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What
Is Small Claims Court? |
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Small Claims is the term used to describe the
court process for resolving civil disputes involving small amounts of
money. The amount you can file a claim for is 5,000 or less not
including court costs. This figure does not include attorney's fees or
interest. You can not be represented by an attorney in small claims
(unless it has progressed to an appeal) but are encouraged to speak to
one for legal advise. Some counties have small claims advisory personnel
to help with questions. The basic goal of small claims is to allow a
person or business the opportunity to resolve an undesirable situation
without the formalities and attorneys required in regular court.
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Who
is allowed to sue in small claims? |
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A person (18) years of age or older may file in
small claims. Person(s) under eighteen years old may also use the small
claims system, but if represented by parent(s), a guardian, or an adult
friend. All businesses, (individual, a partnership or a corporation) may
also file for small claims court.
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Can
I use Small Claims in my situation? |
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You have the opportunity to resolve a problem
in small claims for example:
* If someone provides service and it is not done correctly and will not
fix it.
* If someone owes you money, and will not pay.
* If someone has property belonging to you and will not return it.
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Do
I have a good case? |
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Here are some questions to ask yourself before
filing.
Before considering filing a small claim it is recommended that you
contact the other party in person and/or with a written letter. If you
can not reach an agreement with the party who owes money or property
then small claims might be the alternative. Do you have a legitimate
claim? The law is based on fairness and what might seem fair to you may
not seem fair to the court
Have you exhausted all means of resolving the issue with the other
party? If you have not and you file the claim, the court may pick up on
the fact that this could have been resolved outside of court.
Do you have all the documentation in hand to support your small claim in
court? Courts do not take favorably on he said/she said or I said.
Paperwork and hard evidence are your support.
Is this the right court for you to file your claim? Your damages must be
$5,000 or less.
Do you have the legal name of the party you want to sue? You must have
the correct name and if it is a company you may need to look through the
county records in order to collect a judgment.
If you have answered yes to all of these you may have a good case.
Legal council can certainly help advise you on
the validity of your claim, but that will cost you some money. However,
talking with an attorney may help you win your case, or help you see
that you do not have a valid claim at all. This could save you the time
of the entire process.
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Where
do I file a claim |
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If you are ready to file a claim you will need
to visit the courthouse of:
* the county where the business is located or the county where the
defendant lives.
* the county where the dispute or damage took place.
* the county where the property is located or the contract was carried
out.
If you do not file your claim in the right county, the defendant can and
most likely will request for a dismissal. This can happen before the
court date or when you both show up. Either way the judge will grant the
request. A request for a change in venue could happen as well, but not
likely. This will move your lawsuit to the county where the incident
occurred. If you reside in a large county, a defendant can still make
the request to another courthouse in the same county. However the
request must be decided by a judge.
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How do I
file a claim
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Your lawsuit will start by filing a complaint
form at the small claims window at your courthouse. Plaintiff's Claim
and Order to Defendant (Small Claims) (form SC-100). Some offices have
the forms behind the counter and others how them in a bin on the wall
before you get to the window. The form is rather small but it must be
filled out properly and legibly so the clerk can retype it. There are 3
main points on the form.
* The amount of damage
* A one line statement of what happened
* The name and address of the party you are suing.
The defendant's legal name is required and if you have difficulty
finding it you can check with the county clerks office, or the
Office of the Secretary of State. In general the clerk will be happy to
help you get the information you need.
There is a 20 dollar filling fee for the small claim paperwork.
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How
do I serve the paperwork |
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After the claim form has been filled out, the
next step is to have the defendant's copy served to him. This is known
as service of process. The court system is not responsible for this task
it is up to you to make it happen. This step is time sensitive as the
defendant must be served with 10 days of the trial if living within the
county or 15 days if the defendant lives outside the county.
There are basically 3 means of process:
* Mail - You ask the court to process by certified mail. This is not
recommended as if the defendant notices the letter is from the court, he
or she can refuse to sign and it will be returned undelivered.
* Process Server - You can have the paperwork served to the defendant by
an person over the age of 18 who is not affiliated with the case. You
cannot do this yourself. The process server must also fill out a proof
of serve form.
* Law Officer - You can have the marshal or sheriff sever the paperwork.
There is usually an office around the court house, or the clerk can tell
you where it is. The fee is $25.
Court costs and processing fees will be added to your settlement if you
win your case.
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When
will the hearing be scheduled |
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Once you file the claim you will be given a
court date. If is usually scheduled about 30 days out, 40 is the
maximum. 70 days if you do not live in the county. You may be be asked
if you prefer the morning or afternoon session. Each courtroom typically
handles 2 sessions. On occasion if the docket is not cleared at the end
it can carry over to the next session of the case can be rescheduled for
another day.
Make sure you appear, otherwise you will have to re-file. If the
defendant does not appear the judge may issue a default judgment against
him. You will still be required to present your evidence to the judge
and the default will be entered once the judge decides that your claim
is valid.
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What
will happen at the trial |
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Be on time for your court hearing. If you are
late and your case is called, the judge may dismiss it. Cases
missing a Plaintiff are usually heard first to clear the courtroom of as
many participants as possible, these are immediate dismissals. Then cases where the defendants did not
appear are heard.
Be prepared and bring all your evidence, paperwork, receipts, photos and
witnesses with you. You only get one try at this, you can not come back later or have
it re-schedule if you forgot to bring something. If you are
missing a witness you can ask the judge for a continuance and it may or
may not be granted. A sopena is good to use if you suspect someone may
not show up on the trial date.
Many larger court systems have volunteer mediators. If your court
has this you will be notified by the bailiff when the session starts.
The mediator is there for anyone who might like to try and settle prior
to going before the judge. This is an option that both parties must
agree to. Occasionally the judge may look at your case and order both
you and the defendant to talk with the mediator before hearing either of
your arguments. If this happens, you have no alternative but to speak
with the mediator, refusing mediation is not look up favorably by the
judge.
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Going
before the judge |
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The plaintiff will present his side first, then
the defendant will follow. The judge may ask questions throughout the
testimony or may just listen. Once the defendant presents his arguments
the judge will turn it back over to the plaintiff to comment on anything
the defendant just said. This will go back and forth until the judge is
satisfied that all the issues have been presented and each side has been
given sufficient opportunity to rebuttal anything the other has stated.
While you are presenting your testimony be professional and courteous.
Don't interrupt or argue with the judge. If you are unclear of
something, ask the judge when it is your turn to speak. Be as direct and
to the point as you can, presenting too much is not necessary and should
be avoided. Shouting and/or profanity will only work against you.
Then the judge decides who wins. This used to occur during the hearing,
but lately there are more and more cases where the judgment is mailed to
both parties after the fact. This is due many times to additional case
law research the judge may conduct after the hearing or additional
review of the evidence. It can also be just the norm in your county.
If you lose the decision it is final, you only get one try. Be prepared
the first time.
If you win the decision, the defendant has the opportunity to appeal the
judgment and have a new trial. If this occurs the process starts over
and both parties must present their case again only the hearing will be
in the civil division of the superior court rather than small claims
court. On an appeal both parties have the right to be represented by
attorneys.
Good luck
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