SMALL CLAIMS COURT
What, you are not going to pay me the money you owe me? Most of us at one time or another have been in the unfortunate situation of someone owing us money, whether it be from property damage, personal injury, or failure to pay a debt, and unable to collect that money. The problem arises when you cannot afford an attorney or the amount is so small that it would not be economical to hire an attorney. Most of us write-off the amount owed to "experience" or "well, I'll know better next time," and do not consider the option of small claims court.
Both North Dakota and Minnesota provide a forum for resolving disputes involving a small amount of money and relatively straight forward facts. This forum is called conciliation court or "small claims court." Generally, the types of cases heard by small claims court include: landlord-tenant disputes, automobile accidents, personal injury, property damage, dishonored checks, cancellation of a contract or other agreement, nonpayment of goods or services, or other debts.
Small claims court does not offer the best course of action in every situation. Generally, you may only sue for money, and not specific performance. For example, if a painter does not paint your house to your liking, you cannot force him to go back and repaint the house. You must convert your problem into financial terms, such as the dollar amount of how much it will cost to have someone else repaint your house. Additionally, property or merchandise usually cannot be recovered, this must also be converted to money damages. Also, cases involving real estate titles cannot be filed in small claims court.
Claims may be filed in small claims court if the amount claimed does not exceed $5,000.00 in North Dakota or $7,500.00 in Minnesota, and no more than six years has lapsed since the date of the debt or date of the last payment. This time period may vary under certain circumstances. In small claims court, you do not need to hire an attorney and there is not right to a trial by jury. The judge will assist both parties in presenting their cases.
If you file a claim in small claims court, you may not change your mind and have the case moved to district court. However, in North Dakota the person you are suing (the defendant) may have the case heard in small claims court, or have the case moved to district court by filing a Notice of Removal with the clerk of court and serving that notice on the plaintiff at least 48 hours before the scheduled small claims court hearing. In North Dakota, if the defendant does not remove the case from small claims court to district court, he or she cannot later appeal the small claims court decision or motion for a new trial.
In Minnesota, the defendant does not have the right to immediately remove the case to district court. Instead, the defendant must proceed with the small claims court hearing. Once the hearing is completed, the losing or dissatisfied party may appeal or make the motion to vacate a judgment and have the case removed to district court for a new trial. District court proceeding are more formal and more complex. Although it is not required, it is suggested that the party removing to district court be represented by an attorney.
Generally, a claim must be filed in the county where the defendant lives. If the defendant is a business, the claim may be filed in the county where the business or branch office is located. There are some exceptions to this and you should check with the small claims court in your county for those exceptions. If you are seeking recovery for a check written without sufficient funds or without an account, the claim may be filed in the county where the check was passed or in the county of the defendant's residence or place of business.
In order to file a claim with the small claims court, you should first check with the clerk of your local district court to find out what to do. Generally, you will need to purchase the small claims court forms and instructions, the cost is around $4.00. You will be responsible for filling out the "claim affidavit", this is the document on which you state the amount of your claim and a brief reason why you are requesting a money judgment against the defendant. It is a good idea to include specific dates, times, places, witnesses and attach photographs, receipts, estimates, or other evidence which will support your claim. The next step is to give these documents to the small claims clerk and pay a filing fee of around $10.00. The small claims clerk will then schedule a date and time for your case to be heard by the small claims court judge.
You are then responsible for having the claim affidavit served upon the defendant. This can be done by personal service, someone hand delivering the claim affidavit to the defendant. You cannot serve these papers yourself. The person who serves the defendant with these papers must be of legal age and must not have any interest in your small claims case. The sheriff in the defendant's county will personally serve the defendant for a fee. Another way to serve the defendant is by certified mail, restricted delivery, return receipt requested.
You may settle your case with the defendant at any time before the hearing is held. It is your responsibility to tell the clerk of court if you and the defendant settle your case. Regardless of whether you are the plaintiff or the defendant, it is absolutely essential that you appear in court to tell your side of the story. If you do not show up, you will probably lose and have a judgment entered against you. Although small claims court hearings are informal, it is important that you are adequately prepared to present your case. You should take all receipts, documents, and evidence related to the case with you to the hearing, and have your witnesses testify at the hearing. You are responsible for proving not only that the defendant was in the wrong, but also that you have suffered damage as a result of the defendant's action. If you win, the judge may order the losing party to pay your costs (filing fee, etc.).
It is important to remember that even if you win, the court will not collect the judgment for you. If the judgment is in your favor, the defendant has a minimum of twenty (20) days from the time he or she receives the notice of the judgment to pay you. If you do not get your money at that time, you can get an execution on the judgment. This means that the sheriff can seize some of the person's assets. Additionally, you can put a lien on the person's real estate. You can do this by having the clerk of court enter the judgment on the judgment docket. This judgment will also show up on the defendant's credit history. Other remedies may also be available. You may wish to consult an attorney for assistance in collecting your judgment.
Michelle Donarski is an attorney with the law firm of Anderson & Bottrell, State Bank Center, Suite 302, 3100 13th Avenue SW, Fargo, ND 58103 (701) 235-3300.