Small Claims Court Procedures
The Habersham County Magistrate Small Claims Court handles money claims under $15,000. A person may file a claim in Magistrate Court with or without an attorney. You may have an attorney represent you if you choose; this would be at your own expense. The court does not appoint attorneys for civil cases. Either a person or a business may be sued. See the section "To Sue or Not To Sue" for information on suing a business.
Here are some examples of typical lawsuits filed in the Magistrate Court:
- Mr. Smith bought a TV from a local store. The next week the set would not work. The store refused to give him a new set or his money back.
- Ms. Jones paid a security deposit when she moved into her apartment. Although she complied with the lease and did not damage the apartment, her landlord will not return the security deposit.
- Mr. James was fired from his job. He claims the company owes him one week's pay. The company will not pay him.
In each example, a person can file suit and ask for money damages.
To Sue or not to Sue?
The first step is deciding whether to sue. Remember, you must prove that the person or business you are suing owes you something. Do you have some proof of the debt such as a receipt, note, bill of sale, warranty or a witness? In deciding to sue, consider whether you have any evidence. In addition, if you sue an individual, the defendant must be a resident of Habersham County. If you sue a corporation, the business must be in Habersham County or the registered agent for the corporation must be located in Habersham County. If you sue a sole proprietor of a business, the sole proprietor must be a resident of Habersham County. The court or the clerks cannot advise you on who to sue or if you have a good claim.
How to File a Small Claims Case
To begin the process of filing a small claims case, you must first fill out a Statement of Claim form. On this form, you will put the name and address of the person or corporation you are suing, state the exact amount of money you are suing for and explain why you are suing.
You may represent yourself, act as an agent for your corporation, or you may sue on behalf of a minor should you be the guardian. However, you cannot represent someone else if you are not an attorney. In addition, you must put your name, mailing address, and telephone number on the claim form. This is important because the court will use this address to send you notice of the date and time when your case will be heard by the Magistrate if an answer is filed by the defendant. Your case will be dismissed if the court cannot locate you.
In order for the court to pass judgment in your case, you have to sue the correct entity (i.e., person, corporation). The person you sue is called the "defendant."
If the defendant owns a business which is not incorporated and your claim is against the business, you may sue where the owner resides, regardless of where the business is located (i.e., John Doe dba John's Grocery). You can usually find out the exact trade name as it is registered through the Habersham County Clerk's Office, First Floor, 555 Monroe St., Clarkesville. You can personally go to the record room and look up this information.
If the defendant is a corporation, you must sue the corporation rather than someone who works for the corporation. Remember, you must sue a corporation in the county where it is doing business or where it is incorporated. You may also sue a corporation in the county where the registered agent is located. (The registered agent is the party who should be served for the corporation). To verify if a business is incorporated and to obtain the registered agent's name and address for the corporation, contact the corporation's listing office of the Secretary of State at 404-656-2817.
Where to File
You may personally file or mail the claim form to the Magistrate Court of Habersham County, located at 295 Llewellyn St., Clarkesville. Claims against defendants residing outside the state of Georgia are usually filed in the state where the defendant is located. You should consult an attorney regarding these cases.
Notice to Defendant
The Sheriff's Office will serve the defendant with a copy of the complaint and summons that has been filed. The papers will inform the defendant(s) of the nature of your suit. The defendant has thirty (30) days from the date that he or she was served with the complaint in which to answer the complaint. If the defendant fails to file an Answer to the Complaint within 30 days, law does permit the defendant an additional 15 days in which he/she can file an answer (totaling 45 days). Each defendant must pay costs which total the same costs the plaintiff paid when filing the complaint. If the defendant answers the claim, the court will notify all parties and their attorneys of the trial date by certified mail.
The defendant is allowed to file a counterclaim against the plaintiff. If the defendant makes such a claim, it must be stated in the answer that is filed. A copy of the answer/counterclaim will be mailed to the plaintiff. The plaintiff does not have to answer a counterclaim until the actual court hearing. If the defendant's counterclaim is for more than $15,000 in actual damages, the case may be transferred to a higher court.
Preparing for a Hearing
Although the Magistrate Court is a people's court, rules of evidence are still applied when presenting a case. The court will not accept affidavits or letters which are considered "hearsay." The judges or clerk of this court cannot tell you how to try your case; however, the clerk can assist you in preparing your paper work. While waiting for trial, you should gather all your documents (receipts, repair bills, warranties, etc) and have them ready. If you have witnesses, you should notify them of your court date. Should a witness refuse to come to court, you may request a subpoena for his or her appearance. To do this, you must go to the Magistrate Court and give the Court the name and address of your witness or witnesses. The cost of a subpoena is $2 each.
Settlements Out of Court
The legislature requires the court (judge) to have the parties attempt to negotiate a settlement one more time before the hearing. If a settlement is reached in your case, the terms of the agreement should be put in writing. If you settle your case and the defendant is willing to pay you on a weekly, bi-weekly or monthly basis and this arrangement is acceptable with you, you should ask the court for a consent judgment form. This form will enable you to put the terms of the agreement in writing with both parties' signatures and the judge's signature. If the defendant does not work, have money or assets, you may not be able to collect on your judgment. The court cannot force the defendant to pay the monies owed!
Civil trials are held most Fridays at 9 a.m. with the exception of the first Friday of each month. The trials are in the main courtroom of the courthouse on the second floor. It is very important to appear on time with all necessary evidence and witnesses. If you appear late, or if you fail to appear, you may automatically lose your case. Your testimony is usually essential in proving your case.
After the court calls the calendar and determines the length of each case, the parties are excused for a few minutes to attempt to negotiate a settlement before the judge hears the case. You should make an earnest attempt at reaching a settlement. Remember, you are the one most familiar with your case, not the judge. It would be more conductive to reach a settlement of your own rather than the judge make a decision that is not in your favor.
The plaintiff has the burden of proving to the court the liability of the defendant and the amount of damages claimed. Therefore, the plaintiff will have the first opportunity to present his or her case, as well as present any evidence or witnesses. After each of the plaintiff's witnesses have testified, the defendant may ask the witnesses any questions pertaining to their testimony. After the plaintiff presents his or her case, the defendant may then present evidence and testimony to support his/her case. The plaintiff may also ask the defendant and his witnesses questions relative the their testimony.
Remember, you must ask questions and not make statements or be argumentative even if you do not agree with the testimony! After all the evidence has been presented, the court will consider all the relevant evidence and make a decision. Once the judge has made a decision, the clerk will prepare the judgment in writing, the judge will sign the judgment and you will be mailed a copy of the judgment.
If the defendant does not answer the complaint within 45 days from the date of service and the damages are liquidated (i.e, note, account), a judgment may be rendered without having the parties appear in court. This is not done automatically in Habersham County but must be requested in writing. If a court hearing is scheduled and the defendant fails to appear, the plaintiff may automatically receive a judgment. In both cases, this is called a judgment by default. If the plaintiff receives a judgment by default, it is usually for the full amount of the suit plus the court cost paid to initiate the action. If the claim is for unliquidated damages (i.e., auto accident), the plaintiff will have to prove the amount of damages in court to receive a default judgment.
Collecting the Judgment
In many cases collecting the judgment is harder than proving a case in court. THE COURT DOES NOT COLLECT THE JUDGMENT FOR YOU. If you receive a judgment and you are not voluntarily paid, there are several methods of collection the law provides (provided that the party is not indigent). Upon receiving a judgment from the court, the following methods of collection are available to you.
- You may request that the court issue a Fieri Facias (fifa). The fifa (proof of your judgment) once issued places a lien against the losing party and any property he/she may own. The cost for issuing and recording the fifa on the General Execution Docket is $9. You may also take the fifa and have it recorded in any county in Georgia. If you need to record the fifa outside the state of Georgia, you should consult an attorney.
- You may file a garnishment against wages or a bank account. Garnishments filed against wages are filed in the county where the defendant is employed. Garnishments filed against a bank account should be filed in the county where the bank is located.
- You may also levy against real and personal property through the Sheriff's Office. This process is started by requesting a fifa. The Sheriff will require the fifa to levy against any personal property. You should also contact the Sheriff's Office for cost and an appointment. If you want to levy against real property, you should contact an attorney for the procedure.
- You may also elect to turn your judgment over to an attorney or collection agency for collection.
Important Things to Remember
- If you are involved in a small claims suit and your address changes, you should notify the court in writing of your new address. The court notifies you of your hearing date by regular mail. The Magistrate Court was designed for you to represent yourself. However, you may opt to hire an attorney to represent you. Once a court date has been set, continuances are granted by individual merit.
- It is very important that the correct party is sued. If there are any doubts as to who you should sue, you should consult an attorney.
- The court cannot give advice on who to sue. The court may assist with filing out the necessary forms.
- The court cannot force the losing party to pay. Keep in mind that you may not be able to collect on the judgment.
- Finally, it is important to remember that you have been given basic information for suing in the Magistrate Court. Some cases require more detailed instructions and preparation than what you may have read. If you have any questions that do not require legal advice, the office will be happy to assist you. The office is open Monday through Friday, between the hours of 8 a.m. to 5 p.m.