Items to consider before starting a small claims suit
What are the chances of collecting the money owed you if a judgment is entered in your favor?
A judgment does not mean automatic payment. It only means that you have proven, to the satisfaction of the Court, that the person you sued owed you money. A judgment is often not difficult to obtain, but the collection of money may be difficult, if not impossible. The party you sue 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 them pay. Income such as welfare, unemployment, social security and other similar payments cannot be garnished.
Please consider the collectibility of your case before filing.
If you file a small claims case, you will be responsible for handling the case in accordance with all applicable court rules and procedures and for collecting on any judgment.
You cannot be represented by an attorney in Small Claims Court. Although it was designed to be an informal process, it can be complicated and frustrating.
You should be aware that:
- Court Clerks are not attorneys and cannot give legal advice and cannot assist you in filling out forms.
- The Judges and Magistrates may not, and will not, give advice on matters they may have to rule on; they must remain impartial.
Requirements for filing
To start a small claims suit in this district:
- The defendant (i.e., the person or business being sued) must reside or be established in the jurisdiction of the 46th District Court (See Geographical Jurisdiction, page 1). There are some situations where you may file in the district where the cause of action occurred, regardless of where the defendant lives or is established (check with the Court Clerk when filing your suit).
- You must have a direct interest in the suit; for example:
- In traffic accident cases, the claim must be filed by the owner of the vehicle.
- You can't file a claim on behalf of someone else or if you are filing on behalf of a business, you must be a full-time employee with knowledge of the facts.
- Your claim may not exceed $6,000, effective January 1, 2018 ($1,000 for traffic accident claims).
- You must waive certain rights i.e., you may not have an attorney represent you, you may not have a jury decide the case and a Judge's decision may not be appealed.
The defendant cannot be forced to waive the above rights and if they so move, the matter will be transferred to the General Civil Division. This may not be known until the time of the hearing.
Once your claim has been filed, make a note of the case number and use it to reference the case when telephoning the Court or making a Court appearance.
How to file
- Submit a completed Affidavit and Claim form. This form requires information on the defendant's full and correct name and current address, the date and amount of the claim and the reason for the claim. Please note that the affidavit must be signed by each plaintiff and witnessed by a Deputy Court Clerk or be notarized. If your claim is based on a written agreement, it is recommended that you attach a copy of the document(s) to your claim. You must provide a copy to the Court and a copy for each defendant.
- Pay the filing fee according to the amount claimed. If filing by mail, send check (Michigan banks only) or money order made payable to the 46th District Court.
- Select and pay for service of process. Each defendant must be served with a copy of the Affidavit and Claim. There are three ways to serve:
- Service by certified mail with return receipt requested. The fee is $10 per defendant. Personal service (probably by a Court Officer) would be required if certified mail is returned "unclaimed" by the post office or the return receipt is signed by someone other than the defendant and the defendant fails to appear on the hearing date.
- Personal Service by a Court Officer. The fee is $26, plus mileage. You must have the defendant's complete street address and not a post office box number for personal service. If you furnish an incorrect address or the defendant has moved, the Court Officer is allowed, by law, to charge you $10 for his/her time, if service is attempted. Personal service may become a time-consuming process as many defendants are evasive. You cannot have your case tried until the defendant is served. The defendant must be served within 91 days from the date of filing or the case will automatically be dismissed.
- Personal service may be made by any legally competent adult who is not a party to the suit. However, please be advised that if you select this option, service must be in accordance with the Michigan Court Rules or the service will be considered invalid. If, after three attempts, the defendant cannot be personally served, you may request an Order for Alternate Service.
The Court will generally schedule a mediation date within 30-45 days after the claim has been filed. Parties receive notice of the court date by mail within one to two weeks of filing. However, note that if the defendant has not been served within seven days of the hearing date originally set, the mediation may have to be rescheduled.
Settlement Prior to Hearing Date
Frequently, the defendant offers to settle the case prior to the hearing date. If lump sum settlement is not possible and you are agreeable to installment payments, reduce the agreement to writing signed by both parties and file a copy with the court
to avoid a future dispute as to the terms of the agreement. If the claim is paid, you should notify the court in writing that you want to dismiss the suit.
If agreement is reached, but there has been no payment, you may dismiss the suit. However, many people prefer to continue to judgment in the event that there is a default on the agreement.
Adjournments must be requested in writing
in a timely fashion prior to the court date and must indicate the reason for the adjournment and how long of an adjournment is requested. The adjournment request will be submitted to the Magistrate and, if granted, the parties will be notified of the new date by mail. Do not assume
your request has been granted; you must check with the Court Clerk to find out the Magistrate's response.
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