Before you file a small claims suit, consider the time, effort and expense required to assert your claim. 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.
There are four steps involved in filing a small claim:
- The plaintiff files a complaint form with the court
- The plaintiff pays the filing fee
- The court issues a writ of summons to officially notify the defendant that a suit has been filed
- Proof is submitted to the court that the defendant has been notified or served
A case begins when a plaintiff files a complaint form with the clerk of court. The following information is required on the form:
- Your name, address and telephone number
- The correct name and address of the party you are suing
- A statement about why you are suing the defendant
- The amount of money you're seeking
If you're suing an individual, include the person's full name on the complaint form. An individual must be at least 18 years old to be named as a defendant. If the defendant is younger than 18 or is older than 18 but has a legal guardian, you may name the defendant's parent or guardian as the defendant.
If you're suing a partnership or sole proprietorship, name the owner as the defendant. If you are suing a company that isn't a partnership or sole proprietorship, you must list the full name of the business, the owner or registered agent's name and full address on the complaint form. To find the full, formal name, check with the State Department of Assessments and Taxation (SDAT).
You must pay certain court costs when you file a complaint. In addition to a filing fee, there are fees you must pay for delivery of the papers to each defendant. Your claim may request that the other party pay your court costs.
Notifying the Defendant
A trial can't be held until the defendant has been served with a summons and a copy of the complaint. The summons and complaint are sent to the defendant by certified mail, restricted delivery, return receipt requested, unless you ask the sheriff to deliver the papers or you wish to have the papers served by a private process server. A private process server is someone who is over 18 years old and not directly involved in the case.
You will be notified if the court or sheriff was unable to notify the defendant. You may renew the summons for an additional fee and attempt to serve the defendant again using a different address or method of service.
Proof of Notice
After the defendant has been served, the court must receive proof of service. If the court doesn't receive proof of service within the time allotted for the defendant to file an intention to defend, you may not be able to present your case on the trial date.
After the court receives proof of service, it will schedule a hearing.
You may dismiss your claim at any time before the defendant files a notice of intention to defend. This dismissal is without prejudice, which means you can file the claim again. If you dismiss your claim after a notice of intention to defend has been filed, you won't be able to file the same claim again.
Notice of Intention to Defend
A defendant has 15 days from the date of receipt of the summons to file a notice of intention to defend with the court. Out-of-state defendants and those with resident agents (persons designated, typically by businesses, to accept important notices or correspondence) have 60 days to file the notice. By filing the notice, the defendant is letting the court know that he or she plans to argue that the plaintiff is not entitled to the claimed damages.
When a defendant responds to a complaint by filing their own complaint, it is called a counterclaim. If you're the defendant, you may file a counterclaim if you believe the plaintiff owes you money. You should notify the clerk that you want a counterclaim form, which you must complete and file. Counterclaims are usually heard at the same time as the plaintiff's claims.
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?