Small Claims

Before you file a claim, you should contact the person or business you plan to sue and attempt to settle your dispute out of court. This effort may save you both time and money. You should also find out if the person or business you plan to sue has any money or assets to pay your claims, if you should win. Otherwise, you may have a difficult time collecting on a court judgment. Remember, it is up to you-not the court-to take further legal action against the person or business if they do not pay the judgment. 

An individual who has reached the age of 19, a partnership, or a corporation may file a claim, with or without an attorney. If a partnership files without an attorney, the person representing the partnership must be a partner or employee of the partnership. If a
corporation files without an attorney, the person representing the corporation must be an officer or full-time employee of the corporation.

You or your attorney should go to the Small Claims Division of the District Court in the county where the person or business you wish to sue lives or has an office and file a Statement of Claims (Complaint) form. The Court Clerk has this form. The Court Clerk cannot give you legal advice nor can they assist you in filling out forms (you, an individual or an attorney of your choice may do this). If you are physically unable to fill them out yourself, this office will gladly make reasonable accommodations in order to help you complete the necessary paperwork. Use only BLACK ink when filling out forms. 

Once you complete the complaint, you become the "plaintiff" in the case and the person you are suing is the "defendant". The information that you must have in order to complete the case is the defendant's correct and complete address and/or their place of employment, so that service of the paperwork is done in a timely manner.

You must pay a filing fee at the time the claim is filed. Filing fees are nonrefundable. NO PERSONAL CHECKS or CREDIT/DEBIT CARDS. If you cannot afford to prepay this fee, you can fill out an Affidavit of Substantial Hardship form and ask the judge to delay payment. You may attain this form from the Court Clerk. The cost of filing the case is broken down into a fee description according to the amount of the claim (amount of monetary damages you are seeking or claiming) and the fee charged at the time the case is filed. The fees for filing a claim with more than one defendant, additional services such as garnishments, executions, and certified mail (applicable only if service is to a post office box or out of state defendant) are listed below as well. Any additional fees or services will be added to what the defendant owes if you (the plaintiff) win the case. Otherwise, you (the plaintiff) will be responsible for those fees accumulated over the course of the claim. 

See Fee Chart 

FILING FEES ARE NONREFUNDABLE.

The clerk will assign your case a number and you should use this number whenever you contact the court concerning your case.

Once the forms are completed, this office will process the complaint. It normally takes 1 to 2 weeks to process the case. After it is processed in our office, it is then sent to the Sheriff's Department for service on the defendant(s) or issued by Certified Mail, whichever process you stated. Once served with a Statement of Claim, the defendant has 14 days to complete the Answer form and to file the Answer with the Clerk's office. A computer printout with the service date will be mailed to the plaintiff. Please do not call for service date. We do not check service by telephone. If the defendant files an answer, the case will be set for trial in 6 - 8 weeks from the receipt of the answer. You should have sufficient time or notification of the trial in order to prepare in writing to the clerk's office for the judge to review. If the defendant fails to file an answer, the plaintiff can take a judgment by default by coming into the office and filling out a default request and affidavit form.

You may choose to settle with the plaintiff before the date the claim is set for trial. If you do settle, then the claim may be dismissed, with no judgment entered against you. If you choose not to settle or you are unable to settle, you must answer the Complaint within 14 days after being served, admitting or denying all or part of the claim. Remember, your answer must be filed within 14 days or a default judgment may be entered against you. As the defendant, you may also choose to file a Counterclaim, which is a claim that you have against the plaintiff. All parties to a small claims case are encouraged to try and reach a settlement agreement prior to trial. All settlement agreements should be in writing and should state who is to pay the court costs. If the defendant does not agree to pay the court costs as part of the settlement, the plaintiff will be responsible. If a settlement agreement is reached before the trial, the plaintiff must immediately notify the clerk so that the trial can be canceled.

If an agreement cannot be reached, both the plaintiff and defendant should get together all papers, receipts, bills, sales tickets, estimates, photographs, etc., having anything to do with the claim. You should write down the details and facts of the case to assist you in telling your side of the story at the trial. As the plaintiff or defendant, you may bring any witnesses you feel can help explain your case. If there is any reason to believe a witness will not voluntarily appear, you may ask the clerk to issue a witness subpoena requiring that person to appear. You will be required to pay a witness subpoena fee.

BE ON TIME. If you are late, the judge may dismiss your case (if you are the plaintiff) or he may enter a default judgment against you (if you are the defendant). If something comes up which would prevent you from being on time or appearing at the trial, you MUST inform the clerk as soon as possible and request a continuance (delay) of the trial. A trial in Small Claims Court is an informal hearing before the judge. There is no jury. When the case is called, the plaintiff will present his evidence and his witnesses. The defendant will then present his evidence, and call his witnesses. After hearing both sides of the case and looking at the evidence, the judge will make a decision and render a judgment based on the law and the facts presented.

Mediation is available in small claims court while you wait for your trial time on the small claims docket. Mediation is one way for people to settle disputes. In mediation, the people involved in the dispute talk about solutions that might work for them. The people who help them work out a solution are called mediators. Mediators are trained in dispute resolution, and their aim is to encourage people who are involved in a problem to work out a solution that satisfies them. Mediation is free and voluntary. Either party may terminate the mediation at any time before a settlement is reached. If the case is resolved through mediation, an agreement will be signed by all parties, and will be approved by the judge. If the case cannot be resolved to the satisfaction of both parties you will return to the courtroom and begin your trial.

If either of you (plaintiff or defendant) disagrees with the decision, you may appeal the case by filing a NOTICE OF APPEAL form with the clerk of the Small Claims Court within 14 days after the date of the judgment. The clerk has this form. The appeal will be heard in the Circuit Court. The party filing the appeal must be prepared to pay a filing fee of $426.00 for a non-jury trial or $526.00 for a jury trial and post a bond to cover any unpaid court costs (for an Unlawful Detainer). You may need the assistance of an attorney if you choose to appeal because the simplified procedures of Small Claims Court do not apply in Circuit Court.

If the defendant does not pay the judgment (after the appeal time has run-14 days) it is up to you and not the court to take one of the following actions to collect your judgment:
· Garnishment of Wages--Obtain a court order to garnish (withhold) wages of the defendant to satisfy the judgment. It must meet state and federal requirements in order to collect using this method. Paperwork will then need to be filed in our office.
· Garnishment of Bank Account--Must know of the defendant's bank and bank address for paperwork to be filed in our office.
· Execution for Levy on Property-- The property levied cannot be under a recorded mortgage (plaintiff can check with the probate court record room for recordings). A copy of the current tax assessment along with a copy of the deed is required for property. (The tax assessment information may be obtained by going to the Tax Assessors office. The deed can be located in the Records Department on the 3rd floor, of the Madison County Courthouse.) If executing on a vehicle, the current years tag receipt is needed. (This can be requested from the License Department, located in the Madison County Service Center at 1918 North Memorial Parkway) It is important to mention, you cannot garnishee a retirement check, disability check, welfare, child assistance, unemployment or a social security check. All of the above actions require an additional filing fee. (SEE FEES)
The clerk has the necessary forms and sometimes the method of collection may become involved, you may wish to have an attorney explain the procedure and assist you in filing the appropriate forms. Again the court clerk cannot give you legal advice. The court has no way of collection outside of the above-mentioned methods and judgments that are good for up to ten years. It is important to mention, it is easier to get a judgment than it is to collect on it. A judgment is not a guarantee of collection. The plaintiff can request a certificate of judgment and have it recorded in the county probate court. You will need to complete the form and the clerk's office will return it to you where you then can record it in the probate judge's office. It will then go on record and must be satisfied before the defendant can borrow money or sell property.