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| Procedures in small claims court are less complicated than a regular lawsuit. |
| Photo © xandert |
Small Claims Court and Lawsuits
Contract litigation is simplest in small claims court, if the debt qualifies. Small claims courts typically limit the claim to amounts less than anywhere from $1500 to $25,000. If you can afford the time, small claims court can be the most effective way of collecting an overdue account.
Procedures can be very simple, far less complicated than a regular lawsuit. Usually, you will just file a form with the court clerk, who will notify the other party, and eventually you will get a court date. In most small claims courts, you will not need or even be allowed an attorney. You will present your case, the defendant will present his.
The burden of proof will fall on you. Here's where good recordkeeping can pay off. Bring written records of the work performed, agreements, photographs of work, copies of bills, collection letters, notes of telephone conversations, etc. Be organized. Prepare a brief oral testimony (don't read it!). Never interrupt someone who is speaking, especially the judge.
Be aware that, even if you win, the debtor may refuse to pay! You may have to return to court.
Lawsuit
If the amount owed to you is too large for small claims court, you might consider filing a lawsuit.
ALERT: It is illegal to threaten a debtor with a lawsuit if you have no intention to file one.
Filing the Lawsuit
Use an attorney familiar with debt collections. Some work on a contingency basis (they get paid only if you win). Others charge a fee whether or not the money is collected.
To file a lawsuit, your attorney files a complaint against the debtor, usually in Circuit Court. The Clerk of the Court issues a summons to the debtor, specifying when and where to appear in court or instructions on how to file a written defense.
If the debtor ignores the summons, you may be able to obtain a default judgment against the debtor and proceed to collect the money. If the debtor does appear or files a written defense, the case will be given a trial date. A debtor will often seek to negotiate a settlement before the trial.
Collecting Your Money
If you win your lawsuit, you still do not have your money in hand. You will have several options as to how you can actually collect your money. These will vary from state to state. Typically, your options will include:
- Ask the court to issue a judgment. The judgment will typically be a lien on real estate, and the real estate can be sold to satisfy the lien.
- Request an “execution order” that the police or the sheriff seize and then sell the personal property and real estate of the debtor to obtain money to satisfy the judgment.
- Request a citation to discover assets in order to collect the judgment. A citation is a type of summons which can compel the debtor, or anyone who the creditor believes has the assets or property of the debtor, to appear in court to testify about any such assets or property. The citation may also prohibit the debtor and other such person from disposing of or transferring the assets or property.
- Request a garnishment. This is a legal procedure in which a person’s earnings are withheld by an employer for the payment of a debt.
Other last resort collection options:
Back to main article, Last Resorts for Debt Collections