If I’m taken to small claims in one state and I live in another, how can I defend myself?

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If I’m taken to small claims in one state and I live in another, how can I defend myself?

I bought furniture in NM 6 months ago. I canceled the deposit from my bank before any attempt of delivery. Receipt I signed says 24 hours to cancel or pay 50% restocking fee, and delivery times approximate only. I was told 6-8 eeks but it’s been over 6 months. Owner says I’m in breach of contract for canceling and I have to pay restocking $4000. He says he is taking me to collections at my expense and 18% interest. How can I defend myself out of state if he files in NM? Should I hire an attorney to write a letter for me to end future contact with the owner?

Asked on August 3, 2011 California

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If you are sued in a state other than where you live, you have to answer the complaint or risk a default judgment against you after the summons and complaint are served upon you, or make a motion for transfer of venue if the lawsuit is improperly brought in New Mexico where you reside in California.

Your question's facts state you bought furniture in New Mexico. If so, then most likely a lawsuit against you filed in New Mexico would have proper venue. If you are served with a summons and complaint for a lawsuit filed in New Mexico, in order to protect your interests, you most likely have to show up at trial in New Mexico. If you do not, you could have a default judgment entered against you.

You seem to have a viable defense for cancelling the contract due to the vendor's inability to deliver in the agreed amount of time, 6 to 8 weeks versus 6 months. The timing of the delivery of the furniture and the failure to do so seems like a material breach of the purchase agreement by the vendor.

You should retain a lawyer to write a letter about the dispute to protect your interests and hopefully resolve it short of a lawsuit being filed.


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