General Rules for Filing
a Small Claims Suit
- The amount claimed cannot exceed $3.000.00, and you
may not separate your claim into multiple suits. There is a $50.00 filing fee for the filing of a
Small Claims Complaint that names one defendant and a $10.00 filing fee if
more than one defendant is named. (This fee must be paid at the time the
complaint is filed.) Filing fees for counterclaims or crossclaims will be the
same. You must know the address of the party you file suit
against. If you are a minor, under 18, you must have your
parent or guardian file the suit for you. You may not sue a minor. You may sue a minor through
his parent or legal guardian.
- The party filing the suit must prove his case by a
preponderance of the admissible, credible evidence.
- THE MEMBERS OF THE CLERK'S OFFICE ARE NOT
ATTORNEYS AND BY LAW ONLY LAWYERS CAN GIVE LEGAL ADVICE. If you
require legal advice, you must get the advice from an attorney.
- When a judgment is obtained and the defendant
refuses to pay, the Clerk's office will supply the plaintiff with the
necessary forms to attempt collection of the judgment.
INTRODUCTION
Small Claims Court is a division of the
Mason Municipal Court and is governed by Chapter 1925 of the Ohio Revised Code,
Rule 53 of the Ohio Rules of Civil Procedure, and Rule 101(C)(8) of the Ohio
Rules of Evidence.
Small Claims Court provides a quick,
informal and inexpensive way of resolving various types of disputes one has with
other individuals or companies. Complaints heard in Small Claims Court include a
variety of legal disputes, such as repair problems, breach of warranty,
defective products, unreturned rental deposits, undelivered goods, insurance
claims, damage done to property, etc.
Often a party wants his property returned.
Small Claims Court can decide claims for MONEY ONLY. The Small Claims magistrate
cannot order a defendant to do anything other than pay a specific sum of money.
So, you must be able to put a price tag on any damages you have suffered as a
result of the defendant's actions. You must have evidence to offer to prove the
damages.
Small Claims Court does not have
jurisdiction in such actions as libel, slander, repossession or cases which do
not involve actual monetary damages. If you have a dispute with your mechanic,
for example, you can base an action on your bills or the estimated cost of
redoing his work. But, you could not ask the Court to make the mechanic fix your
car or release it before payment of a bill. The monetary limit on the amount of
damages that can be claimed on a complaint is $3,000.00, plus interest and court
costs. The monetary limit on a counter-claim or cross-claim is $3,000.00 plus
interest and court costs. If a counterclaim exceeds this amount, the case must
be transferred out of Small Claim Court to the regular docket of this Court or
to Common Pleas Court if the counterclaim exceeds $15,000. If you believe that
you have a claim against the Plaintiff, you must file a counterclaim with the
Court and must serve the Plaintiff and all other parties with a copy of the
counterclaim at least seven (7) days prior to the date of the trial of the
Plaintiff's claim.
HOW
TO BEGIN PROCEEDINGS
An action in Small Claims Court begins
when the plaintiff files his complaint with the Clerk at Mason Municipal Court
at 5950 Mason-Montgomery Road. Forms for the filing of a complaint are provided
at no charge by the Court and may be obtained in the Clerk of Court's office,
Civil Division, located in the rear left corner of the Mason Municipal Building.
The claim states the amount and nature of
this action. The complaint must be signed before a notary public or a deputy
clerk. A filing fee is paid at this time. The filing fee for each complaint,
counter-claim or cross-claim is $50.00 if only one defendant is named. If more
than one defendant is named, the fee is $10.00.
Before you file, make sure you know the
true, legal name of the person or business you intend to sue. If you sue the
wrong party, the case may be dismissed or, you could wind up with an
uncollectible judgment.
For example, a common mistake would be for
a tenant to sue the resident manager for the return of a rent deposit, when
he/she should have sued the owner of the building. Similarly, a mistake would be
for a customer of a repair shop to sue the mechanic instead of the shop owner.
A similar problem can result from suing a
business name without making sure it is the business's legal name. Unless the
business is actually incorporated under that name, there may be no chance of
collection, even if you should win.
An unincorporated business (sole owner or
partnership) must be sued in the personal name of the owner or partner, i.e.,
John Doe dba John's Repair Shop. (dba means "doing business as".) Only a
corporation (Ex: John Doe's Car Repair, Inc.) can actually be sued in the
company name. If you are unsure whether the business is incorporated, call the
Ohio Secretary of State at (614) 466-3910. You may discover the business name is
totally different from the actual corporate name, and it is the corporation
identity you should be suing.
With regard to motor vehicle claims, the
complaining party must present proof that he or she is the real party in
interest (i.e., the one who may properly bring the claim). This is customarily
accomplished by producing a valid certificate of title or the original lease (if
the damaged vehicle is leased), or agreement of all responding parties in open
court. Proof of damage may be demonstrated by producing a) at least two (2)
estimates of repair, or b) a receipted repair bill, or c) testimony from an
expert in collision repair.
If your cases is against a landlord for
not returning a rent deposit, you could ask for and be awarded double damages if
you can prove: (1) you gave proper notice before leaving and left a forwarding
address; and (2) thirty days after you moved, the landlord had not returned your
deposit or provided an itemized statement of damages to you. *** If you can
prove the landlord's damage claim (although sent within 30 days) is false, you
still may claim double damages. *** The right to double damages for wrongfully
withheld security deposits is detailed in Section 5321.16 of the Ohio Revised
Code.
Ohio's basic consumer protection law,
The Consumer Sales Practices Act (CSPA), includes a set of "substantive rules."
These rules explain specific consumer rights on various kinds of transactions.
Small Claims has the authority to hear cases in which a consumer claims a rule
has been violated and to grant judgments equal to the greater of $200 or triple
the amount of actual damages.
Since you can collect only money from a
Small Claims action, it is very important you put the right price tag on your
claim. Whatever your claim is for—auto damage, damage to personal property,
etc.—estimates and receipts will help the Magistrate in determining your loss.
If you win your case, you may also be entitled to recover your court costs and
interest. If a contract between you and the defendant does not stipulate an
interest rate, you generally will be awarded the "statutory rate" (currently
10%) from the date of judgment.
Finally, as a general rule, you should
seek to sue a person or business in the county in which he/she/it resides or
does business. Once you have determined who you are going to sue and for how
much, go to the Clerk of Court's office to fill out a Small Claims Complaint
form. You will pay the appropriate Court fees at this time. The Clerk will set
the case for [initial hearing.] Although the Clerk may help you fill out the
form, THE CLERK IS NOT AN ATTORNEY AND
CANNOT GIVE YOU LEGAL ADVICE ABOUT YOUR CASE.
MAGISTRATE
Proceedings in the Small Claims Division
are conducted before a magistrate appointed by the Court. The magistrate is an
attorney, admitted to practice law in the State of Ohio.
PLACE OF
HEARINGS
All hearings are conducted in the small
courtroom on the main floor of the Mason City Building at 5950 Mason-Montgomery
Road, Mason, Ohio.
HEARINGS/TRIALS
At this first hearing, the magistrate runs
quickly through the many cases set for that day. The purpose of the initial
hearing is to determine whether the defendant (the person being sued), admits or
denies the plaintiff's claim. BE ON TIME. Court starts promptly at the time
written on your form. If you are late you may automatically lose.
At the time scheduled for initial hearing,
the magistrate will call all the cases set for that day. If the plaintiff does
not appear, the case will be dismissed. If the defendant does not appear, the
magistrate may recommend that a default judgment be entered in the plaintiff's
favor. A copy of the default judgment entry will be sent to the Plaintiff by the
Court. If the defendant appears and admits that the money is owed plaintiff, but
desires time to pay, the magistrate may set up a payment schedule. If such
payment schedule is established, judgment for plaintiff against defendant shall
be stayed as long as defendant makes the required payments. If the defendant
denies the plaintiff's claim, the magistrate will continue the case conduct a
contested hearing.
CONTESTED
HEARINGS
The contested hearing is the trial on the
merits. This is both parties' opportunity to offer evidence and to present and
cross-examine witnesses. The hearing is an informal one; attorneys are permitted
but not required. Most rules of evidence do not apply.
However, hearsay evidence is not
admissible. Hearsay evidence includes written statements from witnesses who are
not present at trial. Written estimates, however, may be offered as a measure of
monetary loss to prove damages.
A corporation may file and present its
claim or defense through its officer or employee, but may not present argument
or engage in cross-examination without representation by an attorney.
PREPARING
YOUR CASE
Organize the case before going to Court.
Plan on what you will say and organize your testimony and arguments so the
magistrate will be able to understand clearly what happened and why you have
been injured or wronged. Bear in mind you will have to convince the Small Claims
magistrate not only that you are right but you are also entitled to a specific
sum of money from the defendant.
Collect all documents related to your
case; receipts, canceled checks, estimates, bills, contracts, photos, etc.
If you have a witness that is necessary to
the proof of your case, please be advised that you have the right to subpoena
that witness to guarantee his or her appearance at your hearing. You may obtain
the subpoena forms from the Clerk's office of the Civil Division of the Mason
Municipal Court, 5950 Mason-Montgomery Road, Mason, Ohio. The Court requests
that the completed subpoena be turned into the Clerk's office at least five (5)
days prior to the hearing. You must provide the witness being subpoenaed with a
$22.00 witness fee for each witness.
GOING TO COURT
At the contested hearing, the magistrate
will swear in all parties and witnesses, hear testimony and receive evidence.
Again, BE ON TIME. Court starts promptly
at the time scheduled.
PRESENT
YOUR BEST CASE
Each side gets a chance to present
testimony and evidence. Present your case in an orderly manner. Include all
relevant facts and be sure to state the amount you are claiming and explain how
you arrived at this amount. Show the magistrate any documents or other evidence
you have.
The other side will have a chance to
question (not argue with) you on any points you have raised in your testimony.
The magistrate may also ask you clarifying questions. Remember you are under
oath and must answer truthfully and as completely as possible.
If you have witnesses, they will then have
the chance to explain what they know about the case. They may also be questioned
(cross-examined) by the other side. After the plaintiff has finished, it is the
defendant's turn. You will have the chance to question each witness for the
other side. Do not interrupt or argue. Permit the defendant or his/her witness
to complete testimony and then the magistrate will give you a chance to ask
questions. At the close of the hearing, the magistrate will take the case under
advisement.
DECISIONS
After the contested hearing, the
magistrate will then file a written report to the Court. The clerk will mail
copies of the magistrate's report to the parties. This process will take
approximately 30-45 days.
After the report has been filed, you have
only fourteen (14) days to file an "objection" detailing the errors you believe
the magistrate has made. Send a copy of your objections to your opponent (or
his/her attorney) when you file them with the Court. If no timely objections are
made, the magistrate's report will be adopted as the final order of the Court.
Within fourteen days of the filing of the
report, a party may serve and file written objections to the magistrate's
report. If objections are timely served and filed by any party, any other party
may serve and file objections within ten days of the date on which the first
objections were filed. The objections shall be considered a motion. Objections
shall be specific and state with particularity the grounds of objection. Upon
consideration of the objections, the Court may adopt, reject, or modify the
report; hear additional evidence; return the report to the magistrate with
instructions; or hear the matter itself. On appeal, a party may not assign as
error the Court's adoption of a magistrate's finding of fact unless an objection
to that finding is contained in that party's written objections to the
magistrate's report. The Court may adopt any finding of fact in the magistrate's
report without further consideration unless the party who objects to that
finding supports that objection with a copy of all relevant portions of the
transcript from the magistrate's hearing or an affidavit about evidence
submitted to the magistrate if no transcript is available. In deciding whether
to adopt a magistrate's finding of fact, the Court may disregard any evidence
that was not submitted to the magistrate unless the complaining party
demonstrates that with reasonable diligence he or she could not have discovered
and produced that evidence for the magistrate's consideration. THE PARTIES MUST
MAIL COPIES OF THE OBJECTIONS OR RESPONSES TO THE OTHER PARTIES AT THE TIME THEY
FILE THE SAME WITH THE CLERK OF COURTS.
The Municipal Court Judge will review the
record and rule on the objections. The parties will be notified of the decision
of the Court.
You can appeal the Judge's ruling to the
Warren County Court of Appeals. At this point, however, the matter gets more
complex and costly, requiring a transcript of the original hearing (You pay for
it.), and, possibly, the services of an attorney. Before taking this step, you
should consult with an attorney as to the merits of your arguments.
PAYMENT OF
CLAIM
If the defendant agrees to settle before
the trial, DO NOT sign a release dismissing the suit until you have received the
agreed-upon settlement.
SATISFACTION OF JUDGMENT
Once a judgment has been satisfied in
full, the Court requests the judgment creditor to file a document with the Court
stating that judgment has been paid in full.
COLLECTING A JUDGMENT
No court (not just Small Claims)
automatically forces a debtor to pay. The Court has confirmed that the debtor
has a legal, enforceable obligation to pay, but then it becomes the creditor's
job to collect that debt.
DEFAULT
JUDGMENTS
Small Claims cases are often over even
before they begin. The plaintiff appears at the initial hearing but the
defendant does not. The magistrate grants the plaintiff a default judgment. A
copy of the default judgment entry will be sent to the Plaintiff by the Court.
This judgment is just as enforceable as it would have been had the defendant
shown up, contested the case, and lost after putting on a spirited defense.
However, there is one important
difference. When the defendant actually appears in Court, he or she is notified
in writing by the Court of the outcome of the case and that there is an
obligation to pay the judgment amount to the plaintiff.
The defendant in a default case does not
receive anything from the Court indicating the outcome of the hearing, the Court
assumes he or she understands the outcome of the suit. The Court does nothing
(no notices, letters or phone calls) to inform the defendant that he/she has now
become a judgment debtor or even to confirm the amount of judgment.
So, if you want to be sure the defendant
fully understands what has happened and that you are now a judgment creditor, it
is your job to notify him/her and request payment.
If the judgment debtor fails to pay, then
your only hope of the collection lies with a more formal procedure. You may file
to garnish the defendant's wages or attach the personal property or bank account
of the defendant. Each of these collection steps will require you to return to
the clerk, fill out more forms and pay more fees. (IT CAN BE A LENGTHY PROCESS,
BUT IT CAN WORK.)
Before you collect from the reluctant
debtor, you must first know something about his/her finances. If you are already
familiar with where the judgment debtor banks, works, lives, does business,
etc., you may know enough to proceed with collection.
LIST OF ASSETS AND LIABILITIES
In addition to the standard judgment
debtor exam available to all judgment creditors, there is an additional,
simplified process which may save considerable time. You may, therefore, wish to
try this before moving to the more time-consuming judgment debtor hearing
process.
- Wait until thirty (30) days after the
judgment.
- Go the Clerk's office and ask for a Request for
Judgment Debtor Examination (this will cost you $10.00 for certified mail or
$30.00 for personal service). Fill in the form with your case number, the name
of the judgment debtor, and your name, etc.
- The Clerk will mail this form to the judgment debtor
asking for a list of his/her assets, liabilities, and personal earnings.
- The judgment debtor will be given one (1) week to
return the information to the Clerk. He/she will be informed that failure to
respond within the week could result in a charge of contempt of Court.
- When the list of assets and liabilities is filed
with the Clerk, she will then send a copy of it to you.
- If the judgment debtor fails to return the list to
the Clerk, you will be notified to provide the Court with the defendant's date
of birth and social security number so that an arrest warrant for contempt of
Court can be issued. The police will not arrest any person without knowing the
wanted person's social security number and/or date of birth.
JUDGMENT DEBTOR EXAMS; PERSONAL
EXAM
The judgment debtor examination is the
Court's way of helping judgment creditors learn about the judgment debtor's
assets -- information which then can be used to collect the judgment. While the
by-mail process may be more convenient, you may find the information you receive
is not specific or complete enough to enable you to proceed with collection. At
this point, you may want to consult with an attorney to aid you in the process
of a personal exam.
GARNISHMENTS
If the debtor is employed, has a checking
account or savings account, or is a landlord, you may "garnish" the employer,
the bank, or the tenants.
Garnishment is a process which lets the
creditor claim and take money owed to the debtor by another person. For example,
the typical employee is paid one or two weeks after actually earning his/her
wages. The employer is holding the employee's money during that time and,
through the garnishment process, may be required to pay a portion of these wages
to the creditor. Garnishment as a process consists of the following:
- Mail a fifteen (15) day notice of intent to garnish
to the judgment debtor. (Forms are available at the Clerk's office.) This
notice is not needed for a bank account or tenant. You will need to provide
the Court with proof of mailing of this notice at the time the actual
garnishment is filed with the Clerk.
- After the fifteen days have passed and no money has
been received, go to the Clerk's office and complete a garnishment form. In
all cases, you will need the correct mailing address for the garnishee
(debtor's employer, bank, or tenants). There is a $100.00 filing fee for a wage
garnishment, a $50.00 filing fee for a bank garnishment and other types of
garnishments. All additional filing fees paid to the Court may be added to the
judgment. You will also be asked to provide the garnishee with a $1.00 fee.
This $1.00 fee cannot be added to the judgment.
- A week or two later the Clerk should receive a check
from the garnishee. The Clerk's office will deposit the check and hold it for
a week, and then reissue the check to you.
LIMITS
AND EXCEPTIONS
A wage garnishment can occur only once
every thirty (30) days, regardless of the number of creditors or number of
debts. This means you will have to renew a garnishment (REPEAT THE ENTIRE
PROCESS) on wages each month until the judgment is satisfied. This is not the
case, however, with garnishments on the bank accounts or tenants, which can be
done more frequently.
Income from sources such as Social
Security, Welfare, Workman's Compensation, Unemployment Compensation, etc., are
exempt and protected from garnishment. It is also possible for the judgment
debtor to block any action you take against a bank account if it can be shown
the money in the account came from these types of sources (public assistance).
The amount that can be garnished from any
employer (by creditors collectively at one time) is regulated by law. Creditors
cannot attach the debtor's entire paycheck and the most creditors can ever
obtain during any one period is 25 % of the debtor's take-home pay.
EXECUTION
If the judgment debtor fails to pay within
thirty (30) days of the judgment, the judgment creditor may, through the Court,
seize the debtor's property, sell it, and collect the judgment from the
proceeds. This process is referred to by the law and attorneys as "execution on
property".
Although the concept is rather simple, the
laws on execution have made it a bit more complicated. Again, you may want to
consult with an attorney before going through this procedure. As explained
below, execution against personal property to collect a Small Claims Judgment
will usually make sense only when the property involved is worth considerably
more than the amount of the judgment.
EXEMPTIONS
Ohio law defines certain property as being
"exempt" from execution. Prior to processing an execution, the judgment creditor
must have some reasonable expectation that the property to be attached and sold
is not exempt.
In the case of personal property
(household goods, cars, jewelry, etc.), the exemptions are defined in terms of
the debtor's "interest" (in dollars) in that property.
For example, the law exempts the debtor's
"interest", not to exceed one thousand ($1,000.00) in one motor vehicle. That
means if the car is attached and sold, the first thousand dollars ($1,000.00) of
the sale proceeds must go back to the judgment debtor. Thus, a judgment creditor
seeking to collect a $500.00 judgment would gain nothing at all from an
execution on a car which ultimately sold for $999.00. The judgment could not be
collected unless the car sold for at least $1,500.00.
If you have any questions as to whether a
particular item of property you intend to execute upon is subject to an
exemption, you should consult an attorney. An additional obstacle to collecting
your money through execution could arise if the judgment debtor owes money on
the property to someone else (for example a bank). In that case, you could be
second or third in line when it comes time to collect from the sale proceeds.
The proceeds from the sale are divided as follows:
First: Any exempt amount claimed by the
debtor;
Second: Paying costs of the sale itself;
Third: Paying the judgment;
Fourth: Anything leftover goes back to the
debtor.
LIENS
A "lien" (sounds like "lean") can be
placed on an real estate owned by the judgment debtor, if the real estate is in
Warren County and was owned at the time the case was originally filed. The lien
must be renewed every five (5) years. The lien holder Judgment creditor will
recover the amount of the judgment when the property is sold. The procedure for
filing a lien is fairly simple:
- Go to the Clerk's office and ask for a Certificate
of Judgment. There will be a $10.00 fee due at this time. The Clerk's office
will mail the certificate to you once it has been completed.
- Take the certificate to the Clerk of Common Pleas
Court at the Warren County Courthouse, 500 Justice Dr., Lebanon, Ohio. There
will be a filing fee for this filing.
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