Is your former landlord refusing to refund your security deposit or won't let you get some of your personal belongings that you left behind when the lease expired? Or maybe a customer stopped paying for goods that you sold to her on a credit account? These are some examples of the types of problems that are settled by the Virginia small claims courts.
And, now that you've realized that you need to file a lawsuit to get your money or property, 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 file a small claims case with the clerk of the appropriate district court. In Virginia, there's a district court for each county. Generally, you need to file your suit in the county where the defendant lives. Or, you can file in the county where the business deal took place or where your injury happened, such as where the car accident happened. If you're suing a business, you can sue in any county where the business is operating. If your suit is to recover personal property, you need to file in the county where the property is located.
If you don't file the lawsuit in the right district, the defendant can ask the court to move the case to the proper district, or even have the case thrown out of court (or "dismissed"). 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.
Lawsuits begin when the plaintiff, the person who's suing, files a "complaint." In the Virginia small claims courts, there's a special form called a "Civil Warrant." The court clerk can get you the proper form and instructions for completing it. If you need additional help, the clerk can give you some assistance, but he can't give you legal advice about your suit.
When filling out the form, you need to give information about 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 name and home address of the defendant, or at the very least, his work address
- The amount of money you want the defendant to pay, or a description of the personal property you want from the defendant
- Reasons why the defendant owes you money, or why you should get the personal property
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 look in the "assumed names" or "fictitious names" files in the clerk's office of your local circuit court to get the legal names and addresses for the business and its owner
- A corporation, you can get its exact name and address from Virginia's State Corporation Commission. You'll also find the name of the company's "registered agent," the person who accepts important documents for the corporation
- A partnership, or limited liability company (LLC), you should list the name of the partnership as well as the individual partners. Again the State Corporation Commission should be able to help you get their names and addresses
Use the right form! The Virginia small claims courts use different forms depending on your claim. You need to file a:
- Warrant in Debt, if you're suing the defendant for money
- Warrant in Detinue if you're suing to get some personal property returned to you
At the time you file your forms, you will need to pay your filing fees. In Virginia, the fees vary from court to court, but generally you can expect to pay between $20 and $50 to file a warrant. The district court clerk can tell you the current 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 warrant you filed. When you file the warrant, the court clerk will send the necessary papers to the sheriff of the county in which the defendant lives and a deputy sheriff will deliver them to (or "serve" them on) the defendant. You have to pay for service of process, and the clerk can tell you how much it costs. Instead of using the sheriff, you can pay for a private process server to deliver the warrant 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.
It's also a good idea to take one more step when you file a small claims lawsuit in Virginia. You should mail a copy of the warrant to the defendant at least 10 days before the trial date scheduled by the clerk. Also, complete a "Certificate of Mailing," and give it to the judge or court clerk on or before the trial date. If you don't do these things you may not be able to get a "default judgment," which is when a plaintiff automatically wins because the defendant didn't show up for trial.
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 either pay what he owes you or return your property. If you agree to a settlement before trial, you should notify the court immediately
- Answer the suit. This is where the defendant either tells the court in writing that he disagrees with your claim or he simply shows up for trial and explains why you shouldn't win
- Default. If the defendant doesn't show up for trial (or "defaults"), you automatically win, so long as he was properly served with notice and you can show the judge that your claim against the defendant was valid
- Ask that case be transferred (or "removed") out of the small claims court and into the regular district court. If the case is removed, more complex court rules apply and both parties can be represented by attorneys
- Counterclaim, or file a claim against you. The counterclaim can't be for more than $5,000, and the defendant has to pay the sheriff to deliver a copy of it to you before the trial date. If you need more time to prepare a defense to the counterclaim, you may ask for more time, which is called a continuance
- Ask for a continuance, which postponing the trial to another day. The request has to be in writing and there must be a good reason for it, such as illness
Questions for Your Attorney
- Why do you think the defendant removed my small claims case to the regular district court? How much will you charge to represent me in that court? Will he have to pay my attorney's fees?
- I was I injured in a car accident and I want to sue the other driver in small claims court, but I can't find him. Can you help me?
- 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 warrant pay another filing fee?
Related Resources on Lawyers.comsm
- Start the process with our Virginia Small Claims Worksheet
- Next in the Small Claims series: Small Claims Trials in Virginia
- Success in Small Claims Court
- Small Claims Court Terms
- Defending a Small Claims Case
- Visit our Small Claims Court Forum for more help.