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.
On the Mediation Date
Parties are expected to appear on time and should check in at Hearing Room D on the first floor.
The case will be assigned to an experienced mediator, who will attempt to assist the parties in reaching a settlement. Mediation offers parties an opportunity to discuss the case in a more relaxed, informal setting rather than going before a Judge or Magistrate.
Both sides will have an opportunity to discuss their views about the claim with the mediator. Parties should bring applicable evidence and documentation with them to the mediation hearing.
If a defendant fails to appear and the Court determines that they had proper notice, a default judgment will be prepared and submitted to the Magistrate for approval and mailed to the parties within a week.
If the plaintiff fails to appear, the claim may be dismissed.
If both parties appear and agree to a settlement, the mediator will indicate the terms of the agreement on a judgment form to be signed by both parties. The Magistrate will later review the mediation settlement and sign the judgment. Parties will receive their copies within a week.
If both parties appear and cannot agree to a settlement, the case will be scheduled before a Magistrate for a hearing. Parties will receive notice of the new court date by mail within 10 days.
Hearing Before the Magistrate
Claims that are not resolved through the mediation process will be heard by the Magistrate. [Note: a small claims case may not be removed to the General Civil Docket after a hearing has been held by the Magistrate.]
When the case is called, the plaintiff takes the stand, is sworn and makes a statement as to why the defendant is liable. The plaintiff may offer other witnesses and evidence, if any.
The defendant may then take the stand and make a statement as to why they are not liable and, likewise, may offer other witnesses and evidence, if any.
Each party has the right to question the other party or his witnesses while they are on the stand and after they have completed their statements. This is called cross examination. This must be in the form of questions. All statements are to be made to the Court. You should only address the other party or witness in the form of a question and should not argue with the other party or his witnesses directly.
After the testimony and evidence has been presented, each party has an opportunity to summarize the matter before the Magistrate.
The Magistrate will then either render a decision at the end of the case or take the matter under advisement. In the latter event, the decision will be mailed to the parties.
If the plaintiff prevails, the court costs are usually added to the amount of the judgment.
Once the judgment has been entered, the parties have seven days to appeal the Magistrate's decision by completing an appeal form. The matter will then be scheduled for a new trial before a Judge within 30-45 days. The judgment entered by a Judge cannot be appealed.
Again, it is essential that each party have the evidence and witnesses with him/her at the time of the hearing. It is difficult for the Court to render a fair decision with less than all the facts. If you need witnesses, you must subpoena them well in advance to ensure their presence.
Collecting the Judgment
It is the plaintiff's responsibility to collect the judgment, not the Court's. The Court encourages the parties to agree among themselves how to pay the judgment. Parties may choose between lump sum or installation payments. Any agreement reached should be reduced to writing, signed by both parties and a copy filed with the court to eliminate a future dispute on the terms of the agreement.
If an agreement cannot be reached, the defendant has the right to petition the Court to set aside the payments. The defendant must provide the Court with all income and expense information to permit the Court to set aside payments that are reasonable, yet satisfying the judgment without undue delay.
If the payment agreement or Order Setting Payments is followed, the plaintiff may not take further Court action to collect against the defendant's wages.
If the defendant will not voluntarily pay the judgment, there are several options available to you:
Garnishment - If you know where money is owed the defendant, such as wages, bank accounts, etc., you may file a garnishment to collect this money. A plaintiff must wait 21 days after the judgment has been entered to file a writ of garnishment. The garnishment is filed against the person or business having possession of the monies. They are referred to as the garnishee. As previously mentioned, income such as welfare, unemployment, social security, etc., cannot be garnished.
To file a garnishment, you are responsible for the following:
- The name of the party who owes the defendant money (this will be the garnishee)
- The proper name and address of the garnishee
- The amount the defendant still owes you on the judgment
- Filing fee of $15
- Service fee of $21, plus mileage
The garnishee has 14 days after they are served with the writ of garnishment to let you, the Court and the defendant know if there are monies owed. 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.
Please note that a garnishment cannot be issued prior to a judgment and once a garnishment has been issued, the Court is powerless to stop it, unless dismissal is requested by the plaintiff.
Writ of Execution - If information necessary to file a garnishment is unknown, but the defendant has physical property, you may want to file a Writ of Execution. This process allows a Court Officer to seize property to satisfy a money judgment. The Court Officer may require information on the property to be seized, such as vehicle title information, in order to act upon the execution.
A plaintiff must wait 21 days before filing an execution. There is a $15 filing fee for a Writ of Execution.
Discovery Subpoena - If you don't have information necessary to file a garnishment or a writ of execution, you may file a Judgment/Debtor Discovery Subpoena. This subpoena must name an individual, not a business. It is served on that person ordering them to appear for questioning as to their assets on the date set. If the party fails to appear, the Judge may issue a warrant.
A plaintiff must wait 21 days before filing a Discovery Subpoena. There is a $15 filing fee, $24 service fee, plus mileage for this action.
Abstract of Judgment - If your suit involves a traffic accident, you may request that the Court prepare an abstract of judgment which would suspend the driver's license (Michigan only) of the defendant until the judgment has been satisfied. When filing an Abstract of Judgment, you must wait 30 days after the judgment date and must have the defendant's full name, date of birth and Michigan driver's license number. There is no fee for filing an Abstract of Judgment.
Interest on Judgment - Interest may be calculated on small claim judgments. Interest rates change every six months and are posted at the Civil Division counter. Court staff cannot provide assistance in computing interest.
If you request that interest be included in your judgment, you must provide the Court with a written summary of the calculated interest you are requesting.