How to get your money back from an immigration consultant in small claims court

This page is about getting your money back in small claims court. It is general information, not legal advice. Your immigration case comes first. If someone filed papers for you, get a second opinion from a lawyer or a DOJ accredited representative before or while you do this. See What to do if a notario or immigration consultant cheated you.

Can I sue a notario in small claims court?

Yes. If you paid someone for immigration help and they took your money, did the work wrong, or never did it, you can ask a small claims judge to order them to pay you back.

Small claims court is made for people without lawyers:

• You can ask for up to $12,500 if you are a person suing. A business can ask for up to $6,250.
• No lawyers in the courtroom. You can get advice from a lawyer before court, but you speak for yourself. So does the consultant.
• Low fees, and a fee waiver if you cannot afford them.
• The Plaintiff's Claim form (SC-100) asks for your name, address and phone. It does not ask for a Social Security number, citizenship or immigration status.

We know it takes courage to face someone who cheated you. The steps below make it doable, one at a time.

How long do I have?

California's immigration consultant law gives you 4 years to file, counted from the day you found out what the consultant did wrong (Business and Professions Code 22448).

The courts also list general deadlines. A broken written agreement: 4 years. A broken spoken agreement: 2 years. If you file late, the consultant can ask the judge to rule against you for that reason alone. If you are close to any deadline, file now and keep gathering papers.

Step 1: Ask for your money in writing

The court wants you to ask the other side to pay before you file. The SC-100 form asks whether you did. You can ask in person, by letter or by email. A letter or email is best, because it leaves proof.

Say what you paid, when and how; what they promised; what they did not do or did wrong; how much you want back and by what date; and that you will file in small claims court if they do not pay.

Keep a copy. If they pay, you are done. If not, go to Step 2. The court's site has a free online tool that writes the letter for you. If asking would put you in danger, or there is a restraining order, you do not have to ask first.

Step 2: Get the right name and address

This step decides whether you can collect later. The court says that if you do not use the proper legal name of the person or business, you might not be able to collect your money even if you win.

• Write down every name on your contract, receipts, card, sign and ads.
• Search the Secretary of State Immigration Consultant Search by last name or business name. It shows whether the consultant has a bond on file.
• If it is a company, you may need its agent for service of process, the person who accepts court papers for it. The court explains how to find one on its business address page.
• Not sure if you should sue the owner, the business, or both? A small claims advisor can help you decide. See Who can help?

Step 3: Pick the right court

Usually you file in the county where the consultant lives or does business. For a broken agreement, you can also file where you made or signed the agreement, or where it was supposed to be carried out. If you paid for work, you may also be able to file where you live or where you paid. Filing in the wrong county can get your case dismissed.

San Mateo County: cases are filed with the Small Claims Clerk at the Hall of Justice, 400 County Center, 1st Floor, Room A, Redwood City, CA 94063. The office works by appointment, Monday to Friday, 8:30 a.m. to 1 p.m. Phone: (650) 261-5100, option 6. Hearings are held in Redwood City or at the Northern Branch in South San Francisco.

Santa Clara County: small claims cases are heard at the Downtown Superior Court, 191 North First Street, San Jose, CA 95113. The building is open Monday to Friday, 8 a.m. to 5 p.m. The small claims phone line is (408) 882-2352, Monday to Thursday 8:30 a.m. to 3 p.m. and Friday 8:30 a.m. to noon, and the email is sssclaimsinfo@scscourt.org (courthouse page; Small Claims Division). A drop box for civil filings is in the lobby.

Another county? The rules on this page are the same across California. Find your county's court through the California Courts self help site.

Step 4: Fill out and file the claim

Use Form SC-100, Plaintiff's Claim and Order to Go to Small Claims Court. It asks who you are suing, how much they owe and how you got that number, what happened and when, whether you asked them to pay, why you chose this courthouse, and how many small claims you filed in the last 12 months.

Make one copy for you and one for each person or business you sue. Then file:

• In person: give the original and copies to the clerk.
• By mail: send the original, 2 copies, the fee and a self addressed stamped envelope.
• Online: some courts allow e filing. Check your court's website.

The clerk gives you a case number and a court date.

Can't pay? Ask the clerk for a fee waiver. You may qualify if you get public benefits, if your income is below a set amount, or if paying would leave you without enough for basic needs.

Step 5: Have the papers served

You cannot serve the papers yourself. Someone 18 or older who is not part of the case must do it: a friend, a family member, a process server you pay, or in some counties the sheriff. Some courts will mail the papers by certified mail for $15.

• If they are in the same county where you filed, they must get the papers at least 15 days before the court date.
• If they are in a different county, at least 20 days before.
• The server fills out Proof of Service, Form SC-104. File it with the court at least 5 days before your court date.

Step 6: Get ready for your court date

The judge hears both sides. Clear papers make your story easy to follow. Bring:

• Your original papers, plus one copy for the judge and one for the consultant
• Contract, receipts, and bank or app records of what you paid
• Copies of what they filed for you, and letters from USCIS or the court
• Your demand letter, texts, emails, ads and photos of their sign
• A one page timeline: dates, what was promised, what happened
• Witnesses, such as a family member who was there when you paid

Need an interpreter? File a Request for Interpreter, Form INT-300, as soon as you can. Need a disability accommodation? Use Form MC-410 at least 5 days before your court date.

Plan for a long day: the court says 4 hours or more.

What should I ask the judge for?

At minimum, ask for what you paid and your court costs, like the filing fee and the cost of service.

California's consultant law goes further. If a court finds the consultant broke the law, it awards your actual losses plus three times those losses or $1,000 per violation, whichever is more (Business and Professions Code 22446.5). The law does not say how this works in small claims. Before you add these extra damages to your claim, ask your county's free small claims advisor (listed below). Whatever you ask for, the total cannot be more than $12,500 for a person (Code of Civil Procedure 116.221). If your loss is bigger, you can choose to give up the extra to stay in small claims, and that choice takes effect when the judge rules (CCP 116.220(d)). If what you lost is more than $12,500, talk to a lawyer before you file.

I won. How do I collect?

The judge may decide that day or mail the decision. If you win:

• Wait 30 days. The consultant has that time to pay, appeal or ask to cancel the decision.
• If they do not pay, they must send you Form SC-133, which lists what they own, where they work and where they bank. If they do not, you can ask the court for a debtor's exam, where they must answer questions under oath.
• The court does not collect for you. You use court forms to take money from a bank account or paycheck, or to put a lien on property. The court's collection guide walks you through it.

The consultant's bond. Every consultant must file a $100,000 bond with the Secretary of State (B&P 22443.1). A person awarded damages for harm caused by a consultant can recover them from that bond (B&P 22447). The $100,000 is the total for all victims. If the bond drops below the required amount, the consultant must stop doing business.

The law does not spell out the steps to claim on the bond. Find the bonding company on the Secretary of State Immigration Consultant Search, then ask your small claims advisor how to make the claim. One limit to know: if you name the bonding company itself as a defendant in small claims, the most you can ask from it is $8,125 if it charges for bonds, or $3,125 if it does not (Code of Civil Procedure 116.220(c)).

What if the consultant appeals or does not show up?

If they appeal, there is a new trial with a different judge, and both sides tell their story again. This time either side may bring a lawyer. Go, and bring your papers again. You can ask to be paid back for some lawyer fees, lost pay and travel caused by the appeal. The new decision is final. You cannot appeal if you lose.

If they do not show up, go anyway, with all your papers, ready to tell your side.

If you cannot go, call the clerk right away about changing the date.

Mistakes to avoid

• Suing a nickname or sign name instead of the legal name
• Serving the papers yourself, or too late
• Bringing only one copy of your papers
• Paying a second "fixer" to get your money back for you
• Letting a small claims case replace legal help for your immigration case. Do both.
• Signing a paper that says you will not report the consultant, in exchange for a partial refund, without asking a lawyer first

Questions people ask

Do I need papers to sue in small claims? The claim form does not ask about immigration status or a Social Security number. If you are worried, talk with a free legal group before you file.

Can I sue and also report them? Yes. They are separate. A criminal case can also order the consultant to pay victims back. See How do I report a notario?

They say I signed a contract that says "no refunds." Does that end it? Not necessarily. A consultant's contract must follow California law, including the right to cancel within 72 hours and the rules in What an immigration consultant in California must do by law. Bring the contract and let the judge decide.

Who can help?

These are free public services and nonprofit legal programs. Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

• San Mateo County Small Claims Advisor: a free service for small claims cases in the county. Appointments are on Wednesday afternoons and open on Tuesdays. Sign up through the court's small claims self help page. The court also offers free small claims mediation.
• Santa Clara County Small Claims Advisor: live phone hours Tuesdays, 2 to 4 p.m., at (408) 882-2929, or send a question through the advisor page.
• Community Legal Services in East Palo Alto (CLSEPA): immigration help for people with low income. 650-326-6440. clsepa.org
• More free immigration help: Free or low cost immigration legal help in the Bay Area

You paid for help and did not get it. Asking for your money back is fair. Take the first step today.

Is there a checklist I can print?