Using Small Claims Court

Small Claims court is meant to be easy and cheap (and it is when compared to "regular" civil court). However, small claims court is not as simple and cheap as it could be.

An advantage of the small claims court is that you do not need a lawyer as lawyers cannot represent anyone in small claims court. It costs less to start a lawsuit, the process is streamlined, and your time in front of a judge or commissioner is usually just a few minutes. (Though you may wait an hour before seeing one.)

To start a small claims case, you pay the court a small fee, and usually pay to have the debtor served. That is usually all it costs. You don't have to dress up in small claims court unless you want to, but don't be a slob. Parking is often free at small claims courts. The forms are standard and easy to complete. Sometimes you can fill out the forms on your computer.

There are drawbacks to using a small claims court including a restriction on performing pre-trial legal actions such as discovery. There are limits on what kinds of situations you can sue on, and how much you can ask for.

A small claims judge can decide only monetary amounts and sometimes demand that property be returned to you. Also, if your small claims case is appealed by the debtor (they later ask the court to consider tossing out your judgment) the defendant can usually have a lawyer represent them in the appeals court.

If the amount the debtors owe is less than $300, don't sue them, at least not for the reason of getting your money back. It costs money to enforce a judgment - and the costs are not always recoverable.

If the amount the debtors owe is less than the money limit of the small claims court, use the small claims court.

If the amount the debtors owe is less than twice the money limit of the small claims court, use the small claims court. The reason is that civil court is more expensive, and if you need a lawyer, that costs a lot more. The costs are not always recoverable.

Small claims court is usually not available for evictions, or when the amount the debtor owes is too much, etc. In that case, to sue, you need to go to regular civil court.

Assuming Small Claims is the court for you, here are a few tips:

A) Have the defendant served by a registered process server, and personal service is best.

B) Take care to know who you are suing before you sue them. Do they use other names, can you find where they live, etc?

C) Do not start enforcement actions until the time limit to appeal the judgment ends. Sometimes, enforcing a judgment too soon may remind the debtor to appeal the judgment.

D) Be aware of the debtor's bankruptcy status. If you learn that the debtor has actually filed for bankruptcy protection, stop trying to enforce the judgment, at least until you know for sure their bankruptcy attempt failed.

Of course, winning your judgment is only the start of trying to collect your money. Contact the debtor by mail with a formal letter. Be polite and offer to work with the person on a payment plan or perhaps a settlement.

Settling may make sense as it saves you the costs, frustration, and delays of enforcement. Do not make any threats or harass the debtor in any way.

If you have time and patience, you can try to enforce the judgment yourself. Your court's web site, the Internet, articles, and other resources will give you ideas. You have to pay for every step, even if the step does not result in getting closer to getting your money back. To avoid the expense and hassle, find a judgment enforcer to recover your judgment.

If you wish to enforce it yourself, your tools are discovery (to find the debtor's assets), and garnishment or levy (where the sheriff attempts to take the debtor's assets).

To discover the debtor's assets, you can pay the court, pay a process server, and "compel" the debtor to appear in court and bring the documents you request.

You can also use the Internet - perhaps your debtor bragged about their new job on Facebook? Google your debtor. There are (too expensive?) web detective sites too. Sometimes public records such as past bankruptcies, property records, and such can give you clues.

Before you can grab a debtor's asset, you must know the details about the asset. For bank accounts, you need to know which bank the debtor uses. To garnish wages, you must know their employer.

To levy the debtor's assets, you pay for a Writ from the court, then pay the sheriff and sometimes a process server, to attach the debtor's bank or income source.

You can also record a lien on a debtor's current or future property, but that lien may or may not get you paid. If your first attempts to enforce your judgment fail, consider finding a judgment enforcer. No judgment enforcer can guarantee they can recover money from a debtor, but they only get paid for success, so they will try.

If you do collect enough money from the debtor to pay you what is owed, make sure to file a Satisfaction Of Judgment with the court.

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About the Author:
Mark D. Shapiro - Judgment Referral Expert - friend to all Judgment Enforcers and contingency collection attorneys: http://www.JudgmentBuy.com - where Judgments go to get Purchased or Enforced!