Small Claims Court
What do you do if a customer owes you a small amount and refuses to pay? For example, your customer owes you $500, and it would cost you more than $500 in legal fees to sue him. You can use a collection agency, or you can file suit yourself in small claims court. Warning: Only individuals can represent themselves as plaintiffs in small claims court. If the customer owes your corporation, you cannot file suit on behalf of the corporation. You must hire a lawyer. Certain officers of a corporation can, however, represent the corporation if it is named as a defendant.
As its name make clear, small claims court is designed to handle lawsuits regarding relatively small amounts of money. A complaint can be filed in small claims court if the damages being sought are $10,000 or less. (The amount increased from $5,000 to $10,000 in 2006.)
In addition to the dollar amount limitation, there are limitations on the types of cases that can be brought in small claims court. Some claims that can be filed are: breach of contract, property damage, and garnishment to enforce judgments. Claims for libel, slander, professional malpractice and punitive damages cannot be filed in small claims court.
The procedures in small claims court are greatly simplified to help move these cases more quickly and at a lower cost. In order begin a small claims case, you would file a Complaint and a Summons with the Circuit Clerk. You can obtain forms for small claims court at the Circuit Clerk's office (4th floor of the County Building) or online at various places including www.illinoislegalaid.org or http://www.law.siu.edu/selfhelp. When you file your claim in Sangamon County, the clerk's office will give you a copy of the Small Claims Court Manual, which is very helpful, or you can obtain the manual from the Circuit Clerk's website, www.sangamoncountycircuitclerk.org. (The Circuit Clerk employees cannot give you legal advice, but they are very helpful with explaining procedures such as filing and service.) You will have to pay a fee when filing your Complaint. The filing fee in Sangamon County ranges from $93.00 to $158.00 depending on the size of the claim. If your claim is based on a written document, such as a loan agreement, you must attach a copy of the document to the Complaint.
In most lawsuits, the plaintiff must arrange for the defendant to be "served with process." Generally this means that an authorized person physically hands the Complaint and Summons to the defendant and certifies that this has been done. Papers can be served by the Sheriff's office or by an authorized private process server. In small claims court, personal service is not required if the defendant lives in Sangamon County. In that case, service can also be made by certified mail. The Circuit Clerk's office will send the summons by certified mail for you for a fee of $9.50. Many people do not claim certified mail, however, particularly if they have reason to believe they will be sued. If the defendant does not sign the green receipt card for the certified mailing, you will need to take additional steps to obtain service. Therefore, you may choose to have the Sheriff's office serve the Summons even though the fee is $42.00.
When you file your Complaint, you need to set a hearing date for the "first appearance." The hearing date must be provided in the Summons so the defendant knows when the hearing will take place. The hearing date cannot be less that 14 days after your file the Complaint or more than 40 days. Generally 30 days is a good option and will give you enough time to obtain service on the defendant. The defendant must be served at least three days before the first appearance hearing.
In Sangamon County first appearances are heard on Fridays. Cases for parties without attorneys are set for 9:00 a.m. and cases for parties with attorneys are set for 1:30 p.m. The first appearance will not be a trial of your claim. If the defendant does not appear, the judge may award you a default judgement (which the defendant has 30 days to challenge). If the defendant appears and admits the debt, the court will enter judgement against him. If the defendant appears and disputes the debt, the court will set a trial date.
Small claims cases are heard by a judge unless the plaintiff demands a jury when the case is filed or the defendant demands a jury trial. Juries in small claims cases are generally made up of six people. There is an additional fee of $12.50 for a six person jury demand and $25.00 for a twelve person jury demand.
In small claims cases there is no "discovery" unless you request it and the judge grants your request. Discovery generally consists of written demands for information and depositions of parties or witnesses. The lack of discovery is one of the main reasons small claims cases can move more quickly and at a lower cost.
When your trial date arrives, you will generally testify explaining your case. You should bring all written documents supporting your claim with you, e.g., repair bills. You may also have witnesses testify. The court will not accept written statements – live testimony is required. After you present your case, the defendant will present his case, and the judge will determine the outcome. As the plaintiff, the burden is on you to prove your claim.
If you win your claim, you must then collect the judgement from the defendant, which can be extremely difficult. Tom Pavlik will address the collection process in the June issue of the Springfield Business Journal. In the meantime, consider this advice from the Small Claims Court Manual:
Our Illinois Constitution prohibits a judge from putting a person in jail for failure to pay a debt. Therefore, if a person does not have money, income or property, there may be no legal way for the court to help you get money owed to you. It is wise to make sure a judgment can be collected before paying the costs of a lawsuit.