the Writ of Garnishment.
After serving the defendant and the garnishee, one must file a "Certification of Mailing" form if served via certified mail, or a "Return of Service" if served by a person. If done via certified mail, the green postal cards must be filed with the court as well.
A short time later, I received an "Answer to Writ of Garnishment" form back -- one of the three copies I sent the bank. It stated the amount the bank was indebted to defendant (in my case it was the full amount of my garnishment request) and was stamped "SUBJECT TO COLLECTABILITY." I was rather hoping to get a check, and it took me a while to figure out the next form to file.
Next, I filed a "Judgment on Answer and Order to Pay" form, which in essence says, "really, I want the money." I mailed that to the bank, they lost it, I went back and forth with them, finally paying for a new certified copy and mailing it to them again, then they sent a check to the Superior Court.
Trying to locate my check, I went to the disbursements counter at the King County Courthouse. The clerk said that the check had been mailed to me two weeks prior. I suddenly realized that I had neglected to update my address with the court. The clerk provided some sage-like advice: always include your address -- you can just write it down on the end of your filing.
After locating my check (it was sitting in a pile of old mail at my old residence), I rejoiced. Then I filed a "Satisfaction of Judgment Against Defendant" and a "Satisfaction of Judgment Against Garnishee." These forms must be notarized before filing.
Note 1. RCW 80.36.400 Automatic dialing and announcing device -- Commercial solicitation by.
(1) As used in this section:
(a) An automatic dialing and announcing device is a device which automatically dials telephone numbers and plays a recorded message once a connection is made.
(b) Commercial solicitation means the unsolicited initiation of a telephone conversation for the purpose of encouraging a person to purchase property, goods, or services.
(2) No person may use an automatic dialing and announcing device for purposes of commercial solicitation. This section applies to all commercial solicitation intended to be received by telephone customers within the state.
(3) A violation of this section is a violation of chapter 19.86 RCW. It shall be presumed that damages to the recipient of commercial solicitations made using an automatic dialing and announcing device are five hundred dollars.
(4) Nothing in this section shall be construed to prevent the Washington utilities and transportation commission from adopting additional rules regulating automatic dialing and announcing devices. [1986 c 281 § 2.]
Note 2. 47 USC § 227(b)(1) Restrictions on use of automated telephone equipment.
It shall be unlawful for any person within the United States -
(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice -
(i) to any emergency telephone line (including any ''911'' line and any emergency line of a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency);
(ii) to the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment; or
(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call;
(B) to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B);
(C) to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine; or
(D) to use an automatic telephone dialing system in such a way that two or more telephone lines of a multi-line business are engaged simultaneously.
For the complete text of 47 USC § 227: http://uscode.house.gov/usc.htm
Note 3. RCW 80.36.540 Telefacsimile messages -- Unsolicited transmission -- Penalties.
(1) As used in this section, "telefacsimile message" means the transmittal of electronic signals over telephone lines for conversion into written text.
(2) No person, corporation, partnership, or association shall initiate the unsolicited transmission of telefacsimile messages promoting goods or services for purchase by the recipient.
(a) Except as provided in (b) of this subsection, this section shall not apply to telefacsimile messages sent to a recipient with whom the initiator has had a prior contractual or business relationship.
(b) A person shall not initiate an unsolicited telefacsimile message under the provisions of (a) of this subsection if the person knew or reasonably should have known that the recipient is a governmental entity.
(4) Notwithstanding subsection (3) of this section, it is unlawful to initiate any telefacsimile message to a recipient who has previously sent a written or telefacsimile message to the initiator clearly indicating that the recipient does not want to receive telefacsimile messages from the initiator.
(5) The unsolicited transmission of telefacsimile messages promoting goods or services for purchase by the recipient is a matter affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. The transmission of unsolicited telefacsimile messages is not reasonable in relation to the development and preservation of business. A violation of this section is an unfair or deceptive act in trade or commerce for the purpose of applying the consumer protection act, chapter 19.86 RCW. Damages to the recipient of telefacsimile messages in violation of this section are five hundred dollars or actual damages, whichever is greater.
(6) Nothing in this section shall be construed to prevent the Washington utilities and transportation commission from adopting additional rules regulating transmissions of telefacsimile messages. [1990 c 221 § 1.]
Note 4. RCW 19.190 Commercial electronic mail.
RCW 19.190.010 Definitions.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
(1) "Assist the transmission" means actions taken by a person to provide substantial assistance or support which enables any person to formulate, compose, send, originate, initiate, or transmit a commercial electronic mail message when the person providing the assistance knows or consciously avoids knowing that the initiator of the commercial electronic mail message is engaged, or intends to engage, in any practice that violates the consumer protection act.
(2) "Commercial electronic mail message" means an electronic mail message sent for the purpose of promoting real property, goods, or services for sale or lease. It does not mean an electronic mail message to which an interactive computer service provider has attached an advertisement in exchange for free use of an electronic mail account, when the sender has agreed to such an arrangement.
(3) "Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.
(4) "Initiate the transmission" refers to the action by the original sender of an electronic mail message, not to the action by any intervening interactive computer service that may handle or retransmit the message, unless such intervening interactive computer service assists in the transmission of an electronic mail message when it knows, or consciously avoids knowing, that the person initiating the transmission is engaged, or intends to engage, in any act or practice that violates the consumer protection act.
(5) "Interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet and such systems operated or services offered by libraries or educational institutions.
(6) "Internet domain name" refers to a globally unique, hierarchical reference to an internet host or service, assigned through centralized internet naming authorities, comprising a series of character strings separated by periods, with the right-most string specifying the top of the hierarchy.
(7) "Person" means a person, corporation, partnership, or association.
RCW 19.190.020 Unpermitted or misleading electronic mail -- Prohibition.
(1) No person may initiate the transmission, conspire with another to initiate the transmission, or assist the transmission, of a commercial electronic mail message from a computer located in Washington or to an electronic mail address that the sender knows, or has reason to know, is held by a Washington resident that:
(a) Uses a third party's internet domain name without permission of the third party, or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or
(b) Contains false or misleading information in the subject line.
(2) For purposes of this section, a person knows that the intended recipient of a commercial electronic mail message is a Washington resident if that information is available, upon request, from the registrant of the internet domain name contained in the recipient's electronic mail address.
RCW 19.190.030 Unpermitted or misleading electronic mail -- Violation of consumer protection act.
(1) It is a violation of the consumer protection act, chapter 19.86 RCW, to conspire with another person to initiate the transmission or to initiate the transmission of a commercial electronic mail message that:
(a) Uses a third party's internet domain name without permission of the third party, or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or
(b) Contains false or misleading information in the subject line.
(2) It is a violation of the consumer protection act, chapter 19.86 RCW, to assist in the transmission of a commercial electronic mail message, when the person providing the assistance knows, or consciously avoids knowing, that the initiator of the commercial electronic mail message is engaged, or intends to engage, in any act or practice that violates the consumer protection act.
(3) The legislature finds that the practices covered by this chapter are matters vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. A violation of this chapter is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the consumer protection act, chapter 19.86 RCW.
RCW 19.190.040 Violations -- Damages.
(1) Damages to the recipient of a commercial electronic mail message sent in violation of this chapter are five hundred dollars, or actual damages, whichever is greater.
(2) Damages to an interactive computer service resulting from a violation of this chapter are one thousand dollars, or actual damages, whichever is greater.
RCW 19.190.050 Blocking of commercial electronic mail by interactive computer service -- Immunity from liability.
(1) An interactive computer service may, upon its own initiative, block the receipt or transmission through its service of any commercial electronic mail that it reasonably believes is, or will be, sent in violation of this chapter.
(2) No interactive computer service may be held liable for any action voluntarily taken in good faith to block the receipt or transmission through its service of any commercial electronic mail which it reasonably believes is, or will be, sent in violation of this chapter.
Note 5. For the complete text of Strenge v. Clarke, point your web browser to: http://www.mrsc.org/mc/courts/supreme/089wn2d/089wn2d0023.htm
Note 6. For the complete text of International Science and Technology Institute, Inc. v. Inacom Communications, Inc., ride the supahighway to: http://www.law.emory.edu/4circuit/feb97/961142.p.html
Experience 1. Wild West Tours.
My small claims journey started with a recorded telemarketing call from Wild West Tours. They were doing "lead generation" for a timeshare company -- those people who give you free crap to sit through a few hours of supa-intense marketing.
After receiving the call, I filed a complaint online with the Attorney General's office. A few weeks later, I received a response from Wild West Tours saying they had removed me from their database; they also included a copy of their "Do Not Call" policy.
I responded saying that they had ignored the crux of my complaint -- that their calls are illegal. A few weeks later I got a letter from the CFO, who I assumed, judging by his letter, enjoyed playing lawyer just like me.
"You state that our use of and ADADS is a violation of state law. You did not indicate what our use is or has been and thus we are unable to respond to the 'use' that is the issue of your letter."
Since we were both playing the lawyer game, I made the next move and seriously one-upped his bullshitting by filing suit against his company.
A few weeks later, I got a call from their lawyer. He essentially said he didn't know what the hell his client was doing and told me to come down to his office and he would cut me a $500 settlement check.
Experience 2. Seattle Auto Glass.
I received three -- yes three -- recorded calls from Seattle Auto glass over the course of two months. I filed suit and when my court date came, I was the second case up. The case before mine was completely frivolous -- some ex-Washington Mutual employee suing because his last paycheck was mailed one day late. This, I believe, prejudiced the judge against later plaintiffs, myself included.
Seattle Auto Glass didn't show up, so I was pretty much guaranteed victory -- or so I thought. Instead, the judge chided me for filing my case in the wrong court.
RCW 80.36.400 states that a violation of that section is a violation of RCW 19.86, the Consumer Protection Act. RCW 19.86.090 says "any person who is injured in his or her business or property ... may bring a civil action in the superior court..." If I wanted to file my claim, the judge said, I would have to go to Superior Court.
At the time, sitting in small claims court, I didn't have the RCW in front of me and didn't think of questioning the judge's contention. It seemed quite likely that I had screwed up; I often do. Later in the day, after reading completely the law she cited, I noticed that it also states: "PROVIDED FURTHER, That such person may bring a civil action in the district court to recover his or her actual damages, except for damages which exceed the amount specified in RCW 3.66.020..."
Basically, I got a cranky judge who read halfway through a law and stopped when she had enough information to throw out my case. She seemed determined to chastise my case, noting numerous times that I would have to prove I was injured in my "business or person."
After that case, I began to see judges as normal people who don't know everything and screw up just like me. I was quite perturbed that I had just been screwed out of $1,500 because a judge didn't like me.
I ended up refiling the case in small claims court under federal law. I had the same judge, but on my court date, all cases were switched to another judge, which was fine by me. The new judge noted that I was correct about the Consumer Protection Act allowing cases to be filed in small claims court. She didn't, however, think a small claims court could rule on federal law, but I busted out International Science v. Inacom. She said she would have to do more research and after a week I came back and she ruled in my favor.
Experience 3. Jason Olson dba Variant Solutions.
At work we receive a lot of junk faxes. One such fax was from "Variant Solutions" and offered cell phone plans. After filing suit, I spoke with the business owner. He had hired an outside company to do the "fax blasting" and was unaware that it was illegal.
Even though I felt I could win the case, decided to settle for an affidavit from Mr. Olson stating who the company he hired was. Mr. Olson was quite agreeable to this; after all, he had been lied to about the legality of the service. If my goal is to stop these obnoxious marketing tactics, I reasoned, I should go after the "big fish."
Experience 4. Gateway Express Mortgage.
What follows is the written statement I've prepared in my case against Gateway Express Mortgage. Like Mr. Olson in Experience 3, this company hired an outside "fax blasting" company. Unlike Mr. Olson, this company wouldn't give me any information about this third party. Since they obviously intended on continuing their use of junk faxes, I decided a lawsuit was in order.
On November 13, 2001, I received an unsolicited fax containing what appeared to be a newspaper clipping with the words "Thought you might find this interesting" handwritten in one corner. The supposed newspaper clipping was titled "Homeowner Beware - 'Wow! Was I being ripped off!'" and provided a number near the end to call if I was interested in better mortgage rates.
I called the number provided and was greeted with a recorded message. "Thanks for calling the Freedom From Debt hotline," it said. If I wanted to "escape the debt ratrace," all I had to do was order their free report, which would be "sent confidentially through the mail." I could leave my number or I could press zero to speak with an operator.
I pressed zero and an operator answered, "Gateway Express Mortgage."
"Hi," I said. "Are you in Seattle?"
"West Seattle," she responded.
"Are you the one who sent this fax to me?" I asked.
I read the title of the purported newspaper clipping. "Okay, great," she said. "Can you hold just a minute, please?"
She transferred me to a man named Dan Doran. "Are you the people who sent this fax to me?" I asked."
Dan said they were the people and I explained to him that unsolicited faxes are illegal. "Are you an attorney?" he asked somewhat jovially.
"No, just a concerned citizen," I said.
Dan told me that they hire an outside company to do their faxing. I asked him for the name and number of that company, and he responded, "I don't actually handle that. An associate of mine does." I asked Dan to have his associate give me a call and we parted ways.
On November 20, after not hearing from Dan or his associate, I called Gateway Express Mortgage and explained to the operator that I had spoken with Dan previously and was looking for the person in charge of their faxing.
"That would be Dan," the woman said. Unfortunately, Dan wasn't in, so she took my name and number and a brief message.
On November 29, after still not hearing back from Dan, I called Gateway Express Mortgage again. Dan wasn't in, so I left another message. This time, he called back and told me that they had already removed me from their list. I explained that I was looking for the company doing the actual faxing so I could get in touch with them.
"Well," he said. "I sent them your information. If they want to contact you, they will. I don't know what else to say, buddy."
After hearing him call me "buddy," I could tell that we were at an impasse. "Okay," I said, and we ended our conversation cordially.
Experience 5. E-Financial Inc.com (written testimony).
My name is Ben Livingston. I am vice president of Innovative Access, a small internet service provider located in the Ballard neighborhood of Seattle. Innovative Access is seeking $500 in damages from E-Financial Inc.com, a Nevada corporation, for one violation of Title 47, Section 227(b) of the United States Code.
This law makes it illegal "to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." The term "unsolicited advertisement" is defined as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission." Damages are set at actual monetary damages, or $500, whichever is greater. The court may increase the damages up to three times this amount if it finds the defendant "willfully or knowingly" violated this law.
We receive a junk fax approximately every two days. Under federal (and state) law, these unsolicited faxes are illegal, but "fax blasters" simply ignore the law because few people know about and exercise their private right of action. We intend to take a proactive approach and file suit against these obnoxious and illegal marketing tactics and hopefully make a dent in the number of junk faxes we receive and, who knows, maybe make a small dent in the number of junk faxes others receive.
State courts are expressly given jurisdiction under 47 U.S.C. § 227(b)(3). The following federal court cases have found that state courts have sole jurisdiction under this law:
- International Science and Technology Institute, Inc. v. Inacom Communications, Inc., 106 F.3d 1146 (4th Cir. 1997)
- Chair King, Inc. v. Houston Cellular Corporation, 1997 WL 768609 (5th Cir. 12/15/97);
- Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Services, LTD, 975 F.Supp. 329 (S.D.N.Y. 1997)
I declare under penalty of perjury of the laws of the State of Washington and the United States that the above statement is true and correct.
Dated: January 7, 2001