- What is a Small Claims Lawsuit?
Suppose you buy a television from a store and the salesperson tells you it works fine. But you get it home and it doesn’t work at all, or it works for a little while and then quits. You ask for an exchange, but the store manager refuses to do anything.
Or suppose you sold your collector’s copy of Dicken’s “A Christmas Carol” to a reputable book store and the check for the purchase bounces. Is there anything you can do about it?
In both of these cases and many similar situations you can sue the other party in small claims court. You can also sue an individual or business which has caused damage to your property or possessions. For example, you can sue an automobile mechanic for unsatisfactory work or a dry cleaner for damaging your clothing.
In the small claims division of District Court you can bring a lawsuit against anyone who owes you money. You do not need a lawyer to do it. The maximum you can collect now through a Judgment in the small claims division is $6,000. You don’t need to know the technicality of the law. You state your own case in your own words. In fact, lawyers cannot practice in small claims court. You simply tell the judge or magistrate why you feel that someone owes you money and the person or business you are suing tells their side of the case. After hearing both sides, the judge or magistrate makes a decision on the case. Here is how you go about it.
- How to Start Your Lawsuit
The first step is to file a claim against the person or business you are suing. You must go in person to the district court in which the action occurred. If there is more than one defendant, the suit may be filed in the district in which any defendant is doing business or lives.When you get to the court, tell the clerk that you want to file a small claim and you will be given a simple “complaint” form to fill out. On this form you name the person or business you are suing, tell how much you are suing for and why you are suing. Be sure to give the correct and complete name of the person or business you are suing.
There is a $30.00 fee for filing claims under $600.00 and a $50.00 filing fee for claims over $600.00. For claims from $1750 to $6,500 the fee is $70.00. There is also another small fee for “serving” the papers on the defendant. Be sure to bring this amount with you in cash when you file your claim. You may recover your costs from the defendant if you win the case but not if you lose.
Before filing your claim you should have some idea if the person you are suing has enough money to pay your claim. If you know the person you want to sue would not be able to pay you if you won the case, there is not much point in filing the claim. In most cases you can collect the money awarded you in small claims court but there are a few times when you cannot. You should check this out before you invest your money and your time in filing a claim.
- Preparing for the Hearing
After you have filed your claim the court will notify the other party that you have filed a claim against them. This is called “serving the defendant” with a summons.
When the defendant is served, a date of appearance is set by the court. When you appear on that date one of two things will happen:
If the defendant appears, the hearing will proceed in the manner described later in The Hearing.
If the defendant does not appear, the court may tell you that you can take a “default” judgment. This means that if the judge or magistrate decides you have a good claim you can collect your money without a hearing since the person or business you are suing did not appear in court to fight your claim.
The defendant may offer to pay “out of court” after learning that you have filed a suit. If you reach an out-of-court agreement, the terms must be put in writing and signed by both you and the defendant. Then file a copy of the agreement with the court. The judge or magistrate will probably accept the settlement and it will become enforceable by law.
If there is no settlement out of court, you must prepare the hearing. Get all the evidence you can. Be prepared to back up your claim with a bill of sale, guarantee, lease, accident report, or “I.O.U.” Your rule should be, “If in doubt, bring it to court!” You should also contact any witnesses you want to appear in court in your behalf. Be sure to follow any instruction you might get from the court before the hearing.
The person or business you are suing has to agree to have the case heard in small claims court. If the defendant does not want to go to small claims court they have the right to ask that the case be heard in the general district court. The court will notify you if the defendant makes such a request. In the higher court, both you and the defendant have the right to be represented by an attorney. Whoever loses the case may be asked to pay for legal expenses. Unless defendants are prepared for the extra expense they usually agree to have the hearing in the small claims division.
- The Hearing
The hearing will usually take place at the court where you filed your claim. Be there on time! Bring all your papers or evidence and make sure your witnesses will be on time.The court clerk will call your case and you and the defendant will appear before the judge or magistrate. The judge or magistrate will ask you to state your claim. Take your time and tell what happened to you in your own words and why you think the person or business you are suing owes you money.
Show the judge or magistrate your evidence and introduce any witnesses you have. The witnesses will be allowed to tell the judge what they know about the case too.
Then the person you are suing will have an opportunity to explain the other side of the case. Listen carefully. It’s up to you to make sure all the facts of the case are presented to the judge or magistrate fairly and completely. If you think the defendant is leaving something out or changing the facts around, tell the judge or magistrate, who will want to hear all the facts before making a decision.
The judge’s decision is final. Neither you nor the defendant can take the case to a higher court once the judge has made a decision in the small claims division, although sometimes, on petition by either party, the same judge may reopen the case in small claims division. A magistrate’s decision may be appealed to a higher court.
- Collecting Your Money
If the judge or magistrate decides in your favor, that means the court agrees with you that the person or business you are suing owes you money. The defendant has to pay you the amount that the judge orders plus a small amount in court costs.Defendants who refuse to pay will be forced to pay by having their wages or bank account garnisheed or attached. If this becomes necessary, you must go back to the court and file papers required by the court. You may request a subpoena requiring the defendant to come into court at a certain time. Once in court and under oath, defendants must provide information on bank accounts, property, debtors, place of employment, salary and other facts relating to financial background. You may then get a garnishment on the bank account or wages or an attachment on the property of the defendant.
When you have collected your money you will be finished with your lawsuit.
- Do not be afraid to go to court. Use it if you have an honest money claim against a person or business. It is your right.
- If you have questions or need help, ask the court clerk. He or she will help you as much as legally possible.
- If you can’t afford the court fees, tell the clerk. There is a waiver of fees if you can prove need. But you must have a real need and prove it.
- If you win your case the defendant is legally bound to pay you.
- If the person you want to sue has no income, or his income is from Social Security or any public assistance, there is no reason to sue. The court cannot make a person pay money he does not have and the court cannot attach Social Security or any public assistance money.
- This pamphlet attempts to explain only the highlights of the Small Claims Court. It is not a complete statement of the law.Points to Remember