Do you have a customer who refuses to pay you for the repairs you made to her car? Or maybe the roofer you paid didn't finish the work? These are some examples of the types of claims or disputes that are resolved by the New Mexico small claims courts, or "magistrate courts."
And, now that you've decided that you have to file a lawsuit to get your money, or have your property returned, you need to know the mechanics of what to do and how to do it. In general, you have to have to know exactly who you're suing, have the right paperwork, and file the suit in the right court.
Where to File
You (the "plaintiff") file a small claims case with the clerk of the appropriate:
- Magistrate court, or
- Metropolitan court, or "Metro Court," such as the Bernalillo County Metro Court, which includes the Albuquerque area
Generally, you file the case in the court that serves the area or county where:
- The person you're suing lives (he's called the "defendant"), or
- You live, or
- Where you can "find" the defendant, such as the county where he works, or
- Where the incident you're suing over happened, which is called where your "cause of action arose." For example, if you're suing to get money for personal injuries you suffered in a car accident with the defendant, you may file in the court for the area where the accident happened
For the most part, small claims cases are filed in magistrate courts: There are 54 of them, and each of the state's county is served by one. However, in densely populated areas, you may need to file in a metro court. You should check the telephone listings or with the local courthouse to see which type of court serves the area where you need to file the lawsuit.
If you don't file the lawsuit in the right court, the defendant can ask the court to move the case to the proper court or even ask that the case be dismissed or "thrown out" of court. This can slow things down for you. So, if you're unsure about where to file your suit, contact the clerk's office for your area for some help.
Civil Complaint and Summons
Lawsuits begin when the plaintiff files a "complaint." In the New Mexico small claims courts, there's a special form called the "Civil Complaint." The form provides space for you to explain why you're suing and what you want - how money or what specific property you want, for example. If you need help completing it, the clerk can offer some assistance, but don't expect legal advice about your lawsuit.
Generally, the Summons tells the defendant that he has 20 days to file an "Answer" to your complaint, that is, either agree that he owes you or challenge your suit. An Answer form will be sent to the defendant along with the Complaint and Summons. The court clerk will schedule a trial after the defendant files an Answer.
When filling out the Complaint, you need to give information about your case in a clear and simple way. Print neatly and just give the facts about your claim. Specifically, you'll need to give:
- Your name, address and a telephone number where you can be contacted during the day
- The defendant's name and address
- The amount of money you want the defendant to pay, or a description of the property you want returned to you
- Reasons why the defendant owes you money, or why the property rightfully belongs to you
It's very important that you have the proper name and address of the party you're suing. If you're suing:
- A business that's not a corporation, like a sole proprietorship or a "dba" (meaning "doing business as"), you should contact the business or occupational license agency in the city or county where the business is located to get the legal names and addresses for the business and its owner. The local Better Business Bureau (BBB) may be help, too
- A corporation, you can get its exact name and address from New Mexico's Public Regulation Commission (PRC). You'll also find the name of the company's "registered agent," the person who accepts important documents for the corporation
- A partnership, you should list the name of the partnership as well as the individual partners as defendants. Again the PRC or local business or occupational license agency or BBB should be able to help you get that information
At the time you file your forms, you will need to pay your filing fees. In New Mexico, the fees vary from court to court, but you can expect to pay between $60 and $90 to file the lawsuit. Check with the clerk of the magistrate or metropolitan court for the current filing fee amount.
Generally, if you win your case, the small claims court will order the defendant to pay your filing fee (called "court costs"). This will be in addition to any other money or "damages" the court awards you on your claim.
Service of Process
"Service of process" is when one party gives the other party notice that he's being sued. Generally, this is done by making sure that the defendant gets a copy of the Complaint you filed and the Summons. You're responsible for making sure that the defendant is served. When you file your Claim, the clerk will give you detailed instructions on how to do this. Generally, however, you can pay the clerk to have the papers mailed to the defendant, or you can pay the local sheriff to do it.
Make sure you have the right name and address! If the defendant isn't served properly your case can't go forward, and it may be dismissed, or "thrown out" of court, and you'll then have to start all over again. If you're suing a corporation, you need to serve its "registered agent." She's the person named by the corporation who's responsible for accepting important documents and papers on behalf of or for the corporation. If you're suing a sole proprietorship, you need to serve the business's owner or its registered agent, if it has one. If you're suing a partnership, you need to serve its general or managing partner.
Once you've filed suit, the defendant can do any number of things, such as :
- Settle the claim, that is, simply agree with you and pay what he owes or return your property. If you agree to a settlement before trial, you should contact the court clerk immediately so that a "Stipulated Judgment" can be filed and your case can be cleared from the court's schedule
- Answer the suit. This is where the defendant gives the court a written statement that sets out in clear and simple language why you shouldn't win the case. It has to be filed with the court within 20 days after he receives your Compliant and Summons, and he has to make sure that you get a copy of it before trial
- Default. If the defendant doesn't file an Answer within 20 days or if he doesn't show up for trial on the date scheduled after he filed an Answer, he "defaults," and you may automatically win, so long as you can show the magistrate that he was properly served with your Complaint and Summons and that your claim against him is valid
- Counterclaim, or file a claim against you. The defendant has to file it with his Answer
- Ask for a continuance, which postpones the trial to another day. The request has to be writing and there must be a good reason for it, such as illness
Questions for Your Attorney
- I filed a small claims suit against a dog owner, who lives on the next street over from me, because her dog bit me. She says that she never received my Complaint and Summons, but I know the papers were mailed to the right address. What can I do now?
- How much will you charge to represent me in small claims court?
- The defendant I sued in small claims court said that I filed suit in the wrong court and the case was moved to another court. Do I have to file another Complaint and Summons and pay another filing fee?