Small Claims Court
Before filing your claim, you should have some idea what your chances are of collecting. A judgment does not mean automatic payment. It simply means you have proven to the satisfaction of the court that the person you sued owes you money. There are often cases where a judgment is not particularly difficult to obtain but the collection of money is difficult if not impossible.
The party you have sued may be penniless or bankrupt; may have gone out of business or left town; may not earn enough for you to garnish wages; or for other reasons it may be impossible to make the defendant pay. Income such as welfare, unemployment, social security, etc. cannot be garnished. If you cannot collect, a judgment in your favor may turn out to be a hollow victory.
Who May File a Claim?
A party who sued another party is called the plaintiff. The party being sued is called the defendant. There can be more than one plaintiff or defendant in the same action. An example would be when a husband and wife sue another husband and wife.
The following has been prepared to help you determine if you are the proper person to file the claim.
You have knowledge or information about all the facts in the matter and you are: the plaintiff
- a partner
- a full-time employee of the plaintiff
The plaintiff can be:
- an individual
- a partnership
- a corporation
- a sole proprietor
IF YOU ARE NOT THE PLAINTIFF AND DO NOT HAVE DIRECT AND PERSONAL KNOWLEDGE OF THE FACTS IN THIS DISPUTE, YOU CANNOT COMPLETE THE FORM FOR THE PLAINTIFF.
Starting a Small Claims Suit
The most you can collect through Small Claims Division is $5,500.00 plus costs. The costs will be added by the magistrate or judge at the time of judgment. To file a claim in the 57th District Court, the business or person you are suing must do business or live in Allegan County, or the action must have occurred in Allegan County.
BEFORE COMING TO THE COURT TO FILL OUT AN AFFIDAVIT OF CLAIM, BE SURE YOU HAVE THE FOLLOWING:
- The filing fee plus service fee for certified mail. When filing by mail, send a check (Michigan banks only) or money order made payable to the 57th District Court. Mailing fees are subject to change due to postal increases.
- Defendant's full and correct name.
- Defendant's current address (route or post office box numbers are not enough when you want a process server to make personal service). If you furnish an incorrect address and the process server attempts service, he/she is allowed by law to charge you $l0.00 for his/her time.
- Amount of claim and pertinent dates.
- A concise statement as to the nature of the claim. You may use a second sheet if necessary. The RESPONSIBILITY IS YOURS to prove two things to the court: LIABILITY AND DAMAGES. LIABILITY - why the defendant is obligated or responsible to pay the money you claim. DAMAGES - the exact amount of money owed. Remember, it is your word against the defendant's. It is not the magistrate/judge's fault if he/she has to rule against you because you were not prepared to prove your case.
- At the time of the hearing, you should have copies of all papers to support your claim such as bills of sale, receipts, guarantees, accident reports, leases, promissory notes, repair estimates, photos, etc.
When your claim is filed, a hearing date is set within 30-40 days. This generally allows enough time for the defendant to receive the notice no later than the required seven days before the hearing date. This is done in one of two ways.
- A copy is left with him/her personally by a process server or any legally competent adult who is not a party to the suit. If you are not familiar with the laws governing service you may want to have an experienced process server serve your papers. THE COURT ASSUMES NO RESPONSIBILITY FOR SERVICE. You or the individual serving the papers must see that service is made according to law.
- The notice is mailed by certified mail with a return receipt requested. If certified mail is not picked up by the defendant you may want to have a process server try to make service after a new hearing date is scheduled. Unless the court has proof the defendant has received the notice, it cannot proceed with the case.
IMPORTANT: Once your claim has been filed, always have the case number with you when phoning or coming to the court.
Settlement Prior to Hearing Date
Often the defendant may want to settle out of court before the hearing date. If settlement is made before he/she is served with the summons, you are not entitled to your court costs. If settlement is made after he/she is served, you are entitled to add your court costs. If the claim is paid you should file a voluntary dismissal with the court.
On the date the trial is set, plan to arrive at the court a few minutes early. YOU MUST BRING ALL PAPERWORK, WITNESSES AND EVIDENCE TO PROVE YOUR CASE. NO ADJOURNMENT WILL BE GRANTED TO PERMIT YOU TO BRING THESE AT A LATER DATE.
One of several things may occur on the scheduled date:
- The defendant may appear, refuse to submit to the Small Claims Division and request that the case be transferred to the General Civil Division. This is his/her legal right. He/she must then file an answer in writing within 14 days of the transfer and a new date will be set.
- The defendant may appear, admit liability for your claim and a consent judgment will be entered.
- The defendant may fail to appear. If he/she has proper service and you can prove to the court you have a proper claim, a default judgment will be entered.
- The defendant may appear, disagree with the claim, agree to have it heard in Small Claims Division and the trial will be held.
If service has been made and, 1) neither the plaintiff nor the defendant appear, or 2) the defendant appears but the plaintiff does not, the claim will be dismissed by the court.
When your case is called, all parties and all witnesses will be sworn in. The hearing is an informal matter. Don't try to play attorney, just state your claim as simply as possible. If necessary, refer to the papers or evidence you have brought with you. If you furnished copies for the court file, the magistrate/judge can follow along.
The person you are suing will then have an pportunity to tell the magistrate/judge why he/she feels he/she does not owe you what you claim. After all testimony and evidence has been presented, the magistrate/judge will render a decision.
Collection of the Judgment
It is your responsibility to collect a judgment. Because you have a judgment, you have ways of collecting that you would not have otherwise. Two of these are:
Installment payments: The court encourages the parties to agree among themselves how a judgment is to be paid. If a lump sum payment is not possible, try to reach some agreement on installment payments.
Garnishment: If the defendant will not voluntarily pay the judgment and you know where money is owed to him/her, such as wages, bank accounts, rentals, etc. you may want to file a writ of garnishment to attach this money. A writ of garnishment may not be issued to enforce the judgment until the expiration of 21 days after it was entered. The garnishment is filed against the person or business having possession of the monies. They are referred to as the garnishee defendant. As mentioned previously, income such as welfare, unemployment, social security, etc., cannot be garnished.
Before filing a garnishment for personal wages, you must know where the defendant works; how often he/she is paid, and what day of the week he/she receives his/her check. This will help you decide when the garnishment should be filed and served on the garnishee defendant.
The garnishee defendant has seven days after service of the writ to let you, the court, and the principal defendant know if there are available monies. In the case of wages, you are not entitled to the defendant's entire paycheck; only a portion of it as determined by a federal formula. You may have to garnish several pay checks to satisfy a judgment if no other payments are made. As you are required to sign a sworn affidavit to the truth and correctness of the amount still owing, you must keep accurate records.
WHEN PAYMENT OR JUDGMENT IS COMPLETE, EITHER IN FULL OR TO YOUR SATISFACTION, YOU MUST FILE A SATISFACTION OF JUDGMENT WITH THE COURT.