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Small Claim in Morgan County of Georgia
1. INTRODUCTION
The County Magistrate Court handles civil claims under $15,000.00. A Magistrate Judge holds an informal hearing to listen to and decide each case. Any person may file a claim against a person or business in Magistrate Court without an attorney, or you may have an attorney represent you if you choose. However, this will be at your own expense. The Court does not appoint attorneys for civil cases.
Below are 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 had a posted warranty that it refused to honor.
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, however, the company will not pay him.
In each example, a person can file suit and ask for money damages. Keep in mind that generally, anyone in America can sue anyone else for just about anything, but winning the lawsuit and actually collecting money for your injury is an entirely different matter.
2. 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, 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 is an individual they must be a resident of the County. If you sue a sole proprietor of a business the sole proprietor must be a resident of the County. If the Defendant owns a business which is not incorporated (a sole proprietorship), and your claim is against the business, you may sue the person and the trade name he or she does business under in the county where the owner resides, regardless of where the business is located (i.e., John Doe dba ? doing business as - John's Grocery). You can usually find out the exact trade name as it is registered through the County Superior Court Clerk's office. 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, and the business or the Registered Agent must be in the County. The Court or the Court Clerk cannot advise you on who to sue or if you have a good claim. A good place to check for a company's address for service is the website of the Georgia Secretary of State. You may also verify the corporate status of a business and obtain the registered agent?s name and address for the corporation by contacting the corporation listing office of the Secretary of State (404) 656-2817.
3. HOW TO FILE
To start the process of filing a small claims case, you must first fill out a Statement of Claim Form. On this form, enter 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. You may also elect to put your email address on the form for electronic notices. This is important because the County Clerk will use this address to send you notice of the date and time for a Magistrate Judge hearing. Your case may be dismissed if the Court cannot locate you. 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 that should be served for the corporation).
4. WHERE TO FILE
You may file online starting from the Home page of this Website. Simply select the Statement of Claim form under Online Filing Forms. Or you may personally file or mail the claim form to the Magistrate Court of your County. 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.
5. FILING FEE
If you are suing someone you must pay a filing fee and a service fee. There is also a modest convenience fee for filing online that can be claimed as a Court cost. Court costs are County specific, but generally the filing fee is around $30.00. The person you sue must be served the Complaint and Summons by the Sheriff, and you pay a service cost of approximately $25.00 per Defendant. (Example: sue one Defendant ? the cost is approximately $55.00; two Defendants ? the cost is approximately $80.00 ? plus the online filing fee if applicable). At the Judge?s discretion, if you win the case, the person you sue typically reimburses Court costs.
6. NOTICE TO DEFENDANT
The Sheriff will serve the Defendant a copy of the complaint and summons that has been filed. The papers will inform the Defendant 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 thirty days, the law does permit the Defendant an additional fifteen (15) days in which an answer can be filed (totaling 45 days). If the Defendant answers the claim, the Clerk will notify all parties and their attorneys of the trial date by regular mail.
7. COUNTERCLAIMS
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 or 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 $15,000.00 in actual damages, the case may be transferred to the State or Superior Court of the County.
8. PREPARING FOR TRIAL
The Court has a long history of requiring appropriate dress and conduct. Informal attire such as baseball caps, tank tops, halters, and shorts are extremely discouraged.
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 that are considered "hearsay". Estimates of repair bills without the maker of the estimates are not accepted either. You must have the maker of any documents in Court in order to offer them into evidence. In some cases you may need to seek the advice of an attorney in order to submit your evidence. The Judges or Clerk of the 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 have the Clerk issue a subpoena for their appearance. To do this you must go to the Clerk of Magistrate Court and tell them the name and address of your witness. If the witness resides outside of the County, ask the Clerk for a copy of the law on issuing subpoenas.
9. SETTLEMENTS OUT OF COURT
The legislature requires the Court (Judge) to have the parties attempt to negotiate a settlement one more times before the hearing. If a settlement is reached in your case, the terms of the agreement should be put in writing. You do not have to submit those terms to the Court unless requested by the Court. However, if those terms are not submitted, a dismissal without prejudice should be filed immediately with the Clerk of Court. If you settle your case and the Defendant is willing to pay you, and the payment arrangement is acceptable to you, you should ask the Clerk for a consent judgment form. This form will enable you to put the terms of the agreement in writing with both parties' signature and the Judge?s signature. Should the Defendant fail to pay as per the consent judgment terms, you would not be required to appear in Court to start collection proceeding. If the Defendant does not work or have any money or assets, you may not be able to collect on your judgment. The Court cannot force the Defendant to pay the monies owed.
10. THE TRIAL
Civil trials are held weekly (calendars are usually posted outside the Courtroom). 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. When your case is called, the Court will inquire as to the length of time it will take you to present your case and how many witnesses will testify on your behalf. 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 to reach a settlement. Remember, you are the one most familiar with your case, not the Judge. It would be better to reach a settlement of your own, rather than to have 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 their case, as well as present any evidence or witnesses on their behalf. After each of the Plaintiff's witnesses has testified, the Defendant may ask the witnesses any questions pertaining to their testimony. After the Plaintiff presents their case, the Defendant may then present evidence and testimony to support his/her case. The Plaintiff may also ask the Defendant and witnesses questions relative to their testimony. Remember, you must ask questions and do 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 given a copy of the judgment. This is usually done upon leaving the Court.
11. DEFAULT JUDGMENTS
If the Defendant does not answer the complaint within 45 days from the date of service and the damages (i.e., note, account) are liquidated, a judgment may be rendered without having the parties appear in Court. If a Court hearing was 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 costs paid to initiate the action. If the claim is for un-liquidated damages (example: auto-accident), the Plaintiff will have to prove the amount of damages in Court to receive a default judgment.
12. APPEALS
Both parties have the right to appeal the decision of the Magistrate. If you think the Magistrate has made the wrong decision, you may appeal to the State or Superior Courts. Appeals must be made within thirty (30) days from the date of the Judge's decision. If the Defendant files the appeal, he/she will have to pay costs. The cost is usually the same cost that the Plaintiff had to pay when the action was filed. If the Plaintiff wishes to appeal, he or she may incur an additional cost to file an appeal as well. There is no appeal for a default judgment.
13. 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:
A. You may request the Court issue a fieri facias (fi.fa.). The fi.fa., (proof of your judgment) once issued, places a lien against the losing party and any property he or she may own. The cost for issuing and recording the fi.fa. on the General Execution Docket is County specific and around $5.00. You may also take the fi.fa. and have it recorded in any county in Georgia. If you need to record the fi.fa. outside the State of Georgia , you should consult an attorney.
B. You may also file a garnishment against wages or a bank account. Garnishments are typically filed through the Magistrate Court. Garnishments filed against wages are filed in the County where the employer is located. Garnishments filed against a bank account should be filed in the County where the bank is located.
C. You may also levy against real and personal property. Having the Clerk issue a fi.fa. starts this process. Since the fi.fa. is proof of having a judgment, the Sheriff will require the fi.fa. to levy against any personal property. If you want to levy against real property you should contact an attorney for the procedure.
D. You may also elect to turn your judgment over to an attorney or a collection agency for collection.
14. IMPORTANT THINGS TO REMEMBER
1. If you are involved in a small claims suit and your address changes, you should notify the Clerk in writing of your new address. The Court notifies you of your Court date by regular mail.
2. The Magistrate Court is designed for you to represent yourself. However, you can have an attorney represent you.
3. Once the Clerk has set a Court date, continuances are granted by consent of both parties for legal causes, or in the sound discretion of the court.
4. 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.
5. The Clerk of Court cannot give advice on who to sue, however, the Clerk of Court can help with filling out the necessary forms.
6. The Court cannot force the losing party to pay. Keep in mind you may not be able to collect on the judgment.
7. 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 County Clerk of Court will be happy to assist you. |
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