Introduction

The proposition of going to court to recover money lost due to a default on a loan or to recover money lost due to damage caused by a negligent party may seem intimidating. However, if all other avenues of resolving the issue have failed it may be necessary to bring your case to a small claims court to get an immediate judgement in order to resolve the issue at hand. This article will go over the basics steps that are involved in a small claims court case including: how much it costs, what cases are appropriate for a small claims court, what procedures the plaintiff has to follow, what procedures the defendant has to follow, and what will happen once the case is filed.

What Cases Qualify for Small Claims Court Litigation?

Small claims court, as their name suggests, is intended to hear cases that involve small claims usually that involve less than $5,000 - $7,000 (depending on the state). These cases can be related to a failure to pay on a loan, damage caused by inadequate repairs by a professional, a tenant trying to get back their security deposit, etc. As long as the total value being recovered is less than the limits set by the state’s small claims court, the case can be tried in a small claims court.

What Does it Cost to Have a Case Heard Before a Small Claims Court?

The fees charged will vary from state to state. The plaintiff will be responsible for the bulk of the fees charged including: a filing fee (usually based on the amount of restitution being sought), a fee for serving papers to the defendant, a fee for the Small Claims Court Form, and possibly other court fees. When deciding if you want to bring your case to court or not you should weigh the amount of money you will spend on court fees and missing work against the possible amount of money that you will be able to recover. In general the maximum fees charged for a small claims court case will be about $150.

A benefit to the small claims court process is that it has been simplified so that people won’t have to involve an attorney in the case. This will save you hundreds of dollars in legal fees, and it will allow you to keep all of the money that you are able to recover.

What Procedures Should the Plaintiff Follow?

Step #1: Obtain a Small Claims Court Form

If you are the person who has a claim against another party then you will need to initiate the small claims court process by first obtaining the Small Claims Court form and then filling it out. You may be able to purchase this form online from your local small claims court website, or if it is not available online you can go down to your county courthouse and request the form.

Step #2: Fill Out the Small Claims Court Form Completely and Accurately

This step is important. The information that you will need to fill out this form includes: the correct name of the defendant, the correct address of the defendant, the amount of money you want to recover, and the reason for your claim (basis).

Make sure that you fill out the form using the defendant’s correct name and address as this information will be used to locate the defendant when serving them the summons to court. In most cases you will simply use the name that you know the person by and the address of their business or home residence, depending on the situation.

If the person you are suing using a business name that is different than their legal name you will need to fill out the name space as follows "Mary Jane trading as MJ Plumbing." Similarly if you are suing a person that is incorporated, for example Mary Jane, Inc., however, they are doing business under the name MJ Plumbing then you would fill out the form as follows, "Mary Jane, Inc. trading as MJ Plumbing." Businesses that use a fictitious or assumed name are required by law to file a fictitious name statement with their local clerk’s office at the local circuit court. This statement is required to list who owns the business, their address of business, and their address of residency and it can be used to locate the owner of the business that you intend to sue.

If you are only trying to recover money from your claim then you will need to fill out the form titled "Warrant in Debt." In order to fill out this form you will need to know the specific amount of money that you are seeking. You also must have a reason for trying to recover the money. This reason is the basis for your case.

If, on the other hand, you are trying to get a piece of property returned to you or delivered to you, then you will need to fill out the form titled "Warrant in Detinue." To complete this form you will need to be able to describe the property that is being wrongfully withheld from you, you must be able to quote its value, and you must be able to explain the reason why the property should be returned to you. This will be the basis for your case.

Step #3: File Your Claim

After you have completed your claim form I would highly recommend making two or three copies. The original will be filed with the clerk, the first copy you should keep for your records, and the second copy should be mailed by First Class Certified Mail to the defendant (10) ten working days before the court date.

At this point you will also be asked to fill out the Certificate of Mailing form that will be delivered to the judge during the trial, or delivered to the clerk’s office before the trial begins.

When you file your claim you will be required to pay for the court and miscellaneous fees associated with your case. You should be prepared to pay for these fees with cash, a money order, or a cashier’s check. Most courts won’t except credit cards or personal checks, so be prepared to pay using one of the authorized payment forms.

Step #4: Prepare Your Case

While you are waiting for the court to process your case you should prepare your case for trial. You will need to get every piece of evidence that supports your case that you can, including: payment stubs, cancelled checks, contracts, signed agreements, and even witnesses if they are available. Organize all of your information so that you will be able to present your case easily to the judge and be able to show support for your position.

Step #5: Subpoena Your Witnesses

You will need to fill out and file a Request for Witness Subpoena for every witness that you are going to call during your trial. This is an optional step, but it is highly recommended for all witnesses even those who have already agreed to appear.

What Procedures Should the Defendant Follow?

Step #1: Reviewing the Summons

If you are served with a summons for a small claims court you will want to first carefully read through the summons and see if the claim is valid or invalid. If you are at fault, and willing to make amends, then you can try and contact the plaintiff and arrange a settlement out of court. If you feel that you are not at fault then you will want to take steps to defend your position.

Step #2: Prepare Your Case

You will want to gather evidence that shows that you are not at fault and that the plaintiff has no grounds for suing you. Evidence may include photographs, receipts, sales contract, signed agreements, contracts, cancelled checks, bank statements, and even witnesses.

After gathering your evidence try to think about what kinds of claims the plaintiff may make, and come up with answers that show that you are not at fault and find evidence that supports your contentions. Be prepared to answer the judge’s questions and provide evidence that supports your claims.

Step #3: Subpoena Your Witnesses

You will need to fill out and file a Request for Witness Subpoena for every witness that you are going to call during your trial. This is an optional step, but it is highly recommended for all witnesses even those who have already agreed to appear.

What Happens When a Case is Filed?

Once the case is filed the court clerk will fill out their portion of the civil warrant and they will then send this information to the sheriff’s office in the country where the defendant is located. A deputy or private party will serve the defendant with their summons. If a home address is available the summons can be attached to the home’s door or it can be posted in a visible location. However, if the only address available is a work address, then the summons has to be served to the person being summoned. If the person is not located the summons will be returned to the court as unserved.

The civil warrant will include the time, date, and location of the trial, as well the grounds for the suit. If the defendant is legally served with a summons and they fail to show up at the trial then the judge will enter a default judgement in favor of the plaintiff. This means that the plaintiff wins their case and should get the amount of restitution that they documented on their forms.

In cases where the defendant was served a warrant via a posting at their home without physically accepting the summons, then the plaintiff will need to complete a few extra steps before a default judgement can be filed. They will need to produce evidence that they mailed copy of the civil warrant to the defendant at least 10 days prior to the court date. This evidence can be a certified mail form, or a return receipt form from the letter that was sent. (These mail services are less than $3 in most cases.) You should also use a form Certificate such as DC-413 to prove that you mailed a copy of the civil warrant to the defendant.

If the situation is reversed and the plaintiff fails to appear in court then the defendant has the option of asking the judge to rule in their favor and against the plaintiff. The defendant may also request that the case be removed from the small claims court and be moved to the general district court. To do this they simply have to fill in the Removal to General District Court form that is on the back of the civil warrant. If this option is selected the form has to be filled out and returned to the court prior to the initial small claims court trial date.

If the case goes to trial the case will be handled in an informal manner, with the judge guiding the process. Both sides will have the opportunity to present their side of the case, present their evidence, and question witnesses in front of the judge. It is important to remember that during this process you should try and remain calm and collected, and use evidence to support your case and not emotion. Emotional outbursts will only hurt your case and may give your opponent an edge. Remember the judge will rule only on the law and not on feelings.

Once the case has been heard the judge will make a ruling either for the plaintiff or for the defendant. If the judge rules in favor of the defendant than the plaintiff is not entitled to recover the money or property that they were suing for. If they wish to appeal the judge’s decision then they can file for an appeal by filling out a Civil Appeal Notice. If this option is selected then the case will be formally heard before a regular circuit court. At the appeals level an attorney will probably be necessary.

If the judge rules in favor of the plaintiff then the amount of money or property won will depend on the plaintiff’s ability to prove that they are due the money or property, and they their ability to prove that the amount that they are demanding is appropriate. If the judge feels that the amount of restitution is overvalued, then they may rule that a smaller amount be paid to the plaintiff. The defendant can appeal the decision in the same manner as is available for the plaintiff.

After the judgement has been entered the process of enforcing the judgement begins. The plaintiff, now known as the judgement creditor, may ask the general district court clerk for assistance in getting their money or property. They may fill out a Summons to Answer Interrogatories, which is used to get contact information and asset information about the defendant, now known as the judgement debtor. The judgement creditor may also use an Abstract of Judgement to place a lien on the debtor’s real estate, or a Writ of Fieri Facias to have the debtor’s personal property be sold at auction to generate the restitution amount, or they can obtain a Garnishment Summons to garnish the debtor’s bank accounts and wages in order to recover the money owed to them.

The purpose of a small claims court is to provide a structured environment in which disputes over money and property can be settled without the formalities and legal expertise used in a regular circuit court. If you find that you are in a situation where recovering money due to you will only be possible by suing the other party, and if your claim is worth less than $5,000 (depending on the state), then a small claims court may be your solution. If you need additional assistance you should talk with your attorney or legal counsel for help.