Difference between revisions of "File a Case in Small Claims Court"

{{fa}}In small claims courts, individuals can file lawsuits quickly and inexpensively. You can file suits against individuals, corporations, partnerships and other entities. Each state sets the maximum amount that you can sue for in these courts. The dollar amounts range from $2,500 to $25,000.<ref name="rf1">http://www.nolo.com/legal-encyclopedia/small-claims-suits-how-much-30031.html</ref> Rules for filing a case in small claims court vary between states and even counties. Before filing your case, be sure to check with your county clerk or an attorney to find out the rules in your state.  

#*Many types of cases can be heard in small claims court. For example, the return of security deposit or a payment dispute over broken or damaged property. Other cases involve breach of a written or verbal contract. In your case, figure out how much money you are owed and by whom. Also consider why they owe you that money.<ref name="rf2">http://www.jud.ct.gov/faq/smallclaims.html#2</ref>

#*In some counties, small claims courts review evictions and other landlord-tenant matters.<ref name="rf3">http://www.oklahomacounty.org/courtclerk/SmallClaims.aspx</ref> If you're dealing with such issues, you'll have to find out what the laws in your area are if you are trying to [[Evict a Tenant|evict a tenant]].

#*If you need more guidance, you may contact a lawyer through your state bar association.<ref name="rf4">http://apps.americanbar.org/legalservices/findlegalhelp/states.html</ref> State and county bar associations often offer free referral services to qualified local attorneys, and may also offer free consultations with attorneys that specialize in the legal issues relevant to your case.  

#*A demand letter should explain what payment or action you are seeking. It should make it clear why you are seeking the payment or particular action. It should also specify a time limit for payment or performing the particular action.<ref name="rf5">http://www.nolo.com/legal-encyclopedia/demand-letter-settle-dispute-30105.html</ref>  

#*Although not required, a demand letter is an attempt to settle that matter without taking formal legal action. In some cases, just the threat of a lawsuit can cause the person you are considering suing to pay you.<ref name="rf5" />

#Consider mediation. Mediation is a form of alternative dispute resolution (ADR). ADR is a tool you can consider to get the money the other party owes you without a lawsuit. You can suggest to the other party that a third party mediate your conflict. You can do so in the demand letter or at any point during the process:<ref name="rf6">https://www.law.cornell.edu/wex/alternative_dispute_resolution</ref>

#*Mediation is a process of negotiation where all sides state their case to an impartial third party. This mediator then issues a judgment about who owes what to whom.<ref name="rf6" />

#*Parties often share the cost of hiring a neutral mediator, which will vary based on the mediator and complexity of the case. This person will assist them in working out a mutually agreeable outcome. The process includes an evaluation by a neutral third-party, negotiation, and mediation.<ref name="rf6" />

#*ADR is often less adversarial, more efficient and less expensive than formal legal processes. <ref name="rf6" />

#Consider arbitration. Arbitration is another form of ADR. Arbitration allows parties to litigate the dispute without going to court.<ref name="rf7">http://www.sdcourt.ca.gov/portal/page?_pageid=55,1555406&_dad=portal</ref>

#*Arbitration may be binding or non-binding. If the parties agree to binding arbitration, they waive their right to a trial. In doing so, they agree to accept the arbitrator’s decision as final. Non-binding arbitration means the parties may request a trial if they do not accept the arbitrator’s decision.<ref name="rf7" />

#*Some states, such as Alabama, offer you a maximum of $3,000 in small claims. Other states, such as Tennessee, offer up to $25,000.<ref name="rf1" />

#Determine the right venue for the suit. Figuring out where to file the claim can be tricky. For assistance, visit the local superior court in the county where you live. Or you can use the Internet to find out which court handles small claims in your county. The place where you’ll file suit will most likely depend on the following:<ref name="rf8">http://www.courts.ca.gov/9745.htm</ref>

#*Some counties, such as the County of San Diego, provide detailed guidebooks on how to file a small claims court case.<ref name="rf9">http://www.sdcourt.ca.gov/pls/portal/docs/PAGE/SDCOURT/GENERALINFORMATION/FORMS/SMALLCLAIMSFORMS/PKT019.PDF</ref>

#*Certain professional organizations, such as the Texas Young Lawyers Association, also provide guidebooks.<ref name="rf10">https://www.depts.ttu.edu/sls/forms/How-to-Sue-in-Small-Claims-Court.pdf</ref>

#Determine the exact name(s) of the person(s) you want to sue. It's important that you use the ''exact'' legal name of the person you want to bring to small claims court.<ref name="rf11">http://www.jud.ct.gov/faq/smallclaims.html#10</ref> Use the country clerk's computers to track down the legal name(s) of anyone you wish to name in your suit.

#*The cost of filing a claim in small claims court ranges from around $15 to $200, depending on the state you live in.<ref name="rf12">http://www.mediate.com/articles/SoskinL1.cfm</ref>

#File the claim. Visit your county courthouse to fill out the necessary paperwork.<ref name="rf3" /> In some counties, you can find the required paperwork online.

#*Depending on your state, the online forms may include a “Plaintiff’s Claim and Order to Go to Small Claims Court” form as well as a “Proof of Service (Small Claims)” form.<ref name="rf13">http://www.courts.ca.gov/forms.htm?filter=SC</ref>

#Serve the defendant. The process of notifying the other party of the lawsuit is called "serving" the defendant.<ref name="rf14">http://www.nolo.com/legal-encyclopedia/free-books/small-claims-book/chapter11-4.html</ref> You can use several different ways to serve the defendant the papers.

#*One way is to enlist someone who's not in any way a party to the lawsuit and who is over 18 years old to serve the papers.<ref name="rf14" />  

#*Another way is to hire a professional process server (also called "due process server") to serve the papers. This is a good idea if you think the defendant might try to avoid the service.<ref name="rf14" />  

#*A third way is to let the county sheriff, marshal or constable serve the papers. This is another good choice for defendants that might try to avoid service. This option is not available everywhere, and does typically require a fee.<ref name="rf14" />  

#*A final option is to have the county clerk serve the papers via certified mail.<ref name="rf14" />  

#*You must have the papers served on the defendant a certain number of days before your court date. For example, in California, you must serve the court papers at least 15 days in advance of the court date. If the defendant is a person, business, or public entity outside of the county, you have 20 days.<ref name="rf15">http://www.courts.ca.gov/9742.htm</ref>

#*All defendants in the lawsuit must be served; it's not enough to serve just one of the defendants if there is more than one.<ref name="rf14" />

#Sit in on a small claims court hearing. Before your hearing, go sit in the audience of a small claims hearing. It can be helpful to know what to expect when the judge calls your name and asks you to present your case.<ref name="rf16">http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Publications/Family+Law+Courts+publications/Going+to+Court+-+tips+for+your+court+hearing</ref>

#*Direct evidence is evidence that proves a fact without any guesswork. You might be able to provide many types of direct evidence. One example might be the damaged or broken piece of property you are seeking payment for; testimony from someone who saw the defendant damage the property would also be direct evidence; and a third example might be a receipt displaying the total value of the damaged property.<ref name="rf17">http://legal-dictionary.thefreedictionary.com/Direct+Evidence</ref>

#*Circumstantial evidence suggests something occurred, but you can't prove it directly. For example, you might have a witness who says she saw the defendant take the piece of property and enter a building. She might go on to say that she saw the defendant leave the building with the damaged or broken property. This doesn't prove the defendant damaged the property. It would, however, suggest that this is a likely possibility.<ref name="rf18">http://legal-dictionary.thefreedictionary.com/Circumstantial+Evidence</ref>

#*Whenever possible, avoid relying on hearsay. Hearsay is testimony or documents which quote a person who is not in court.<ref name="rf19">https://www.law.cornell.edu/wex/hearsay</ref>

#Understand the law. Hopefully, you'll win your case. But just because you win a decision in small claims court doesn't mean you'll get the money owed to you. The defendant, also known as the “judgment debtor,” has 30 days to either pay you or ask for a new trial by appeal.<ref name="rf20">http://www.dca.ca.gov/publications/small_claims/collect.shtml</ref>

#*To garnish wages you’ll need to complete a “Writ of Execution” form. It must be approved by the court and served to the defendant.<ref name="rf21">http://www.courts.ca.gov/documents/ej130.pdf</ref>

#*To perform a bank levy, you’ll also need to  complete a “Writ of Execution” form.<ref name="rf21" />

#Record an Abstract of Judgment. Another option that may be available in your state is to record an "Abstract of Judgment for Civil and Small Claims." This puts a lien on any land, house or other building the debtor owns.<ref name="rf20" />

#*To record an Abstract of Judgment for Civil and Small Claims, you’ll need to complete another court form.<ref name="rf22">http://www.courts.ca.gov/documents/ej001.pdf</ref>

#Ask the police to do a “till tap” or place a “keeper” in the debtor’s business. If the debtor is a business with a cash register, a law enforcement official can go to the business and take enough money to satisfy your judgment and associated fees.<ref name="rf20" />

#*To request a “till tap” or a “keeper,” you must complete another court form. In some states, such as California, you must complete a “Writ of Execution” form.<ref name="rf21" /> In some states, you must pay significant fees in advance. A till tap, for example, typically costs $60 to $100. The cost of a keeper will vary depending on how long you want them to remain at the business.

#Conduct a judgment debtor’s examination. A judgement debtor’s examination is a procedure in which the judgment debtor must go back to court. In court, the debtor must answer questions about his/her finances.<ref name="rf20" />

#*To request a judgment debtor’s examination you must complete another court form. In some states, such as California, you must complete a “Judgment Debtor’s Examination” form.<ref name="rf23">http://www.courts.ca.gov/documents/ej125.pdf</ref>

#Suspend the judgment debtor’s driver’s license. In some states, if you win a small claims case over an auto accident and the defendant doesn't pay, you can have the defendant's license suspended.<ref name="rf20" />

#*In California, you can request a 90-day suspension if the judgement is under $750. To use this option, you must complete DMV Form DL17.<ref name="rf24">https://www.dmv.ca.gov/portal/wcm/connect/1f542cca-13d2-4768-ab7f-1d275bc41fe6/dl17.pdf?MOD=AJPERES</ref>

#*If the judgment is over $750, you can request suspension until the defendant satisfies the judgment. To use this option, you must complete DMV Form DL30.<ref name="rf25">https://www.dmv.ca.gov/portal/wcm/connect/fb850161-30ad-4dbb-be46-df0008cd858a/dl30.pdf?MOD=AJPERES</ref>