smart spending

5 steps to stake your small claim in court

Gavel
Highlights
  • The amount you can seek is limited.
  • Investigate first to determine if it's worth it.
  • Have a collection strategy in case you win.

Most debt advice is for people who owe money. But what if they owe it to you?

Maybe a former tenant's security deposit fell a few thousand short of the damage he left. Or an old friend now says you never lent him five grand, despite a canceled check to the contrary. Perhaps a hot-rodder flattened your flowerbeds, promised to repair them, then drove off for good.

The first step in these situations is prodding people to pay. Calls, letters and perhaps mediation might help.

If they don't work, there's another form of fiscal relief: small claims court. In most states it's relatively cheap, user friendly and can help you recover what's rightfully yours.

But first, ask yourself if it's worth the trouble. It's called small claims court for a reason. It's limited to debts that, in the scheme of things, aren't large. "In California, the most you can file for is $7,500," says Steve Ostrow, a Southern California attorney who has served as a small claims judge. "It varies from state to state -- usually it's $5,000 to $7,500."

Hiring an attorney probably isn't economical, and some states actually require plaintiffs to represent themselves. According to research posted by Nolo, an authoritative legal information website whose co-founder, Ralph Warner, authored "Everybody's Guide to Small Claims Court," it rarely makes sense to lawyer up for disputes of less than $25,000.

But if you're organized, persistent and deserving, here's how to proceed to proceedings.

Step 1: Suiting up

First, make like Matlock and start investigating.

For instance, confirm the statute of limitations hasn't expired on the debt. This varies state by state.

Make sure your state's small claims courts handle your issue. "Small claims courts primarily resolve small monetary disputes, and in a few states, evictions and restitution of property," according to Nolo. Things like divorce and bankruptcy belong elsewhere.

Then determine the jurisdiction. Typically you file where the defendant resides -- which may be a problem. "Because of the distance involved, out-of-state small claims lawsuits tend to be expensive and unwieldy," says Nolo.

If the facts check out in your favor, however, file your case. "The small claims court has simplified forms which you can get at the courthouse," says Ostrow. "In California, you can get them online. It's designed to be user friendly." Filing fees are usually $50 to $100.

Step 2: Duty to serve

Next, get the defendant served -- and no, we're not talking lunch. Serving means giving a copy of court papers to someone. In this case, it's a "Notice to Appear" spelling out your claims and the time and place of the trial.

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The simplest serving method is by having a court clerk send a summons by certified mail. If you pay a private process server, it's vital that they file a Proof of Service form with the court. "The courts won't hear your case without it," says Ostrow.

Provide the defendant adequate time to prepare. How long depends on the jurisdiction.

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