Finding yourself at the wrong end of a lawsuit can be stressful. Whether you are sued for a relatively small amount in small claims court or a larger amount in circuit court, the experience is never pleasant.
If you are sued in small claims court, you will find that the system is designed for people who are not necessarily familiar with the court system or its procedures. Often, court rules are relaxed and courts assume the people involved in the lawsuit don’t know anything about how the court works. Cases are usually heard by a judge within 30 to 60 days and disputed amounts are usually not more than $10,000. In fact, in many states, lawyers are not allowed to be involved in small claims cases, making the court truly a “people’s court.”
For claims involving more money, a creditor would normally sue you in a civil court in your state, sometimes referred to as a circuit court.
Filing of a Lawsuit
Most court cases begin by the filing of a paper or pleading, typically referred to as the Complaint, Petition or Statement of Claim by the person beginning the lawsuit, usually called the Plaintiff or Complainant.
In the complaint, you will find the name of the person or agency who is suing you, your name, along with anyone else who may also be named as a responsible party, the date the lawsuit was filed in court, the name of the court, the reason you are being sued and what sort of relief the person suing you wants. The Plaintiff then files the pleading with the court, generally paying a filing fee.
Where the Lawsuit Will Be Filed
Most states have laws which specify where you can be sued. You will usually be sued either in the county where you live or the state where the problem occurred, if you have a substantial connection with that state. Some states only allow a person to be sued in the state where they live.
Service of Process
The court clerk will usually give the pleading a number and an original copy of the pleading must be served on, or given to, the person being sued, usually called the Defendant or Respondent.
A defendant to a lawsuit can receive a copy of the complaint either by certified mail, Sheriff or a private process server. A summons will probably be attached to the complaint, stating the name and address of the person to be served.
Answering the Complaint
If you are served with a complaint in small claims court, it is a good idea to file an answer to the complaint. In many states, answering a small claims lawsuit merely requires that the defendant sign the pleading and return it to the court. In other states, the defendant writes an informal letter or pleading, explaining his side of the dispute.
Answering a complaint lets the judge know that you are concerned about resolving the issues raised in the complaint. In most states, however, you will still have a chance to tell the judge your side of the dispute at the small claims hearing, even if you do not file an answer to the complaint.
In regular civil court, if you do not file an answer, a default judgment will probably be entered against you. After a default judgment is entered, most states give you 30 days in which to file an answer, after which the judgment becomes final. Once a judgment becomes final, the plaintiff can take action to collect the money he or she was awarded.
To answer a complaint, you generally need to admit or deny each numbered statement made in the complaint. In most states, you must raise certain defenses to a lawsuit in your answer or the court will assume you waive those defenses. You will probably need to consult an attorney in your state for help in answering a complaint so that you properly raise any defenses that may benefit you.
On a particular day, called the hearing date or trial date, the case will be heard by a judge. It may not be necessary for you to hire a lawyer to represent you in small claims court. Both sides will be given the opportunity to explain their sides of the dispute to the judge and to present any evidence, such as contracts or statements, to support their arguments.
The judge will probably be more likely to consider your point of view if you act in a calm, organized manner. Negative comments or outbursts will make your side of the dispute seem less believable.
If the hearing or trial date falls on a day that is particularly inconvenient, you have a few options. First, you can contact the party suing you to ask them to agree to change the date. Secondly, you can file a motion for continuance (asking the judge to postpone the hearing or trial) along with an order for the judge to sign. Finally, you can go to court on the hearing date and ask the judge to postpone the hearing or trial until a later date. If you opt for the third choice, you should realize that the judge may not grant the extension and may go forward with the hearing or trial as scheduled.
If the judge decides that the creditor who sued you deserves to be paid, a judgment may be entered against you. If you do not immediately pay the amount of the judgment, the creditor (now called a judgment creditor) will have several choices about how to get the money from you.
1. Wage Garnishment
The judgment creditor can ask the court to issue papers, sometimes called a Writ of Garnishment, to be given to your employer with instructions about withholding part of your salary. The employer may send the money directly to the person you owe money to or send it to the court clerk for disbursal.
For example, if the amount of the judgment against you was $1,000, your boss may withhold $100 of your salary every month and send it to the creditor until the full $1,000 is paid off. Garnishments may last for a specific amount of time, such as three years, or until the debt is repaid, depending on your state’s laws.
Your state law will also control how much the creditor can garnish. Generally, the most your creditor can garnish is 25 percent of your disposable income or the amount by which your disposable earnings for the pay period exceed 30 times the minimum wage, whichever is less.
If you do not want your wages to be garnished, you can try to negotiate with the judgment creditor. Sometimes, a judgment creditor will be willing to accept payments directly rather than have your wages garnished, with the understanding that if you default in your payments, your wages will be immediately garnished.
2. Garnishment of Bank Accounts
Judgment creditors can also take property, such as bank accounts, to pay off a judgment. The judgment creditor files papers with the court clerk and a court order is then given to your bank. Money you may have in your bank account is given to the judgment creditor to help pay off the amount you owe.
If there is not enough money in your account to pay off the debt, other property may be taken and sold to pay the difference or wages can be garnished. Often a judgment creditor will get another court order at a later time to remove more money from the account if the original amount taken was not enough to repay the debt in full.
3. Attachment of Personal Property
Another means for a judgment creditor to get money from you to repay your debt is taking property that you own and selling it. A judgment creditor can get a court order, called a Writ of Attachment, allowing your property to be taken by the sheriff. The sheriff comes to your home with the court order, takes the item specified and places it in storage.
If you do not file an objection within a certain time period, the item is sold at a sheriff’s sale. The money received from the sale is used to pay what you owe. If the proceeds of the sale do not cover the amount you owe, you will still be responsible to pay the difference.
If the sheriff comes while you are not at home, the law usually allows him to take the property identified in the Writ of Attachment if it is visible without entering any locked spaces. For instance, the sheriff may be able to take a car sitting idle in the driveway by using a copy of a key or by hotwiring the car. However, if the car is in a locked garage, the sheriff may not take it. Any property inside your house is also off-limits, unless the sheriff has a special court order to enter. In this situation, it would be a good idea to allow the sheriff to enter, rather than to resist.
If your property has been taken and you are able to pay the amount of the judgment, you can offer to make the payment in exchange for the return of your property.
Satisfaction of Judgment
Once you have paid off a judgment, a wise debtor will always ask for a document that shows the judgment has been paid in full (called a satisfaction of judgment). This document will serve as proof for any later transaction where you need to prove the debt has been paid.
To Research This Topic Further:
Procedures relating to small claims cases vary by state. If you are sued in small claims court, often the court designated on the complaint will have brochures or printed information for consumers. You can also research issues using the law library at your local courthouse. Ask the librarian to direct you to your state code and to the place where local laws or ordinances are kept.
Use the index to find your topic. Your state code will usually contain statutes or state laws that apply to your situation. Most state codes have annotations, which show how the judges in your state have interpreted a law on a case-by-case basis. Be sure to check the updates to any volume of the state code or local laws you are looking in. Updates contain important information regarding any changes to the law that have occurred.