Should you file a small claims case?
Before you file a claim, you should contact the person or business you plan to sue and attempt to settle your dispute. This effort may save you time and money. In some instances, it costs as much or more than the actual claim to file and seek collections. You should also find out if the person or business you plan to sue has any money or assets to pay your claims, if you should win. Otherwise, you may have a difficult time collecting on a court judgment. Remember, it is up to you, not the court, to take further legal action against the person or business if they do not pay the judgment. This process can be handled through the mail; you only have to come to the courthouse when or if the case is set for a hearing.
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Who can use Small Claims Court?
An individual who has reached the age of 19, a partnership, or a corporation may file a claim, with or without an attorney. If a partnership files without an attorney, the person representing the partnership must be a partner or employee of the partnership. If a corporation files without an attorney, the person representing the corporation must be an officer or full-time employee of the corporation.
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How do you file a Small Claims Case?
You or your attorney should go to the Small Claims Division of the District Court in the county where the person or business you wish to sue lives or has an office, and file a Statement of Claim (Complaint) form.Statement of Claim (Complaint - General) This form is available in the Clerk's Office. By law, the Court Clerk cannot give you legal advice nor can they assist you in filling out forms (you, an individual or an attorney of your choice may do this). If you are physically unable to fill them out yourself, this office will gladly make reasonable accommodations in order to help you complete the necessary paperwork.
Once you complete the complaint, you become the "plaintiff" in the case and the person you are suing is the "defendant". The information that you must have in order to complete the case is the defendant's correct and complete address and/or their place of employment. You must pay a filing fee at the time the claim is filed. Filing fees are non-refundable. NO PERSONAL CHECKS. If you can't afford to prepay this fee, you can fill out an Affidavit of Substantial Hardship form and ask the judge to delay payment and the costs will be taxed at the conclusion of the case. You may attain this form from the Court Clerk or download it here Affidavit of Substantial Hardship. The cost of filing the case is as follows and is broken down into a fee description according to the amount of the claim (amount of monetary damages you are seeking or claiming) and the fee charged at the time the case is filed. The fees for filing a claim with more than one defendant, additional fees or services will be added to what the defendant owes if you (the plaintiff) wins the case. Otherwise, you (the plaintiff) will be responsible for those fees accumulated over the course of the claim. Pleadings issued for service by certified mail on an individual must be made by restricted delivery ($10.04 for one ounce and $0.17 for each additional ounce).
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Common questions and answers regarding court cost increases
CERTIFIED MAIL - When requesting service wherein the address provided is a post office box, or is out of state, the papers may be served by certified mail. You should prepare an envelope, green card, and green and white sticker. Be sure that the Clerk's address is the return address, to-wit: CIRCUIT CLERK, 65 N. Alabama Ave. Room 220 Monroeville, Al 36460. You must affix the proper postage onto the prepared envelope. Certified mail fee at this time is as follows: Restricted Delivery, $10.04, however, you must be sure that you allow for additional weight, which is $0.17 per additional ounce.
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What happens after the claim is filed?
Once the forms are completed, this office will process the complaint and assign your case a number (You should use this number whenever you contact the court concerning your case). It normally takes 1 to 2 weeks to process the small claims case. After it is processed in our office, it is then sent to the Sheriff's Department for service on the defendant(s) or issued by Certified Mail whichever process you stated. Once served with a Statement of Claim, the defendant has 14 days to complete the Answer form and to file it with the Clerk's Office. We will notify you of the service date by mail with a computer print-out. Please do not call for service date (We do not check service by phone.) If the defendant files an answer, the case will be set for trial in 6 - 8 weeks from the receipt of the answer. You should have sufficient time or notification of the trial in order to subpoena any witnesses and otherwise prepare your case for trial. If you have a conflict with the trial date, you will need to call the judge (Phone Directory) your case is assigned to for a continuance.
If the defendant fails to file an answer, the plaintiff can take a judgment by default by filling out a default request and affidavit form. This form is available here Application, Affidavit and Entry of Default Judgement. Please note that this form must be notarized.
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If you are the defendant, what should you do after the claim has been filed?
You may choose to settle with the plaintiff before the date the claim is set for trial. If you do settle, then the claim may be dismissed, with no judgment entered against you. If you choose not to settle or you are unable to settle, you must answer the Complaint within 14 calendar days after being served, admitting or denying all or part of the claim. Remember, your answer must be filed within 14 calendar days or a default judgment may be entered against you. The Answer form is available for download here Defendant's Answer. As the defendant, you may also choose to file a Counterclaim Defendant's Answer (Counterclaim) , which is a claim that you have against the plaintiff.
All parties to a small claims case are encouraged to try and reach a settlement agreement prior to trial.
All settlement agreements should be in writing and should state who is to pay the court costs. If the defendant does not agree to pay the court costs as part of the settlement,the plaintiff will be responsible.
If a settlement agreement is reached before the trial, the plaintiff must immediately notify the clerk so that the trial can be cancelled.
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What should both sides do to prepare for the trial?
If an agreement cannot be reached, both the plaintiff and defendant should get together all papers, receipts, bills, sales tickets, estimates, photographs, etc., having to do with the claim. These are to be brought to court the date of the trial.
You should write down the details and facts of the case to assist you in telling your side of the story at the trial.
As the plaintiff or defendant, you may bring any witnesses you feel can help explain your case. If there is any reason to believe a witness will not voluntarily appear, you may ask the clerk to issue a Witness Subpoena requiring that person to appear. This form is available for download Order to Appear(Subpoena) and Subpoena Request Form. You will be required to pay a witness subpoena fee. You will need to make sure you allow at least two weeks for service of your subpoena prior to trial date, especially if your witness is located in another county.
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What happens at the trial?
BE ON TIME. If you are late, the judge may dismiss your case (if you are the plaintiff) or he may enter a default judgment against you (if you are the defendant). If something comes up which would prevent you from being on time or appearing at the trial, you MUST inform the judge your case is assigned to as soon as possible and request a continuance (delay) of the trial.
A trial in Small Claims Court is an informal hearing before a judge. There is no jury. When the case is called, the plaintiff will present his/her evidence and his/her witnesses. The defendant will then present his/her evidence, and call his/her witnesses.
After hearing both sides of the case and looking at the evidence, the judge will make a decision and render a judgment based on the law and the facts presented. A copy of the judgment will be mailed to each party or their attorney.
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What can you do if you disagree with the court's judgment?
If either of you (plaintiff or defendant) disagrees with the decision, you may appeal the case by filing a NOTICE OF APPEAL form with the clerk of Small Claims Court within 14 calendar days after the date of judgment. This form is available here Notice of Appeal. The Clerk's Office also has this form.
The appeal will be heard in the Circuit Court. The party filing the appeal must be prepared to pay a filing fee of $220.50 for a non-jury trial or $320.50 for a jury trial and post a bond to cover any unpaid court costs. You may need the assistance of an attorney if you choose to appeal because the simplified procedures of Small Claims court do not apply in Circuit Court.
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If you, the plaintiff, wins, how do you collect the judgment?
If the defendant does not pay the judgment (after the appeal time has run 14 days), it is up to you and not the court to take one of the following actions to collect your judgment: Forms for the following are available in the clerk's office.
- Garnishment of Wages - It must meet state and federal requirements in order to collect using this method. Must have name and address of Defendant's employer.Process of Garnishment
- Garnishment of Bank Account - Must know of the defendant's bank and bank address.
- Execution for Levy on Property - Obtain a court order authorizing the sheriff to pick up any property belonging to the defendant and sell it to satisfy the judgment. The property levied cannot be under a recorded mortgage (plaintiff can check with the probate court for recordings).Writ of Execution
It is important to mention, you cannot garnishee a retirement check, disability check, welfare, child assistance, unemployment, or social security check. All of the above actions require an additional filing fee. (SEE FEES) The clerk has the necessary forms and sometimes the method of collection may become involved, you may wish to have an attorney explain the procedure and assist you in filing the appropriate forms. Again the court clerk cannot give you legal advice. The court has no way of collection outside of the above mentioned methods and judgments are good for up to ten years. It is important to mention, it is easier to get a judgment than it is to collect on it. A judgment is not a guarantee of collection.
The plaintiff can request a certificate of judgment and have it recorded in the county probate court. It will then go on record and must be satisfied before the defendant can borrow money or sell property.