Before you file a small claims suit, consider the importance of the matter in dispute and compare it to the time, effort and expense required to assert your claim. You should also consider the probable chances of winning your lawsuit since you must prove that the person or business you are suing owes you something.
Make sure that you have some proof of the debt such as a receipt, note, bill of sale, warranty or a witness. If at all possible, try to settle your dispute out of court. When a reasonable agreement can't be reached, a claim may be filed. First you must determine where to file your claim and then you need to fill out the necessary forms.
Assistance from Clerk of Court
The clerk of the magistrate court can help you complete the necessary forms but can't give any legal advice, such as whom to sue or whether or not you will win.
Where to File
A small claims case begins when a plaintiff files a statement of claim with the clerk of court in the magistrate court in the county where the defendant lives. Claims against defendants residing outside of Georgia are usually filed in the state where the defendant is located.
If you're suing a business, the type of business determines where you should file your claim. For a sole proprietorship, the suit should be filed in the county in which the owner of the business resides. For a partnership, the suit should be filed in the county in which at least one of the owners resides. For a corporation, the suit should be filed in the county where the corporation has designated its registered office with the Secretary of State's Office.
If you don't know the whereabouts or the physical address of the defendant, you may want to use a third party investigational service to get more information.
Statement of Claim
You can get a statement of claim form from the clerk of the court. The information required on the form is:
- The name and address of the defendant
- The reason for filing the complaint
- The amount of money being disputed
Correct names and addresses are vital to your case because the court can't grant a judgment against a defendant who is improperly named in the claim. Therefore, you must find out before you go to court the name and address of the person or business your claim is against.
At the time of filing, the plaintiff must pay a filing fee, which includes the charge to serve one defendant. This fee varies by county and can range from approximately $45 to $55. An extra charge for service for any additional defendants usually ranges from $25 to $35 per defendant.
At the time the claim is filed, the clerk will issue a summons ordering the defendant to appear in court. The summons and claim must be served on (delivered to) the defendant. This is called "service of process."
Service of Process
After the claim has been filed, the magistrate court will notify the defendant with a copy of the claim and a summons to appear in court. Once the defendant has been served, proof of service must be filed with the court.
The defendant must answer the claim within 30 days to avoid default. If the defendant fails to answer within this time, the plaintiff can ask the judge for a default judgment.
The court will set a hearing date after the defendant files an answer. The hearing date will usually be 15 to 30 days after the date the answer was filed. The court will notify both parties of the date, time and location of the hearing.
The defendant may file a counterclaim against the plaintiff as long as the counterclaim is related to the plaintiff's original charge and the defendant's claims are also less than $15,000. If the defendant makes such a claim, it must be stated in the answer that is filed. A copy of the answer will be mailed to the plaintiff.
The plaintiff doesn't have to answer a counterclaim until the actual court hearing. If the defendant's counterclaim is for more than $15,000, the case may be transferred to a higher court.
Counterclaims are usually heard at the same time as the plaintiff's claims. If the judge rules in the defendant's favor on a counterclaim, the defendant may collect damages from the plaintiff.
Questions for Your Attorney
- What is "service" and how is it done?
- Can an attorney assist me with filling out my claim forms?
- What should I do if I can't make the court date?
Related Resources on Lawyers.comsm
- Start the process with our Georgia Small Claims Worksheet
- Next in the Small Claims series: Small Claims Trials in Georgia
- Success in Small Claims Court
- Small Claims Court Terms
- Defending a Small Claims Case