GETTING YOUR DAY IN COURT THROUGH SMALL CLAIMS
I regularly receive phone calls from individuals who think they have been wronged by another person and want to retain an attorney. We may talk about facts surrounding their potential case, but then the question ultimately arises as to what is the amount of their damages. In many instances, the amount of damages that can be received is less than the amount of attorney fees and costs that will be incurred in pursuing the cause of action. It is at that point in the conversation when the concept of filing a small claims action comes into the equation.
Just about any cause of action that involves a dollar amount of less than $6,000 can be filed in small claims court. Many collection matters and most landlord/tenant cases get filed in the small claims arena. You do not need an attorney to file a small claims case since the purpose of the small claims jurisdiction is to provide an informal and inexpensive forum for the resolution of smaller legal disputes.
One of the major features of going through small claims court is that the formal rules of evidence do not apply and there is a limitation on the amount of pretrial procedures that will be involved. You can still subpoena a third party into court to testify at a hearing, but if you want to seek discovery from the other party or get information from a third party then you will need to get permission from the Court before going down that route. Written Indiana Rules For Small Claims do exist and you should at least be familiar with those rules if you are going into a small claims venue, but again, the major objective of small claims trials is to be informal and dispense speedy justice between disputing parties.
All that you need to do to commence a small claims action is to file a “Notice of Claim” in your local small claims court. Generally, you need to file the claim in the County where the transaction took place, where the debt was incurred or obligation was to be performed, or where the defendant lives or works. There is a filing fee that you must pay to the Clerk when you file the claim. If your claim is for a debt owed under an account, you will also need to sign and attach to your Notice of Claim an Affidavit of Debt setting out the amount claimed. A Notice of Claim form can be obtained from the Montgomery County Clerk’s Office.
When you file your Notice of Claim, you will be given a hearing date. You need to be prepared to present evidence to the Court on that date. In Montgomery County, small claims day is normally on the first Wednesday of the month in Montgomery Superior Court 2. Once you file the lawsuit, each defendant must be served with a copy of the Notice of Claim either by certified mail or by having the sheriff of the County deliver the notice. Due process requires that the defendant be served with a copy of the claim. You should also be aware that if you sue someone in small claims court, they have the right to bring a counter claim against you and defend against your claim. In addition, any party has a right to choose that they be represented by an attorney. It is not unusual for one party to be represented by an attorney and the other to be representing him or herself. . A party to a small claims action is also entitled to a jury trial, but such right is waived unless the jury trial is requested within 10 days of receipt of the Notice of Claim.
If a corporation is filing the claim and it involves more than $1,500.00, that corporation will need to hire an attorney to represent its interests. If the claim is less than $1,500.00, the corporation must still appoint in writing a full time employee of the corporation to appear on behalf of the corporation.
If you file a small claims action and a defendant fails to appear for the hearing you can ask that a default judgment be entered against that defendant. You must be able to show that the defendant was served with notice of the claim before a default is appropriate. If the other party shows up at the hearing, then you need to be prepared to present oral and/or written evidence to support your claim. A defendant has the right to present his or her own evidence defending against the claim.
If the small claims judge feels you have proven, by a preponderance of the evidence, that a defendant liable to you and that you are entitled to damages, the court will enter a judgment in your favor. If you are successful, you can also recover your courts costs. Attorney fees are only paid in limited circumstances and generally are not part of court costs.
After you have obtained your judgment, you will then need to file Proceedings Supplemental in order to enforce your judgment and collect on it. Once you file your Motion for Proceeding Supplemental, the judgment defendant is ordered to appear in court and answer questions under oath about his or her ability to pay the judgment. You can garnish a judgment defendant’s wages at that point in time if he/she is employed.
If you are going to pursue a matter on your own through small claims court, I highly recommend that you track down the “Small Claims Manual” produced by the Indiana Judicial Center. This manual is available through the Clerk’s Office, or you can find it online at in.gov/judiciary/center/files/small-claims-manual.pdf.
This article is published for information purposes only. It is not intended nor is it to be used as a substitute for independent legal advice.
Stu Weliever practices law with HENTHORN, HARRIS & WELIEVER, P.C., 122 E Main St, Crawfordsville, Indiana, and can be reached at (765) 362-4440 or at email@example.com.