Small Claims Issues

Small claims court provides an informal way to resolve minor lawsuits and other legal problems. You may use small claims court in any of the following situations:

  • Someone injures you, damages your property or violates a contract to which you're a party, and the amount you seek is $5,000 or less.
  • You want to repossess property valued at $5,000 or less. This is called a replevin action.
  • You already have a legal judgment for $5,000 or less against someone and you want to enforce the judgment by seizing funds or property which the other person possesses (such as wages). This is called a garnishment (for money) or an attachment (for property).
  • You're a landlord seeking to evict a tenant. Any amount of rent may be owed. The $5,000 limit doesn't apply.

Before you start any legal action, try to settle your dispute. If you can't settle and you feel small claims court is appropriate, go to your county courthouse and obtain the necessary forms from the clerk of court.

Generally you don't need a lawyer to file a small claims action, but there may be situations when it might be appropriate. Read more: Do you need a lawyer for a small claims case?

Make sure you're suing in the right county. Your county is the right place if:

  • The person or business you're suing (the defendant) resides or does a substantial amount of business in your county.
  • Your claim arose in your county.
  • The property involved in your claim is located in your county.

To start your action, fill out the forms, called the summons and complaint. You're the plaintiff. Make sure you list the defendant's name and address correctly. Check one of the three boxes on the form to show the type of lawsuit: money, eviction or return of property. (Interest on money lawsuits is normally 5 percent from the date on which the claim arose to the date the court enters judgment, and 12 percent thereafter until paid.) In the "Statement of Dates and Facts" section, tell what happened simply and concisely - legalese isn't necessary. It's a good idea to attach any billing statements or invoices if you're suing for money.

Ask the clerk if you need help completing the forms, but keep in mind that he or she can't give legal advice.

Various fees must be paid, and many are subject to change.

There's often a charge for having the summons and complaint served. It must be delivered to the defendant by an adult other than yourself. If the defendant's address is in the county where you file suit, the court may serve it by mail for $2 per defendant (or more if your county requires certified mail). If the defendant is outside the county, service must be personal. The subpoena must be served just like the summons and complaint, with the same fees. In addition, you have to pay each witness a fee of $16 per day and 20 cents per mile for travel.

What's the procedure once the case is started?

A "return date" will be set as the first step. Both you and the defendant must appear in court at the scheduled day and time. (Some counties require only a written response or a telephone call from the defendant instead of a personal appearance.) Bring along proof that the defendant was served and that he or she owes you the money or property you claim.

If the defendant doesn't show up or respond, you may get a default judgment. In other words, you win. The defendant who does appear will have to admit or deny the accusations in the summons and complaint. The defendant may admit all or part of your claim and ask for time to pay. Many cases are settled at this stage.

A hearing is the next stage in a contested matter. In many counties, a court commissioner will conduct a hearing at a later date. Both you and the defendant may present evidence and call witnesses. The hearing is informal and the court commissioner will help identify the issues. Rules of procedure and evidence aren't strictly enforced. The court commissioner's decision may be given orally or in writing. It becomes final within 11 days if given orally, and within 16 days after the decision is mailed if in writing. A written decision must be mailed within 30 days of the hearing.

Along with the court commissioner's decision, you'll receive instructions on how and when you may challenge the ruling. Either party has the right to challenge it and demand a trial before a judge or jury. The demand for a trial must be made in writing within 10 days of the court commissioner's oral decision, or within 15 days after the mailing of a written decision.

The judge may hold a pretrial conference in an effort to settle the case. If the case goes to trial, the court commissioner's ruling won't be considered. Note: In some counties a judge, not a court commissioner, handles small claims hearings. Be sure to ask the clerk of court for information on how your county handles small claims.

Do you need a lawyer for a small claims case?

It all depends on the complexity of your case and whether it's contested. Generally you don't need a lawyer to file a small claims action. But if the defendant hires a lawyer, you may want to do the same to protect your interests, especially if your case is tried before a judge or jury. If you win your case, the court may order the defendant to pay attorney fees according to a schedule and you will be responsible for the remainder of the balance to your attorney. As well, if you obtain a judgment by default (the defendant does not show up), the court will award you one-half of the attorney fees in the current schedule.

If you win your case, you are entitled to the money or property the judge decides is due you, plus out of pocket expenses such as attorney fees and court costs.

If you win a money judgment, the judge will order the defendant to fill out a financial disclosure form and mail or deliver it to you or the clerk of court. The defendant must list his or her residence, employers, and their addresses, financial institutions where he or she has funds on deposit, real estate owned, automobiles, cash on hand, and other assets or sources of income. The completed form must be sent to you or the clerk, or the judgment paid, within 15 days.

If the defendant doesn't pay, you have several options. You may docket the judgment at the courthouse by paying a $5 fee. The docketed judgment then acts as a lien on the defendant's real estate. You may also start a garnishment action to obtain a portion of the defendant's earnings or bank deposits. If the defendant fails to file the required financial disclosure form, you can ask the court to hold the defendant in contempt.

If you lose your case, you may appeal it. Appeals are quite complicated matters and it is best to seek the immediate assistance of an attorney.

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For more information about Attorney Stephen P. Johnson and how he can help you, please call (920) 743-2129 or visit his profile.

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