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#180 Small Claims Court

mp3 #180 How do You Use Small Claims Court? (mp3 file)


This message will discuss the following questions:

1. What kinds of disputes can you take to small claims court?

2. What can you do if you are owed more man the small claims limit?

3. Should you settle out of court?

4. How does small claims court work?

5. How do you file your claim?

6. What if you have a claim against the person who is suing you?

7. What should you do before going to court?

8. What should you bring to court with you?

9. What happens if you do not show up for the hearing?

10. If you Lose, can you take the case to a higher court?

11. What if the judge decides against you but you have a problem paying?

12. How do you collect your money?

First, what kinds of disputes can you take to small claims court?

You can use the small claims court if you have a dispute with a person, company or government agency involving $7,500 or less.

You might want to take a dispute to small claims court - which is called "making or filing a claim" -if, for example:

* Someone dents your fender and refuses to pay for repairs.

* Your new sofa comes apart at the seams, and the store will not fix it or give back your money.

* The dry cleaner ruins your favorite shirt and will not pay you anything.

* The landlord will not return your security deposit, even though you left the apartment in good condition.

* You loaned money to someone who will not pay it back.

Next, what can you do if you are owed more man the small claims limit?

You may want to hire a lawyer and sue in a higher court, or, you may cut your claim to fit the $7,500 limit.

For example, if a person owes you $7,500 you can give up $400 in order to bring your claim down to the $7,500 limit. However, you cannot sue the person twice - once for $7,500 and then for $400.

Also, keep in mind that between January 1 and December 31 of any year, you cannot file more than two claims for amounts between $2,500 and $7,500. Your other claims in a calendar year are limited to $2,500 or less.

When you take a dispute to small claims court, you may be entitled to receive "costs" from the other person. These are such charges as filing fees, the costs of notifying the person you are suing, and witness fees. Ask the court to add these costs to the "judgment", which is the amount of money that the court says the other person owes you.

Next, should you settle out of court?

You must decide whether the small claims court is the best answer to your problem. You will have to spend some time getting ready for a court hearing. You also may have to take time off work to visit the small claims court clerk's office and to attend the hearing.

Even if you win, the person you sued may not have the money to pay you. Then, you will need to spend more time and money trying to collect. If you do not have time to collect the money yourself, you may have to hire a collection agency. The agency may charge a fee of up to 50 percent of the money it collects.

Instead of going to court, you might consider:

* Dealing directly with the other party. Both of you may end up saving time and money if you can agree on a way to settle the dispute. Let's say that you are the person being sued. If someone says you owe $300, you might say, "I think you are wrong about that, but I would be willing to pay you $150 so that we can both forget it". If you do this, be sure to have a written agreement and keep a signed copy in a safe place. Also, check with the clerk of the small claims court to be sure that the lawsuit is dismissed.

* Arbitration. If your dispute involves a contract, check to see if the contract includes the right to arbitration in case of a disagreement. This means you can submit the contract dispute to an independent, impartial panel that will hear both sides and recommend a solution. If you file a suit in small claims court, you may give up the right to arbitrate the dispute later.

* Mediation. This means that a "neutral third party" - a person who is not involved in the dispute - tries to help you and the other party come to an agreement. Mediation is voluntary, and mediators do not give their opinions. Instead, they help people exchange information and ideas and talk about ways to settle their differences. Check with the small claims court clerk to see if there is a mediation center in your area.

Next, how does the small claims court work?

In most instances, lawyers are not allowed in small claims court, so you must represent yourself. However, you can talk to a lawyer beforehand. This is true whether you are the "plaintiff" - the person who is suing - or the "defendant" - the person being sued.

Small claims courts are informal. They do not have complicated ways of doing things. No one is allowed to make objections. And there are no juries.

Cases move quickly. Usually, a hearing is scheduled within 40 days. However, if one of the people involved lives outside the county, it might take up to 70 days.

You do not have to be a united state citizen to use the small claims court. You do have to be at least 18 years old and mentally competent. If you are not, the court must appoint a "guardian" - parent, relative, or adult friend - to sue for you.

When you file your claim, the court clerk generally will set the hearing date. In larger communities, small claims court is held some evenings or on Saturday once a month.

Also, many counties have a small claims advisor who can answer your questions and explain the process. An advisor also may be able to help you to find a mediation service. Usually the information on contacting the small claims advisor is included on instructions available from the court.

Next, how do you file your claim?

Before you file a claim, you must first demand payment from the other person, and that person must refuse to pay or ignore your demand. It is a good idea to make the demand in writing, and to keep a copy.

Most personal injury claims must be filed within two years. But claims dealing with property damage, written contracts and many other problems can be filed even after a year has passed. Also, time limits and procedures are different if you want to sue a federal agency. So, be sure to ask the small claims advisor for information.

Here are three basic steps in filing a claim:

Step 1: fill out and sign a "claim of plaintiff" form.

You will need this information:

* The right place. You need to file your claim in the proper courthouse. Depending on the reason why you are suing, this can be where the dispute took place, where the person you are suing lives, where the firm you are suing does business, where the contract you made was supposed to be fulfilled, or where the accident that led to your dispute took place. Check with the small claims advisor, who you can contact through your county small claims court, to be sure you file in the right place.

* The defendant's proper name. This is very important. If you do not correctly state the name of the person or company in your claim, the case may be dismissed. Then, you may have to start all over. An incorrect name also may cause problems when you try to collect money from the defendant.

If you sue individuals, you will need each person's full name and address. For a business, you will need the name of the company and the owners. When a corporation is involved, be sure to gets its full name and address. You also need the name and address of an officer or some other person that legally can be notified of a lawsuit. You may get this information about corporations that do business in California from the Business Programs Division, Secretary of State, 1500 11th Street, 3rd Floor, P.O. Box 944260 Sacramento California 94244-2600. Or call the division at area code 916-657-5448.

If the case involves a car accident, it is very important to get the full name and address of both the registered owner and the driver - if they are not the same person. You also can ask for the name of the car's legal owner.

* The facts of the dispute. You must know exactly how much money you are claiming, the reason why you are claiming the money, and the date and place that the dispute got started.

Step 2: Pay the filing fee.

If you cannot afford this fee or any other costs involved, you might not have to pay. Ask the clerk for a "fee waiver form".

Step 3: Notify the defendant.

You must arrange to have a copy of the claim of plaintiff "served" or delivered to each defendant you are suing. The law says that any person who is 18 or older and who is not involved in the case may deliver the notice.

There are four ways in which you can notify the defendant. You can arrange to have someone from the sheriff's, marshal's or constable's office serve the notice. Although it costs more, you can hire a "process server" to make the delivery. The court clerk can send the notice for you by certified mail for a small fee for each defendant. Or, a friend can act as a process server for you.

If you win the case, you may be able to get back the cost of serving the claim of plaintiff.

If you use a process server or a friend, be sure the person completes and signs the form saying that the notice was delivered to the defendant. This notice is called "proof of service". The person also must return the form to the small claims clerk's office. A friend also must understand that the claim of plaintiff must be served personally on the person being sued; it cannot be left on a doorstep or stuffed into a mailbox.

Defendants must receive the claim of plaintiff at least 10 days before the hearing, if they live in the county where it will be held. If they live outside the county, they must receive it at least 15 days before the hearing. Otherwise, unless a defendant chooses to show up and say "let's go ahead anyway", the judge must delay the hearing for at least 15 days.

In some cases, you may be able to use "substituted service". This means that someone other than the defendant can receive the notice that you are suing. See your small claims advisor to find out if you can, or should, use substituted service.

Next, what if you have a claim against the person who is suing you?

First, you must demand that the person pay you the exact amount that you believe you are owed. If you do not receive the money, you may file a claim of defendant against the plaintiff. This is a paper that says how much the other person owes you and why.

You can get the form from the small claims clerk. Do this well before the hearing date because, in most cases, the person suing you must receive the form at least five days before the hearing.

You must serve the claim of defendant the same way that a claim of plaintiff is served.

Next, what should you do before going to court?

Try not to be nervous. Keep in mind that the judge - or mediator, in some cases - is experienced in settling disputes and will try to come to a fair decision.

If you think you will have trouble remembering all the facts or talking to the judge, write down a list of the important points so you won't forget anything. Or, have someone write the list for you. Then, rehearse what you want to say in front of a friend, a family member or a mirror. If necessary, you may read your remarks to the judge. But do not plan to make a long statement.

You also may ask the small claims court advisor to help you prep are for the hearing.

Next, what should you bring to court with you?

Be sure to bring the original copies of all the papers that you need to prove your case. For example, bring any letter, contract, rental agreement, deed, canceled check, repair bill, I.O.U., written damage estimate, diagram, drawing or photograph that will help your case. You also should bring two photocopies of every original. You may be asked to give one copy to the person you are suing and one to the court. Depending on the reason you are going to court, you might even bring the shirt that a dry cleaner ruined or the blender that does not work.

If you have any witnesses, you must bring them to court with you. The judge generally will not consider what a witness has to say unless the person says it in court. But, if your witnesses cannot appear in court, bring signed statements or "declarations" just in case the judge allows them. If possible, have the statements notarized.

If a witness refuses to attend, the court can issue a "subpoena" - an official paper ordering the person to come to court. The small claims clerk can tell you how to do this. If you subpoena a witness, you must be prepared to pay that person a set fee each day plus a certain amount per mile to and from the court. Be sure to ask the judge at the hearing to add these costs to the judgment.

Make a brief statement of the facts, covering the important points. Answer the judge's questions carefully. Do not insult or argue with the other party, no matter how angry you get.

Sometimes the judge announces the decision at the end of the hearing. But often the case will be taken under "submission", which gives the judge time to review the law carefully. In this case, you will receive the judge's decision in writing in about two weeks.

Next, what happens if you do not show up for the hearing?

If you are the defendant and cannot go to court at the time of the hearing, write the small claims court as soon as possible. Ask if you can get the date changed.

Otherwise, if you are properly notified about the hearing and do not show up, the judge is likely to order a "default judgment" against you. This means the court - after hearing evidence from the other side - has decided against you.

If you are the plaintiff and you do not show up, the judge may dismiss your case or decide in favor of the defendant.

In either case, to get a second chance to tell your side of the story, there must be a very good reason why you did not attend the hearing. If you think the judge will accept your reason, file a motion to "vacate the judgment". You must do this within 20 days of the date that the clerk mailed you the notice of the court's decision. The clerk will give you the forms to fill out. If you do not file this motion, you will not be allowed to appeal the decision to a higher court either.

Next, if you lose, can you take the case to a higher court?

Only defendants can" appeal" or ask a higher court to hear the case. So, if you are the plaintiff, you cannot appeal - unless the defendant files a claim of defendant against you, and you lose this case.

If you believe that the judge has made a "clerical error", be sure to tell the small claims court clerk. For example, the amounts due you may have been added incorrectly.

You must file an appeal with the clerk in municipal or justice court within 30 days after the notice of the decision of mailed. You also must pay certain fees. The superior court then will hear your case all over again. In this court, both you and the plaintiff may have lawyers to represent you.

A word of caution: if you Lose an appeal in a higher court, you may be order to pay the judgment plus interest, costs involved and the plaintiff's attorney's fees up to $150. You may even have to pay up to $1,000 in attorney's fees if the judge decides your appeal had no real basis and was not brought in good faith.

Next, what if the judge decides against you but you have a problem paying?

You can ask the judge if you can make installment payments. Otherwise, the sheriff can take your wages or other property in order to pay the money you owe. You cannot be sent to jail, though, for failing to pay a debt.

Next, how do you collect your money?

The small claims court cannot collect your money for you, but the clerk or small claims advisor can tell you about some ways to do this yourself.

For example, you may be able to have the defendant's wages "garnished". This means that the person's employer gives you part of the defendant's wages each pay day until the debt is paid. To collect your money this way, you must find out where the person works; be sure to get the name of the company and its full address, including the county. Then, ask the small claims court clerk for a writ of execution and fill it out. When the court issues this writ, the sheriff or marshal will deliver it to the debtor's employer.

If you know where the defendant banks, the small claims clerk can issue a writ of execution that the sheriff or marshal takes to the bank. You need to know the name of the bank, the full branch address and the county. The bank will pay you what is owed, if there is enough money in the account.

A writ of execution can be used to "attach" or take certain kinds of personal property, such as stocks, bonds and the contents of a safe deposit box. After this property is collected, it can be sold in order to pay the money that you are owed.

Not all personal property can be taken. The defendant can file a claim of exemption to protect the "necessities of life", possibly including a house, furniture, clothes and some wages.

The cost of a writ of execution - as well as the amount mat the sheriff or marshal charges to deliver the writ - can be added to the amount that the defendant owes you. You also are entitled to interest during the time it takes to collect.

If you do not have the information you need to collect your money, you can make the defendant come to court and answer your questions about wages, the employer's location, bank account, personal property and real estate. Contact the small claims advisor for information about how to schedule this hearing.

Remember: the judgment is good for 10 years, and you can renew it if you still have not collected the amount you are owed. But, in many cases, the longer you wait, the harder it is to collect the money.

The purpose of this message is to provide general information on the law, which is subject to change. If you have a specific legal problem, you may want to consult a lawyer. For more information about small claims court, please visit the California Courts Self-Help Center at www.courtinfo.ca.gov.

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