CIVIL DIVISION & SMALL CLAIMS
What is Small Claims Court/May I file a lawsuit in Small Claims Court?
The Civil Division is designed to allow collection agencies, a collection agent, a firm, an association, a corporation or an individual being represented by an attorney, to file a claim to settle certain disputes that are not in excess of $25,000.00. These may include recovery for damages to personal property, money owed, or for delivery of personal property. Suits involving contracts, security deposits and warranties are also common. A civil lawsuit usually deals with private rights of individuals, groups or businesses. Any claim in excess of $25,000.00 must be filed in Circuit Court.
An example of a civil lawsuit is a collection agency suing an individual for a medical debt or a credit card company suing an individual for a past due bill.
SMALL CLAIMS DIVISION
A civil action is commenced by a plaintiff bringing a written complaint to the Clerk. This is known as “filing” the suit. A blank complaint form is provided by the Court to ensure that the specified information is contained in the complaint. The Clerk must file mark the complaint, which will note the date and precise time of filing, which establishes venue. The complaint must include the following information to serve its legal purpose:
The names and current addresses of the plaintiff and the defendant;
The amount of money claimed or a description of the property to be recovered;
A brief description of why the plaintiff believes the defendant owes the amount of money or property claimed;
Additional documents can be attached to the complaint form if the plaintiff deems it necessary. Once the complaint is accepted by the Clerk and filed by the court, the Clerk will issue a summons and cause it to be delivered for service. The summons will inform the defendant that an action has been filed against him/her.
Serving the Lawsuit
An action is not commenced unless the defendant is served with the claim form which must be done within one hundred twenty (120) days of filing. The plaintiff may elect to have the summons served on the defendant by certified mail/restricted delivery, by the sheriff's office or private process server. Each defendant must be served, otherwise, the Court does not obtain jurisdiction over the defendant. A copy of an answer and affirmative relief form is provided by the Court and included with the claim form for service. The complaint, summons and answer form shall all be served together. The Court must have proof of service showing the date of service before proceeding with any further actions.
Additional Information about serving the lawsuit
1. Sheriff - The fee is set by the Sheriff's Office. The plaintiff pays the Sheriff directly unless the Court has made other arrangements. (The Cleburne County Sheriff charges $50.00 per person to be served and only serves residents of Cleburne County)
2. Private Process Server- A list of individuals who may serve papers is available at the Clerk's Office. The private process server fees vary and are paid directly to the process server.
3. Certified Mail, return receipt, restricted delivery through the U.S. Post Office- The fee is approximately $12.00 per mailing. The defendant must sign and pickup the certified mail/restricted delivery in order for service to be perfected.
**If the complaint is filed in the Small Claims Division, the Clerk will prepare the service copies to be delivered to the Sheriff's Office, or provide you with the action to have served by process server or certified mail. If the complaint is filed in the Civil Division, the plaintiff is responsible for delivering the complaint and summons to whichever entity they choose to use for service.
Responding to a Lawsuit, the Answer
The defendant has thirty (30) days to answer the complaint. The defendant can answer the complaint as follows:
-I admit everything in the Complaint and Civil Summons and do not want a trial.
-I admit that I am responsible, but not for the total amount claimed by the plaintiff(s) and request a trial.
-I deny that I am responsible at all and request a trial.
*The defendant is required to mail a copy of the answer to the plaintiff and to the Court. If the defendant admits everything, he may wish to contact the plaintiff to make arrangements to satisfy the debt. When a trial is requested, the Clerk usually sets a trial date within thirty (30) to forty-five (45) days. The clerk mails notice to the address provided.
Filing a Counterclaim
A counterclaim is a claim presented by a defendant against the plaintiff for a claim. Counter claims are permitted and can be filed at the discretion of the defendant.
If You are the Defendant
If you have been named as a defendant in a civil or small claims action and have received a summons and complaint, this means that you are being sued. If you don’t know why you are being sued, contact the plaintiff and ask for an explanation.
Never ignore a summons or notice to appear in court even if you think the case is wrong, unfair, or has no basis. If you do not appear in court at the proper time and date, the court may still hear and decide the case without you and you may lose the suit by default.
Hearings and Trials
Once the complaint has been served, the Court may set a hearing or trial to hear evidence. It is extremely important that you bring with you to trial all witnesses, documents, contracts, letters, pictures, bills or evidence necessary to prove your claim or defense. If you fail to do this, the case may be decided against you. If you need the testimony of a witness who will not attend trial voluntarily, you should ask the Court, no later than ten (10) days before the trial date, to issue a subpoena requiring that person to attend. Subpoena requests must be submitted to the Court in writing and must include sufficient information for the subpoena to be served. It is your responsibility to have the subpoena served and to pay the filing and service fees in order to do so.
The various types of hearings are listed below:
Trial- A trial is scheduled when the defendant answers the complaint and denies part or all of the allegations set forth in the complaint. The plaintiff and defendant will bring all evidence and witnesses to court and the judge will hear the case and enter a judgment based upon the evidence.
Default Hearing - If the defendant fails to answer the complaint, the plaintiff can request a hearing. The defendant is notified of the hearing; however, the defendant may not be allowed to enter any evidence in the case because they failed to file an answer as required. The plaintiff will show their proof of debt to the judge and the judge will enter a judgment based upon the evidence.
Hearing - A hearing may be set so evidence and/or argument may be presented to determine some issue or fact of law. For instance, a hearing may be set to determine if a case should be dismissed based upon the motions filed by the defendant, or to determine if a party should be held in contempt for failing to follow an order of the Court.
Judgments, (types of ruling the Court may make)
A judgment is entered in a case once the defendant has been served and the judge has reviewed the merits of the case. If the plaintiff has met the burden of proof, the judge will issue one of many types of judgments.
Below is a list of some of the judgments that are commonly used in District Court:
Default Against the Defendant - A default judgment is entered when the defendant fails to answer the complaint within the specified time.
Judgment on the Pleadings - This type of judgment is entered when the defendant answers the complaint by admitting the debt is owed. A judgment on the pleadings may also be ordered when the defendant files an answer, but fails to appear at the hearing.
Consent Judgment - This type of judgment has been signed and agreed upon by both parties prior to submitting it to the Court. A consent judgment is only used in the civil division.
Judgment Against the Defendant - This judgment is entered against the defendant in open court when the plaintiff prevails on the case.
Judgment For the Defendant - This judgment is entered in open court when the plaintiff fails to prove their case. This type of judgment dismisses the case against the defendant.
Dismissal Without Prejudice - This is a dismissal of the case against the defendant which allows the case to be re-filed within one year.
Dismissal With Prejudice - When a dismissal with prejudice is entered, the case cannot be brought back before the Court.
Dismissal for Lack of Prosecution - If the plaintiff fails to appear for the hearing, the judge will dismiss the case for lack of prosecution.
Dismissal for Lack of Service - The plaintiff has one hundred twenty (120) days to serve the complaint (unless a motion for more time is granted). When the complaint is not served within the allotted time, the case is dismissed without prejudice.
Once the judge decides the type of judgment to be entered, the judge will then determine the monetary amount of the judgment. Judgments have a life span of ten (10) years. A Writ of Scire Facias may be filed, and if granted, the judgment will be revived and collectable for an additional ten (10) years.
What happens with a Judgment
If the Court rules in your favor and a judgment is entered, the Court does not collect the money for you. While a judgment carries legal weight, it may be difficult to collect. Collecting the judgment can be one of the most challenging aspects of any lawsuit.
Judgments are a matter of public record. District Court does not report to any credit reporting agency; however, these agencies come to the Court to retrieve judgment information to place on the losing party’s credit record.
You must wait ten (10) days from the date that the judgment is entered before trying to collect the judgment or before you can take any further action.
Schedule of Assets
Schedule of Assets, A responsibility of party who has a judgment against him/her.
If a monetary judgment is entered against the defendant, the following paragraph is included in the body of the judgment:
Furthermore , pursuant to Act 610 of 1991, the defendant must prepare a schedule, verified by affidavit, of all his property, both real and personal, including moneys, bank accounts, rights, credits and chooses in action held by himself or others for him and specify the particular property which he claims as exempt under the provisions of the law. The defendant’s schedule of exempt property must be filed with the clerk of the court within forty-five (45) days of entry of the final judgment order.
The schedule of property is used to assist the plaintiff in the collection of the judgment. If the defendant fails to file the schedule of property, the plaintiff may request a hearing to bring the defendant before the Court to show cause why he/she should not be held in contempt of court for failing to file the schedule of property.
After the judgment has been rendered, either party may file an appeal within thirty (30) days from the date of the entry of judgment. The District Clerk has a duty to prepare and certify such records when requested by the appellant. A transcript of judgment fee will be assessed for each case that is prepared for an appeal. The appellant has the responsibility to file the transcript of the record in the Circuit Clerk's Office. Please check with the Circuit Clerk’s Office for the appropriate filing fee.
Once the case is appealed, the case is tried “de novo”, which means Circuit Court will hear the case as if it was never heard in District Court. The prevailing party may continue to collect the judgment in District Court unless an appeal bond or a supersedeas bond has been posted.
The Collection Process
The prevailing party is required to wait ten (10) days from the date of judgment before commencing any collection activity on the judgment. If the judgment is not paid, the prevailing party may file the following to collect the judgment:
Writ of Garnishment - This is an attachment on the debtor’s bank, their wages or any other obligation owed to the judgment debtor. With this writ, an employer, bank, or anyone else owing the judgment debtor money is ordered to subtract a certain amount of the defendant’s paycheck until the judgment is paid. The maximum amount per paycheck is twenty-five percent (25%). After the Writ of Garnishment is filed, the bank or the debtor’s employer has thirty (30) days to file an answer. Failure by the bank or employer to answer could result in the judge entering a judgment against the bank or employer.
Writ of Execution - This writ advises the Sheriff to take property of the defendant (i.e. vehicle, TV, stereo, etc.) and sell these items at a public auction. The money from the sale goes first to satisfy the Sheriff’s costs of conducting the sale, and secondly to satisfy the judgment.
Lien on Real Property - The judgment can be turned into a lien against real estate that the debtor owns by recording a certified copy of the judgment in the Circuit Clerk’s Office of the county where the land is located.