Small Claims court is meant to be easy and cheap (when compared to “regular” civil court). However, small claims court is not as simple and cheap as it could be.
An advantage of the small claims court is that you do not need a lawyer as lawyers cannot represent anyone in small claims court. It costs less to start a lawsuit, the process is streamlined, and your time in front of a judge or commissioner is usually just a few minutes. (Though you may wait an hour before your case gets heard.)
At most California small courts you can calendar a hearing on anything, using the SC-105 form. You can calendar a “motion for further hearing on charging order” and submit your authorities (claims and/or proof) in that. Although there is no such thing as a “further hearing” this works in many small claims courts. In California, the simple and free SC 105-motion, the judge has the option of not putting oral argument on the calendar and simply ruling on the papers – which they might do and save you a future trip to the court.
Calendaring motions in small claims has always been tricky. The problem is that the clerks insist on using the SC-105 process but then the motions get in front of the judge, and some judges may deny it.
To start a small claims case, you pay the court a small fee, and usually pay to have your debtor served. That is usually all it costs. You do not have to dress up in small claims court unless you want to, but do not be a slob. Parking is often free at small claims courts. The forms are standard and easy to complete. Sometimes you can fill out the PDF forms on your computer.
There are drawbacks to using a small claims court including a restriction on performing pre-trial legal actions such as discovery. There are limits on what kinds of situations you can sue on, and how much you can ask for.
A small claims judge can decide only monetary amounts and sometimes demand that properties be returned to you. Also, if your small claims case is appealed by the debtor (they later ask the court to consider tossing out your judgment) the defendant can usually have a lawyer represent them in appeals court.
If the amount the debtors owe is less than $300, consider not suing them, at least not for the reason of getting your money back. It costs money to enforce a judgment – and the costs are not always recoverable.
If the amount the debtors owe is less than the money limit of the small claims court, then use the small claims court.
If the amount the debtor(s) owe you is less than twice the money limit of the small claims court, use the small claims court. The reason is that civil court is always more expensive, and if you need a lawyer, that costs a lot more. These additional costs are not always recoverable.
Small claims court is usually not available for evictions, or when the amount the debtor owes is too much, etc. In that case, to sue, you need to go to regular civil court.
Assuming Small Claims is the court for you, here are a few tips:
A) Have the defendant served by a registered process server, and personal service is best. Make sure your process server is bonded, and their bond should be recorded at the county recorder’s office.
B) Take care to know who you are suing before you sue them. Do they use other names, can you find where they live, etc?
C) Do not start enforcement actions until the time limit to appeal the judgment ends. Sometimes, enforcing a judgment too soon may remind the debtor to appeal the judgment.
D) Be aware of the judgment debtor’s bankruptcy status. If you learn that the debtor has actually filed for bankruptcy protection, stop trying to enforce the judgment, at least until you know for sure their bankruptcy attempt has failed.
Of course, winning your judgment is only the start of trying to collect your money. Contact the debtor by mail with a formal letter. Be polite and offer to work with the person on a payment plan or perhaps a settlement.
Settling may make sense as it saves you the costs, frustration, and delays of enforcement. Do not make any threats or harass the debtor in any way.
If you have time and patience, you can try to enforce the judgment yourself. Your court’s web site, the Internet, judgment articles, and other resources will give you ideas. You have to pay for every step, even if the step does not result in getting closer to getting your money back. To avoid the expense and hassle, find a judgment enforcer to recover your judgment.
If you wish to enforce your judgment yourself, your tools (that you must pay for) are discovery (to find the debtor’s assets), and garnishment or levy (where the Sheriff attempts to take the debtor’s assets).
To discover the debtor’s assets, you file forms and pay the court, pay a process server, and “compel” the debtor to appear in court and bring the documents you request.
You can also use the Internet – perhaps your debtor bragged about their new job on Facebook? Google your debtor. There are (too expensive?) web detective sites too. Sometimes public records such as past bankruptcies, property records, and this can give you clues.
Before you can pay to grab a judgment debtor’s asset, you must know the details about the asset. For bank accounts, you need to know which bank the debtor uses. To garnish wages, you must know their employer.
To levy the judgment debtor’s assets, you pay for a Writ from the court, then pay the Sheriff and sometimes a process server, to attach the debtor’s bank or income source.
You can also record a lien on a debtor’s current or future property, but that lien may or may not get you paid. If your first attempts to enforce your judgment fail, consider finding a judgment enforcer. No judgment enforcer can guarantee they can recover money from a debtor, but they only get paid for success, so they will try.
If you do collect enough money from the debtor to pay you what is owed, make sure to file a notarized Satisfaction Of Judgment with the court.