Small Claims Court

May 18, 2015

Many of you reading this article may have at some point been involved in a small claims process, know someone who has, or maybe even thought about bringing a small claims case to court. In any case, the information and terminology below is useful in understanding Florida’s Small Claims Court procedures: A small claims case consists of an individual, known as the plaintiff, who files a lawsuit in county court in an attempt to settle a legal dispute for an amount that does not exceed $5,000, excluding costs, interest, and attorneys’ fees. The individual being sued is known as the defendant. Most courts provide the forms necessary to commence a small claims legal action.

Statement of Claim. The small claims version of a complaint is called a Statement of Claim. The lawsuit is commenced when a statement of claim is filed with the clerk at the courthouse in the appropriate county. The following scenarios determine an appropriate county and or location:

Where the contract was entered into,

If the suit is on an unsecured promissory note, where the note is signed or where the maker resides,

If the suit is to recover property or to foreclose a lien, where the property is located,

Where the event giving rise to the suit occurred,

Where any one or more of the defendants sued reside,

Any location agreed to in a contract,

In an action for money due, if there is no agreement as to where suit may be filed, where payment is to be made.

Filing Cost.  The next logical questions is how much does it cost to file a lawsuit in small claims? The following is the fee schedule for small claims:

Claims of less than $100                                    $55

Claims of $100 to $500                                      $80

Claims of $500.01 to $2,500                              $175

Claims of $2,500.01 to $5,000                           $300

Summons. When the plaintiff files the lawsuit with the court, the defendant will subsequently be served a summons by a sheriff. The summons is the document that will notify the defendant of a day and time to appear in court for a pretrial conference. If the defendant has intentions to countersue the plaintiff, he/she must file the countersuit at least 5 days prior to the pretrial conference.

Settlement and Stipulation.  On the day of the pretrial conference, the judge will call the names of the parties (plaintiff & defendant), and will instruct them to follow a mediator into a room. The parties will sit across from each other at a table and the mediator will sit at the head of the table. The mediator does not have the authority to make rulings or decisions with regard to the case. The mediator’s role is to be neutral and assist the parties to arrive at a settlement. If the parties reach a settlement, the mediator will include the terms in an agreement called a stipulation. The stipulation will be brought to the judge who will sign it and thus will become an order.

Setting a Trial. If the parties cannot reach a settlement, the mediator and parties will go back into the courtroom where the judge will set the case for trial. The court shall set the case for trial not more than 60 days from the date of the pretrial conference. The trial will be a bench trial, meaning that the judge will hear facts and evidence and will rule based on same. If the plaintiff wants a jury trial, he/she must request it upon commencement of the lawsuit or by the defendant within 5 days after service of notice of suit or at the pretrial conference, if any. Otherwise a jury trial shall be deemed waived.

Standard of Proof. The trial in small claims applies the standard of proof known as the preponderance of the evidence. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence—in other words, convincing the judge that you are at least 51% right. It is a lesser standard than what most people recognize from criminal cases where the beyond a reasonable doubt standard is used.

Judgment. If the plaintiff does not meet his/her burden, the judge will dismiss the case and the defendant will not have a judgement against him/her. However, if the plaintiff meets his/her burden and convinces the judge to rule in his/her favor, the judge will give the plaintiff a judgment and will sign it, ordering the defendant to pay the amount that will be specified in the judgment as well as the plaintiff’s court costs and fees.

Additionally, once the plaintiff (now known as the judgment creditor) receives the judgment, the judge will order the defendant (now known as the judgment debtor), to complete Form 7.343 (a Fact Information Sheet) within 30 days of the order (judgment) or other such reasonable time determined by the court. Form 7.343 can be obtained in the courthouse directly from the clerk.  The form contains financial questions, wherein the judgment creditor attempts to obtain information from the judgment debtor in an attempt to collect on the judgment. Under Rule 7.221 (b) of the small claims rules: The judge, at the request of the judgment creditor, shall order a judgment debtor to appear at a hearing in aid of execution at a time certain 30 or more days from the date of entry of a judgment for the purpose of inquiring of the judgment debtor under oath as to earnings, financial status, and any assets available in excess of exemptions to be applied towards satisfaction of judgment.

If the judgment debtor does not possess assets, and does not have funds in a bank account, the judgment creditor may attempt to garnish the judgment debtor’s wages;  this means that the judgement creditor can obtain a court order telling employer to withhold up to 25% of judgement debtor’s paycheck and forward the money to judgment creditor.  If the judgment debtor is unemployed, the judgment creditor will have, what is known as an empty judgment. The judgment creditor will not be able to collect any money or attach the judgment as a lien on assets because there is no money or assets available to satisfy the judgment.  However, it is important to know that a judgment remains in the court records for 20 years. That means that the plaintiff may attempt to collect on the judgment for 20 years.

Finally, if you decide to represent yourself in small claims court, you should consider consulting with an attorney to better advise you with your preparation. An attorney can advise you with steps, deadlines, options, and consequences. I hope this has been educational and good luck if you find yourself in small claims.