Everything you need to know about
SMALL CLAIMS COURT
No one likes a disagreement, and no one likes the thought of having to go to court to resolve it. However, when a dispute has come to an impasse, Small Claims Court is a reasonable alternative. Though going to court sounds scary, Small Claims Court is relatively quick, easy and inexpensive if you just follow the four C's:
On the pages that follow, each of these steps is carefully described.
Special Note: The information in this pamphlet covers the fundamentals of pursuing a small claims action in the state of Arizona, and was researched and specifically compiled for individuals in Tucson, Arizona. The information is true and correct to the best of the writer's and distributor's knowledge as of June 2010. The writer does not warrantee the information contained in this pamphlet as either current or perfectly accurate. This pamphlet is not to be construed in any manner as giving legal advice, interpreting the law or being a legal authority. This is a guide to the procedures and etiquette only, and applicable law should be thoroughly researched before engaging in any form of litigation. Please check all applicable laws and check with the clerk of the court to insure that you follow all procedures accurately.
(Special thanks to Mark Chernoff, without whose hard work and enthusiasm this pamphlet could not have been produced.)
In order to resolve your dispute, you must first determine exactly what is being disputed. Often people get distracted by side issues instead of focusing on the real point of contention. DON’T MAKE THIS MISTAKE. It is important that you identify the real issues. You cannot generally successfully sue someone for being rude, unpleasant or unfair to you. So, in order to begin, you need to ask yourself: what has my opponent done or not done that I think I can sue him/her for?
Once the issues are identified you must ask the most important question in the whole process:
Is there a cause of action ?
Without a cause of action you have no case. A cause of action is a legal basis for filing suit. In other words you have to determine whether the law is on your side. Of course you believe you are right. However, every injustice does not have a legal remedy. Use one of the following methods of verification to make the determination:
• Research the law at the university or a public law library
• Consult the attorney ASUA Legal Services (if you are a U of A student)
• Consult a friend or relative who is an attorney
• Hire an attorney to research the issue
Some common causes of action are: breach of contract, violation of a statute (such as the Arizona Residential Landlord and Tenant Act), negligence resulting in property damage and/or personal injury. If you have no cause, you should not file a lawsuit. However, if you come to the conclusion that there is actually a cause of action, there is a step to take before continuing your pursuit of an action in Small Claims Court: Try to settle the dispute!
1. Write a letter informing your adversary of the law and providing specific and reasonable terms of settlement. Inform him or her that you will file suit in 10 days if there is not a settlement, OR
2. Call a community mediation service, such as the one run by Our Town Family Center: 323-1708 x 504 or firstname.lastname@example.org. Mediation is a dispute resolution process that tries to help people create their own solutions.
Settling is the least expensive, quickest way to handle a claim. In case you do have to go to court, it is important that you document your claim. Try not to negotiate over the phone or in person. Send letters, and send important ones by certified mail. If you do reach a verbal agreement, promptly document it in writing, sign it and have the other party sign it. Have receipts for all expenses, take photos, and if some important point or conversation cannot be documented, make sure you have witnesses. Photos, documents and witnesses are your evidence, and without them you have a weak case.
Should I file my case in Small Claims Court?
Finally, before deciding to go to Small Claims Court make sure that your cause may be heard there. The court only has jurisdiction to hear cases that do not exceed $2,500 (exclusive of court costs), and there are a variety of matters the Small Claims Court is specifically prohibited from hearing (see the checklist at the end of the document). In addition, there is no appeal from Small Claims Court decisions. So whatever happens, you are stuck with the judge’s decision -- but, then, so is your opponent.
Now that you have determined that the law supports you and that your adversary is not willing to come to a reasonable settlement, it is time to draft and file your complaint.
Drafting the complaint
A complaint form can be obtained from the clerk of the court at 115 North Church Avenue, the Pima County Justice Court. It can now also be obtained and filed electronically at: jp.co.pima.az.us.. Four sections in the form must be filled out:
The plaintiff's name, address, and phone number.
Defendant (the person you are suing)
Defendant's name, address and phone number.
The amount you are suing for and your cause of action (the reason you are suing).
Certificate of service
Your name, the date, and your signature, completed and dated the day you expect to complete service on the defendant.
See the materials at the end for a sample complaint.
Naming the Defendant
It is extremely important that you sue the correct person or company. Before you file your suit, make sure you know whom you should sue. Below is some information that may help:
•Individuals. If your lawsuit is against someone who is married, you must name that person's husband or wife as a defendant, too. This is because Arizona is a community property state. That means that most property acquired by a married couple during the marriage belongs to both of them equally. For example, wages earned and anything acquired with those wages is generally considered community property. If you do not name the spouse of the person you are suing in your lawsuit and you win, you will not be able to garnish the defendant's wages, or to collect your judgment out of any bank accounts or other community property. Therefore, even if the husband or wife has nothing to do with your dispute, you must name them as a defendant or you could wind up with a worthless judgment (one that cannot be collected). (See the Collection section for more information on this topic.)
If you don't know the name of the spouse or aren't sure whether the person is married, use the names Jane Doe or John Doe. For example, if you are suing Thomas Smith and don't know his wife's name, call her Jane Doe Smith. In this case, the defendants' names on the complaint form should read: "John Smith and Jane Doe Smith, husband and wife."
•Landlords. Often, when you rent an apartment or house, you deal with a manager or management company. If the management company is listed on the lease as the Landlord and signs the lease, then it is the proper party to sue. If the lease gives you a name and address for the property owner, that is the proper person to sue. If your lease does not give you this information, then, under Arizona Landlord Tenant law, you can sue the manager. However, an on site manager may not have any money to pay your judgment and may, therefore, be a bad choice to sue. If you want to file suit against the property owner but don't know the name and address, you can find it out by calling the County Assessor's office at 740-8636. If you give them the property address, they can tell you the name and address of the owner (or at least the address where the tax bills are sent). You can also obtain this information on-line at the Pima County Assessor’s website: www.asr.co.pima.az.us.
There are also two statutes that relate to service of the complaint on the property owner. They are A.R.S.§33-1309(B) (for out-of-state landlords) and §33-1322(D). Please refer to them before filing and serving your complaint. You can find the Landlord Tenant Act on-line at www.azleg.state.az.us/ars/ars.htm. Scroll down to §§33-1301 and following.
•Businesses. If your lawsuit is against a business, you must sue the owner. To find out who owns it, go to the City of Tucson Business License office at City Hall, 255 W. Alameda, 1st Floor. There you can look up the name of the business and see in whose name the license is held. That person, corporation, partnership or limited liability company is the owner of the business and the person / entity you should sue. Remember, if an individual owns the business, sue his/her spouse as well.
•Corporations and Limited Liability Companies (LLC). Go to this page on the website of the Arizona Corporation Commission: http://starpas.azcc.gov/scripts/cgiip.exe/WService=wsbroker1/connect.p?app=names-report.pa.
Type in the name of the corporation or LLC. You will be directed to a page that gives information about the entity, including the name and address of the corporation's or LLC's statutory agent. Every corporation or LLC that is incorporated or authorized to do business in this state must appoint what is called a statutory agent. This is a person or entity authorized to accept the service of lawsuits on the corporation's behalf.
For example, if you are suing XYZ , Inc., you go to the Corporation Commission’s website and find out that it is in good standing and its statutory agent is Jane White. The defendant in your lawsuit would be "XYZ, Inc., an Arizona corporation," but you would serve the complaint on Jane White, who would then pass it on to the appropriate person at the corporation. Do not name the statutory agent as the defendant! (See below for more information regarding “serving” a complaint.) When you fill out the complaint form, the heading under “Defendant” will read like this:
XYZ, an Arizona corporation
c/o Jane White, statutory agent
1234 E. Broad St., Mesa, AZ, 85231
If you have any questions about who to name as the defendant(s) or who to serve with the complaint, check with the ASUA Legal Services Office (if you are a UofA student) or a private attorney before you go any further!!!
Filing the Complaint
Now that you have figured out whom to sue, the complaint must be assigned a case number, be sealed by the clerk of the court and served. Sign the notice of service on the complaint form, then go to the clerk's window where you will be charged a filing fee of $33.00, and the clerk will assign the case number and stamp (seal) the document. Then you must serve the complaint. Remember to ask for and file a Day of Trial Preference Form with your complaint. This will allow you to state a preference for location and weekday or weekend hearing if your case goes to trial.
Serving the Defendant
The law requires that the defendant be served with the complaint, so the defendant will have notice that an action has been filed against him or her. The easiest method is service by certified mail, return receipt requested. This can be done at any post office, just pick up the forms from the clerk of the court. (This method of service is available only for Small Claims Court cases.) All you need is the name and address of the defendant. Do not forget to put the complaint number on the form, and check the box for restricted delivery.) The postal service will only give the Defendant the letter after the Defendant signs the green postcard attached to the envelope. This postcard will then be mailed back to you.
After you receive the receipt (the green postcard), you must file it with the court, either in person or by first class mail. If the Defendant refuses or fails to sign for the certified mail, you will have to serve him or her using a process server, who is a person registered with the court to do this job. The clerk at the information desk of the Justice Court has a list of all the registered process servers in the county. You should call around and compare rates. If you can tell the process server the best time to find the defendant at home or work, it will cost you less. Generally, if the defendant can be served on the first or second try, you should expect to pay between $50 and $70. This cost will be added to your judgment if you win your lawsuit, along with the cost of filing the complaint.
If you have first tried to serve the defendant using certified mail and have received the complaint back from the post office, you must take the unopened envelope to the clerk's desk at the Justice Court. The clerk will open the envelope and issue a substitute summons, which can then be served on the defendant by the process server.
Whatever method you use, you must serve a separate copy of the summons and complaint on each defendant, including husbands and wives. Just photocopy the summons and complaint, and send the original to one defendant and the copy to the other(s).
Whether you ultimately end up in court will depend totally upon how you and the defendant proceed after the action is filed. There are essentially five options.
1. You may settle out of court.
Upon being served with a lawsuit, some people will opt to settle out of court. If you do settle, you must contact the court and fill out and file a dismissal form, and if you settle after the defendant has filed an answer to your complaint (see item 2), you both must sign the dismissal form. However, make sure to collect the settlement before dismissing, or get a signed and witnessed document specifying the terms of the settlement. Otherwise, you may end up in the same court you started in, and out another $16.00 in filing fees.
2. The defendant may fail to answer your complaint.
The defendant has 20 days to respond to your complaint. The 20 days begins to run when the defendant signs the green certified mail postcard, if the defendant is served by certified mail (if the date is missing or illegible, the time begins to run when you file the return receipt with the court, so be sure and check the date when you get it back in the mail), or 20 days after he/she is served by a process server. The response is called an answer, and if the defendant fails to file one you only have to go down to the court on or after the 21st day and fill out a form called an application for default, asking to win by "default." You must mail this form to the defendant the same day you file it , and if he or she still fails to answer in 10 more business days, you will automatically win. You must then fill out another form requesting that judgment be entered in your favor. (Or you can fill out this form at the same time you file the application for default.) You may still have to have a hearing in front of a judge, but you will be the only one giving testimony.
3. The defendant could counterclaim and you could settle out of court.
When a defendant files an answer, he or she will have the option to file a counterclaim. This is a suit against you, usually one that involves the same transaction as your lawsuit (for example, if you sue your landlord for failure to return your security deposit, your landlord could counterclaim for damage she claims you did to the property). Just as the defendant originally had 20 days to answer your original action, you have 20 days to answer the counterclaim. Because settlement can take place at any time, you could still settle. Just remember to file the appropriate dismissal papers if you do (see item 1, above).
4. The defendant could answer and the case proceed to trial.
As noted above, the defendant has 20 days to answer. If he or she does so the court will assign your case a trial date. The trial will be held within 60 days of the answer.
5. The defendant could counterclaim and the case proceed to trial.
As noted above, the defendant has 20 days to answer, and with the answer, the defendant may file a counterclaim against you. You must answer the counterclaim within 20 days and then the trial date will be set for sometime within 60 days after that.
Remember, you can always settle your case right up to the trial date and even afterwards.
General rules for Small Claims Court
Small Claims Court is like no other court . There are no procedural rules, no rules of evidence, no motions, and there is no discovery. If you don't know what these are, don't worry, you don't have to know. Here, all the pomp and circumstance of the typical courtroom are eliminated.
In Small Claims Court the most important things to remember are to be prepared, wait your turn to speak, and be clear, concise, and simple. Your presentation should take no more than a few minutes.
Wait your turn There is nothing more irritating to a judge than having someone talk out of turn. She can only hear one of you at a time, and if you interrupt it is likely that you will be the one who gets ignored and ends up in disfavor with the judge. As the plaintiff, you will get to present your case first. Remember, you have brought this lawsuit and you have the burden of proof -- meaning you have to prove that the facts are in your favor. After you finish with your case presentation, it will be the defendant’s turn. Depending on how the hearing officer (the judge) handles the case, you may then get another turn to rebut any evidence the defendant presented.
Be prepared Make a chronological outline of the facts that support your case. Know the law that supports your position and how the facts fulfill the requirements of the law. Those are the facts to emphasize in telling your story. (See the Sample Case Outline attached at the end of this booklet.)
Have all the documents you wish to introduce to support your case in order, so you can easily hand them to the judge without having to shuffle through all you papers. If you want to keep your originals, take photocopies for the judge.
Introduce yourself Before you launch into your story, briefly introduce yourself to the judge, and in one or two sentences, summarize your case. For example: Your honor, my name is Jane Smith. I am a junior at the U or A, working on my degree in physics. I am here today because the defendant, who was my landlord, did not return my security deposit." Remember, you may have been living with this dispute for months, but the judge knows almost nothing about you or why you are there.
Speak clearly Enunciation and appropriate volume are important elements of this rule of thumb. However, the rule does not end there. Speaking clearly also means the thoughts and ideas you wish to convey must be expressed in a logical understandable manner. If they are not, you are just wasting everyone's time.
Be concise The judge is here to decide your case. If there is proof, give it. If there are aggravating factors, describe them. That is all you need to do. Do not repeat and restate the argument at every opportunity, the judge is capable of understanding and recalling if you are logical and clear. And remember, the judge is interested in facts, not emotions, and legal rights, not moral right. So, do not aggravate the judge by wasting time, cut to the chase.
Do not play lawyer Some judges like to deal with lawyers. However, Small Claims Court was designed to eliminate the need for lawyers in small cases. The judge will know the law, so rather than recite it and try to sound like a lawyer, just give the facts in a concise manner so as to highlight those that fulfill the requirements of law.
Minor details Dress appropriately: not in a suit, but conservatively and not in distracting clothing. Look and act as though you have respect for the court. Bring witnesses if you have them and receipts (if you have them) for all damages you plan to claim. Address the judge as “your honor” and your opponent and witnesses by their last names (i.e. “Mr. Johnson” and “Ms. Flores”)
This may very well be the hardest part of your Small Claims Court litigation. The court may enter judgment in your favor, and you may be entitled to compensation. However, the court will not collect for you. If a direct request for the money owed to you is refused or ignored, you will have to take further action in court to collect your judgment.
The statutes governing Small Claims Court have been designed to try to make collection of a judgment easier (see A.R.S. §22-524). At the time the judgment (decision) is given, the judge can order the losing party to undergo what is known as a debtor's examination. At that examination, the losing party (who is now a debtor) must provide the court with information about his or her assets and liabilities. This may give you information necessary to collect the judgment.
If the judge rules immediately after the trial, you should ask right then that he or she order a debtor's examination. If you receive the judge's decision in the mail, you may file a written motion (you can pick up a Motion form at the information desk). Once you have information about the defendant's financial situation, there are several paths you can follow:
Garnishment of Earnings
This is a collection tool that will only be successful if the defendant is employed. If you file garnishment papers the court will order an employer to retain a certain portion of the defendant's earnings and pay them to you. If the employer fails to do so, judgment can be entered directly against the employer, so there is usually no problem getting an employer to follow the order of the court. You can obtain the paperwork to begin the garnishment process from the information desk at the Justice Court.
Engaging in the actual garnishment procedure is not as complicated as it looks when you first get your hands on the paperwork. Instructions are provided, and essentially all that is involved is filling in the blanks and filing and sending off the papers. The first step is finding out where the defendant is employed (the debtor's examination can provide this information). Then you must file with the court the Summons and Writ of Garnishment. Then fill out the top portion of the employer's paperwork (this will only require your, the defendant's, and the employer's name and address) and send those papers to the employer ( referred to as the "garnishee" in the paperwork).
The defendant may ask for a hearing. In that case you must attend the hearing and explain that you were wronged, filed an action, you won and you want it enforced. If the employer refuses to effectuate the garnishment, simply ask the clerk for a Petition for an Order to Show Cause. The employer will have to appear before a judge, who has the authority to enter judgment directly against the employer. If judgment is entered against the employer a writ of execution is often helpful because employers usually have assets that will be subject to the writ (see below).
The law allows a judgment debtor (your losing defendant) to keep a certain amount of wages. The formula for determining how much money is taken out of each paycheck is the following:
1) the amount by which the after-tax wages exceed 30 times the minimum wage (currently $7.25/hr), or
2) 25% of after-tax wages,
whichever is less.
Example 1: Your defendant works 30 hours a week making $14/hr. After taxes, his weekly paycheck is approximately $315. To apply the formula, do the following:
1) 30 times the minimum wage = 30 x $7.25 = $217.50. His weekly wages exceed this amount by $97.50 ($315 - $217.50).
2) 25% of his weekly wages = $78.75.
3) The lesser of the two amounts is the amount the employer will withhold and send to you -- $78.75/week.
Example 2: Your defendant works 20 hours a week making $10/hr. After taxes, her weekly paycheck is approximately $150.
1) 30 times the minimum wage = $217.50. Her weekly wages are less than that. Therefore, you cannot garnish her wages.
Garnishment of Bank Accounts
The procedure for garnishing bank accounts is similar to garnishing wages (though there is a little less paperwork involved). If the Defendant has a bank account that contains more than $150, the bank, upon being served with the proper garnishment papers, will pay that money to you (up to the amount you are owed and minus $150, which the defendant gets to keep). This is not a continuing garnishment -- you get only what is in the account when the bank receives the paperwork. The problem here is that you need to know where the defendant has a bank account in order to garnish it.
Writ of Execution
The Writ of Execution is a much less complicated procedure. There is one form and the rest is left to the state. Essentially what happens is that the court authorizes a constable or sheriff to confiscate property from the defendant and auction it off to satisfy the judgment. However, this is easier said than done. There are limits on what kinds of property may be taken (see A.R.S. §§33-1121 through 1126) and how the constable may go about securing possession of the property. Thus, there is no guarantee that the execution of the writ will be successful.
Special Notes on Collection
Most noteworthy is that all the parties change names after judgment is entered. The plaintiff becomes the creditor, the defendant becomes the judgment debtor, and in a garnishment the employer or the bank becomes the garnishee. Also, it may be worthwhile to notify the defendant that you plan to institute garnishment or execution proceedings. The defendant may decide just to write a check, rather than to risk losing possessions or having an employer aggravated with the mountain of garnishment paperwork.
Use this to prepare your case and make sure you’re not forgetting anything important.
Review the law and determine that there is cause of action.
Make sure the matter is eligible for Small Claims Court, which means it does not involve:
• seeking injunctive relief
• actions for specific performance
• a claim of defamation, libel or slander
• action brought or defended on behalf of a class
• request for or involvement of prejudgment remedies
• forcible entry, forcible detainer or unlawful detainer (eviction)
• action against this state, its officers or employees of any city, county, or other political subdivision in their capacity
• damages sought exceeding $2,500.00, exclusive of court costs.
Attempt to settle.
File the complaint at the Pima County Justice Court, 115 North Church Avenue or on-line at jp.co.pima.az.us (Cost - $33.00).
File the day and location preference sheet at the time of filing the complaint.
Serve the complaint by certified mail or process server. Instructions are available at the courthouse.
If an answer has not been filed by the 21st day after service of the complaint, file for a default judgment.
If the defendant has counterclaimed, answer within 20 days of service of the counterclaim.
Compile copies of all the relevant statutes and cases.
Outline case and practice stating it clearly, concisely and in an organized manner.
Make arrangements to be absent from school, work, or secure baby sitter. Dress appropriately. Arrive early on the day assigned.
Ask the defendant for payment of the judgment.
Ask the judge to order a debtor's examination.
File for garnishment.
File a writ of execution.
See the next page for a sample Small Claims Division complaint.
PIMA COUNTY CONSOLIDATED JUSTICE COURTS115 N. CHURCH AVE., TUCSON, AZ 85701
2222 E. University
Tucson, AZ 85721
SMALL CLAIMS DIVISION
1888 E. Lane St.
Tucson, AZ 85700
NOTICE AND SUMMONS
TO THE ABOVE-NAMED DEFENDANT: SEAL
YOU ARE DIRECTED TO ANSWER THE CLAIM OF THE PLAINTIFF WITHIN TWENTY (20) DAYS
IN THE SMALL CLAIMS DIVISION OF THE COURT CITED ABOVE. IF YOU DO NOT APPEAR
AND DEFEND YOURSELF, A JUDGMENT MAY BE ENTERED AGAINST YOU. If you wish to defend
against the Plaintiff's claim, you must pay a fee at the time you file your answer.
Requests for reasonable accommodation for persons with disabilities must be made to the court by
parties at least three(3) working days in advance of a scheduled court proceeding.
Date Clerk, Small Claims Division
The defendant owes me $900 for the following reasons: She failed to return my security deposit, and did not account for it to me within 14 days in violation of A.R.S. §33-1321 .
Aug 1, 2002
Date Plaintiff's Signature
NOTICE TO DEFENDANT: If you contest this claim, you must write your Answer in the spaces below and file it in the Small Claims Division of the Court named above within twenty (20) days of the date of service of the Claim. You must also PAY A FEE at the time you file your Answer. Failure to file an Answer within the twenty (20) days may result in a judgment being entered against you.
I do not owe the Plaintiff because:
Date Defendant's Signature
CERTIFICATE OF SERVICE OF MAILING BY PLAINTIFF
I, , Plaintiff in this action, certify that a copy of this form was sent by Registered/Certified Mail, return receipt requested, to the Defendant named at the above-listed address on , 19 .
Date Plaintiff's Signature
CERTIFICATE OF SERVICE BY DEFENDANT
I, , Defendant in this action, certify that I have mailed or delivered a copy of this form to the Plaintiff at the above-listed address on , 19 .
Date Defendant's Signature
WARNING: YOU DO NOT HAVE THE RIGHT TO APPEAL THE DECISION OF THE HEARING OFFICER OR THE JUSTICE OF THE PEACE IN A SMALL CLAIMS COURT. IF YOU WISH TO PRESERVE YOUR RIGHT TO APPEAL, YOU MAY HAVE YOUR CASE TRANSFERRED TO THE JUSTICE COURT PURSUANT TO §22-504, SUBSECTION A, ARIZONA REVISED STATUTES, IF YOU REQUEST SUCH TRANSFER AT LEAST TEN DAYS PRIOR TO THE DAY OF THE SCHEDULED HEARING.
SAMPLE CASE OUTLINE
1. August 1, 2005: Signed lease for apartment at 1234 E. College, #44 with Jane Landlady. Lease required a $200 security deposit. (Give judge copy of lease.)
2. August 5, 2005: Moved into apt. Walked through with Landlady and signed checklist of problems/defects in the apartment. Apartment was quite dirty and had several items that needed to be repaired. Landlady promised to have items repaired, but never did. (Give judge copy of checklist and point out the relevant items on it.)
3. July 1, 2006: Gave 30-days notice in writing of intent to move out at end of July, as required by the lease. (Give judge copy of notice.)
4. July 31, 2006: Finished moving out and cleaning apartment. Returned key to Landlady along with a written request for the return of security deposit. Took photos of apartment demonstrating that it was clean and in good condition. (Give judge copy of request for return of deposit and photos.)
5. August 30, 2006: Received letter from Landlady stating that security deposit will not be returned because apartment in was not left in "good condition." Violation of A.R.S. 33-1321(C) because letter was not received within 14 business days of request and did not itemize damages. (Give judge copy of letter.)
1. Ask name, address, occupation and relationship to Plaintiff.
2. Did you help me move into the apartment in question on August 5, 2000? Did you see
the condition of the apartment before I moved my belongings in?
3. Was the apartment clean? Please describe what you saw.
4. Was there some damage in the apartment? Please describe the damage.
5. Were you present when I discussed the condition of the apartment with Ms. Landlady? What did she say, if anything regarding repairs that would be made?
I did everything required of me under the law.
Jane Landlady did not comply with the law by failing to give me notice within 14 days and failing to itemize the damage she claims I did to the apartment.
Therefore, I am entitled to a judgment of $600.00, which represents the return of my security deposit, plus two times the amount of the deposit as damages, as required by A.R.S. 33-1321(C).
GOOD LUCK !!!