SMALL CLAIMS FILING

WHAT IS SMALL CLAIMS COURT?

Small claims court is a special court where disputes are resolved quickly and inexpensively. The rules are simple and informal. The person who sues is the plaintiff. The person who is sued is the defendant. In small claims court, you may ask a lawyer for advice before you go to court, but you cannot have a lawyer in court. Your claim cannot be for more than $5,000 if you are a business or public entity or for more than $10,000 if you are a natural person (including a sole proprietor). If you have a claim for more than this amount, you may sue in the civil division of the trial court or you may sue in the small claims court and give up your right to the amount over the limit. You cannot, however, file more than two cases in small claims court for more than $2,500 each during a calendar year.

WERE CAN YOU FILE YOUR CLAIM?

You must sue in the right court and location. This rule is called venue. Check the court’s local rules if there is more than one court location in the county handling small claims cases. If you file your claim in the wrong court, the court will dismiss the claim unless all defendants personally appear at the hearing and agree that the claim may be heard. The right location may be any of these:

1. Where the defendant lives or where the business involved is located;
2. Where the damage or accident happened;
3. Where the contract was signed or carried out;
4. If the defendant is a corporation, where the contract was broken; or

For a retail installment account, sales contract or a motor vehicle finance sale:

1. Where the buyer lives;
2. Where the buyer lived when the contract was entered into;
3. Where the buyer signed the contract; or
4. Where the goods or vehicle are permanently kept.

HAVE YOU ASKED FOR THE MONEY OR PROPERTY ?

Before you can sue in small claims court, you must first contact the defendant (or defendants) if it’s practical to do so. You must then ask for the money, property, or other relief that you intend to ask the judge to award you in court. In legal terms, you must make a “demand” on the other person, if possible. Your request may be made orally or in writing, but it’s a good idea to do it both ways. Always keep copies of any letters and other written communications. It’s wise to send written communications by certified mail to the defendant or business , and to ask the post office for a return receipt that you can keep as evidence to present to the court with your claim.

HOW LONG DO I HAVE TO FILE A CLAIM?

Most claims must be filed within a set time limit, called: Statute of limitations. The purpose of the statute of limitations is to prevent the filing of cases that are too old. Memories fade, witnesses die or move away, and once-clear details tend to blur. As a general rule, you should file your case as soon as reasonably possible. Statutes of limitations are generally not less than one year. If the claim isn’t filed within the time set by the statute of limitations, the judge may be required to dismiss the claim, unless there is a good legal justification for extending the time. If you are thinking about filing an older claim, you should consult a small claims adviser to see if there are facts or circumstances that might permit or require the court to extend the time for filing.

Here are some examples of various statutes of limitations:

• Personal injury – Two years from the date of the injury. If the injury is not immediately discovered, it is two years from the date it is discovered or should have been discovered. A minor has two years from his or her 18th birthday to file a case.
• Oral contract – Two years from the date the contract is broken.
• Written contract – Four years from the date the contract is broken.

HOW DO YOU NAME A DEFENDANT?

Try to name the defendant or defendants correctly when you prepare your claim. If it’s possible that you may need to use the court process to enforce a judgment in your favor, it is important that the defendant is named correctly. Otherwise your judgment may be difficult to enforce. If you don’t know the defendant’s correct name and only learn about it later, you can ask the judge to amend or modify your claim at the hearing. You also can amend the judgment at any time to show the judgment creditor’s correct name.

If you’re not sure which of several possible defendants is responsible for your claim, name each person you believe is liable. The court will decide whether the people you named are proper defendants and legally responsible.

Here are some examples of ways to name a defendant:

• An individual – Write the first name, middle initial (if known), and last name. Example: “John A. Smith.” If an individual has more than one name, list all of them (separated by the words “also known as” or “aka”).

• A business owned by an individual – Write the names of both the owner and the business. Example: “John Smith, doing business as Smith Carpeting.” If you win your case, you can enforce your court judgment against assets (such as a checking account balance) in the names of either John A. Smith or Smith Carpeting.

Note: Some banks may not honor a judgment unless the name on the judgment matches exactly the name on the bank account. In this situation, the plaintiff should request the court to amend the name of the defendant to reflect the name on the account. Obviously, this does not apply if the plaintiff attempts to ask the court to completely change the name of the defendant as a way to add someone else on the judgment.

• A business owned by two or more individuals – Write the names of both the business and the owner on each defendant line of Form SC-100. Example: If there are two owners for Suburban Dry Cleaning, the plaintiff would list each respective owner in a different defendant name slot in Form SC-100. Defendant Name slot #1: John A. Smith, Doing Business As Suburban Dry Cleaning. Defendant Name slot #2: Mary B. Smith, Doing Business As Suburban Dry Cleaning.

• A corporation or limited liability company – Write the exact name of the corporation or limited liability company, as you know it, on the claim form. You need not name the individual owners of the corporation or limited liability company. However, you must include either an Inc. (for corporations), LLC (for limited liability companies), LLP (limited liability partnerships), or LP (limited partnerships) at the end of the name of the business entity. If a corporation operates through a fictitious business name or a subsidiary, you must name the name of the corporation and not necessarily the fictitious business name or subsidiary.

HOW DOES THE DEFENDANT FIND OUT ABOUT THE CLAIM?

You must make sure the defendant finds out about your lawsuit. This has to be done according to the rules or your case may be dismissed or delayed. The correct way of telling the defendant about the lawsuit is called service of process. This means giving the defendant a copy of the claim. YOU CANNOT DO THIS YOURSELF.

Here are four ways to serve the defendant:

Service by a law officer — You may ask the marshal or sheriff to serve the defendant. A fee will be charged.

Process Server — You may ask anyone who is not a party in your case and who is at least 18 years old to serve the defendant. The person is called a process server and must personally give a copy of your claim to the defendant. The person must also sign a proof of service form showing when the defendant was served. “registered process servers” will serve papers for a fee. You may also ask a friend or relative to do it.

Certified Mail — You may ask the clerk of the court to serve the defendant by certified mail. The clerk will charge a fee. You should check back with the court before the hearing to see if the receipt for certified mail was returned to the court. Service by certified mail must be done by the clerk’s office except in motor vehicle accident cases involving out-of-state defendants.

Substituted Service — This method lets you serve another person instead of the defendant. You must follow the procedures carefully otherwise your service on the defendant will be deemed defective. You may also wish to use the marshal or sheriff or a registered process server.

WHAT HAPPENS AT THE TRIAL?

Be sure you are on time for the trial. The small claims trial is informal. You must bring with you all witnesses, books, receipts, and other papers or things to prove your case. You may ask the witnesses to come to court voluntarily, or you may ask the clerk to issue a subpoena. A subpoena is a court order that requires the witness to go to trial. The witness has a right to charge a fee for going to the trial. If you do not have the records or papers to prove your case, you may also get a court order before the trial date requiring the papers to be brought to the trial. This order is called a Small Claims Subpoena and Declaration.

If you settle the case before the trial, you must file a dismissal form with the clerk.

The court’s decision is usually mailed to you after the trial. It may also be hand delivered to you when the trial is over and after the judge has made a decision. The decision appears on a form called the Notice of Entry of Judgment.