Do you want to evict a tenant who stopped paying rent, or get some personal property that rightfully belongs to you? These are just a couple of examples of the types of claims or disputes that are resolved by the North Carolina small claims or "magistrate" courts. And, now that you've decided to file a small claims lawsuit, you need to know the mechanics of what to do and how to do it. In general, you have to know exactly who you're suing, have the right paperwork, and file the suit in the right court.
Where to File
In North Carolina, small claims cases are handled by a special part or "division" of the district courts. However, you actually file the lawsuit with the clerk of the superior court for the county where the defendant lives. Each county in North Carolina has a superior court and at least one district court, and usually both courts are in the same courthouse.
If there's a written contract involved in your suit, like a lease or a sales agreement, it may say where exactly any suit must be filed. If you're suing a business, you may file suit in any county where it does business. If you're suing more than one defendant, you can file suit against all them in the county where one of them lives. For example, if one defendant lives in your county but two others don't, you may file suit against all the defendants in your county.
If you don't file the lawsuit in the right district court, the defendant can ask the court to move the case to the proper court, or even that your 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.
Complaint and Summons
Lawsuits begin when the plaintiff, the person who's suing, files a "complaint." In the North Carolina claims courts, there's a special "Complaint" form. It's a fairly simple and straightforward form, but if you need help completing it, the court clerk may offer some assistance, but don't expect legal advice about your suit. The Summons" tells the defendant when and where he must "appear" for trial. The court clerk fills in most of this form.
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 turned over 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 check the "assumed names" records in the office of the Register of Deeds in any county where it does business, or the local Better Business Bureau (BBB) to get the legal names and addresses for the business and its owner
- A corporation, you can get its exact name and address from North Carolina's Secretary of State. 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 Secretary of State can help you get that information for some partnerships, and the Register of Deeds and BBB may be of help, too
When you file these forms, the court clerk will schedule a trial date, which normally will be about 30 days after you file. In North Carolina, you can file your papers in person or by mail.
At the time you file your forms, you will need to pay your filing fees. In North Carolina, the fees vary from court to court, but you can expect to pay between $70 and $80, plus an additional $15 for each defendant if you sue more than person. These fees can change at any time, so be sure to ask the superior court clerk about the fee.
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 and Summons you filed. You're responsible for making sure that the defendant is served. When you file your papers, the clerk will give you detailed instructions on how to do this. Generally, you need to pay to have the clerk mail it to the defendant by certified mail, return receipt requested. Or, you may pay the local sheriff to hand-deliver the papers to the defendant.
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 you or return the property you sued for. If you agree to a settlement before trial, it should be in writing and signed by both you and the defendant. Also, you should contact the court clerk immediately so that you case can be cleared from the court's schedule
- Answer the suit. This is where the defendant either gives the court a written and signed statement explaining why you shouldn't win the case, or he shows up at trial and explains himself in person
- Default. If the defendant doesn't show up for trial, he "defaults", and you may win 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. It can't be for more than $5,000, and the defendant has to file it with the clerk and get a copy to you before the scheduled trial date
- 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 me to represent me in a small claims case?
- The defendant I sued in small claims court said that I filed suit in the wrong district and the case was moved to another court. Do I have to file another Complaint and Summons and pay another filing fee?