Small Claims

Small claims court is a special court where disputes are resolved more quickly and inexpensively than in other court proceedings. The rules in small claims court also are simpler and less formal. For this reason, many people feel that they can handle their legal matters without an attorney in small claims court. Even if you do not intend to hire an attorney to represent you at trial, you may wish to contact an attorney for advice about your legal rights. An attorney may be able to advise you whether you have a valid claim or defense, about the types of evidence you will need to prove it, and may even be able to assist you in settling your case. If you cannot afford an attorney, there are organizations that may be able to assist you. Lastly, if you win your case and are represented by an attorney, you may be entitled to statutory attorney fees.

Types of Claims

The three most common types of small claims cases are: (1) civil actions where the amount claimed is $5,000 or less ($10,000 in Illinois), if the actions or proceedings are for money judgments only, or garnishment of wages; (2) actions for eviction regardless of the amount of rent claimed; or (3) replevins (return of personal property, if the property claimed does not exceed $5,000, for return of personal property that was the subject of a lease or credit from a dealer, when the amount financed is $25,000 or less).

Two less common types of small claims cases are: (1) return of earnest money for purchase of real property, and (2) action on an arbitration award for the purchase of real property.

Initiating Suit

You will first need to decide where you should file the small claims action. Eviction action should be filed: in the county where a defendant resides; in the county where the rented property is located; or in the county where a written lease was signed.

Return of earnest money actions should be filed: in the county where a defendant resides; in the county where the real estate is located; or in the county where the purchase contract was signed. Actions for replevin (return of personal property) should be filed: in the county where a defendant resides; in the county where the personal property is located; or in the county where the claim arose. For consumer replevins claims: where the customer resides or is personally served; where the collateral securing a consumer credit transaction is located; or where the customer sought or acquired the property, services, money or credit which is the subject of the transaction or signed the document showing his or her obligation under the terms of the transaction. Arbitration actions for the confirmation, vacation, modification or correction of an arbitration award should be filed: in the county where a defendant resides; in the county where the real estate is located; or in the county where the claim arose.

Next you will need to complete the Summons and Complaint and make copies for each defendant. Take the original and copies to the Clerk of Court’s office for filing and payment of the filing fee. You will have to pay the Clerk of Court a fee to file your Summons and Complaint. This small claims filing fee is set by state law. This and certain other fees may be charged against the other party if you win your case. However, if you cannot afford the filing fee, you may complete the Waiver of Filing Fees and Affidavit of Indigency. If the court finds that you cannot afford to pay, the court may waive the filing and service fees. Next you will have to arrange for and make payment for service of the summons and complaint on each of the defendants. Additionally, if you want to require a witness to come to the trial, you have to issue a subpoena. The subpoena must be served in the same fashion as the summons and complaint, along with a witness fee which includes mileage.

Trail Process

The first court date is called the “Return Date”. All parties to the suit are required to appear in court. (Note: Some counties require only a written response or a telephone call). At the return date you must provide proof that the defendant(s) was served with the summons and complaint. If service has been unsuccessful, the court will adjourn or continue the matter to a later date for completion of service. If the defendant(s) does not appear, the Court will grant a default judgment (assuming that service has been completed). A default judgment basically means that you have won the case because there is no dispute from the other party.

If the defendant(s) appears and contests the matter, the Court will set a date for a hearing. At the hearing, both parties present their evidence and the Court Commissioner will make a decision. (Note: Some counties have the hearing held by a Judge, not a Court Commissioner.) This decision becomes final within 11 days if given orally, and within 16 days after the decision is mailed, if in writing. A written decision must be mailed within 30 days of the Hearing.

Either party has the right to appeal the ruling. Instructions of how to appeal are mailed along with the written decision. Specifically, you must make a demand for trial in writing and within 10 days of the oral decision, or within 15 days of the mailing of a written decision. You may also request a jury trial, but appropriate fees are applicable.

Winning is Half the Battle

After you have obtained your judgment, won the case, now you have to attempt to collect. This process can be more painstaking than the actual trial. This is so because debtors will often drag out the process and force you to take the matter back to Court to collect.

In Wisconsin, after you obtain a judgment, the Judge will order the defendant(s) to complete a Financial Disclosure form and mail it to you. This form discloses all of the defendant(s) finances and assets and debts. This completed form must be sent to you, the clerk or in the alternative, the judgment is to be paid within 15 days from the date the judgment is entered. If the defendant refuses to comply with such, you will be forced to pursue other post judgment collections actions such as garnishments and attachments. If this is the case, it is advisable to seek the assistance of an attorney rather than a collection agency. The reason being, attorneys can initiate suit whereas collection agencies are not licensed attorneys. Additionally, you may be able to recoup a portion, if not all of your attorney fees for collection of the judgment through certain collection actions.