In the first post in this series, I wrote about some of the things you need to consider before you file or respond to a suit in small claims court. If you have decided to proceed, this post is hopefully going to help you manage to get a lawsuit filed or help you respond to a lawsuit.
Each county in Colorado has a small claims court. You can find the location of yours here.
Each small claims court has its own “local practices,” and you should make sure you are familiar with them when you file your lawsuit. For example, some courts require that the parties mediate before they go to trial. However, initiating a lawsuit is uniform across the state.
The first thing you need to determine is whether or not small claims court is the right place for you. Small claims court is the right jurisdiction for helping you get money or property from someone or to enforce a contract. There are limitations, though. You cannot recover any more than $7,500.00 from someone. If you need to sue someone for a greater amount, you have to bring suit in either a county (up to $15,000.00) or district (over $15,000.00) court.
Once you have figured out that small claims court is the right place to bring your lawsuit, you need to determine your venue. This is the county in which the court is located. The lawsuit must be brought “in the county in which at the time of filing of the claim any of the defendants resides, or is regularly employed, or has an office for the transaction of business, or is a student at an institution of higher education. In an action to enforce restrictive covenants or arising from a security deposit dispute, the action may be brought in the county in which the subject real property is located.”
After you have figured out what county to bring the lawsuit in, you can get started. A lawsuit is commenced by “filing with the court a short statement of the plaintiff’s claim setting forth the facts giving rise to the action in the manner and form provided in Colorado Rules of Civil Procedure Rule 506 and by paying the appropriate fee.” You can use form JDF 250, Notice, Claim and Summons to Appear, which can be found here. It’s a very easy to understand form. You simply need to lay out how much the defendant owes you and why. You’ll then file the Notice, Claim, and Summons to Appear with the clerk of the small claims court. That’s also when you’ll pay the filing fee, which, as of January 1, 2010 is $31.00 for claims up to $500.00 and $55.00 for claims up to $7,500.00. The clerk will then set the matter for trial, which cannot be “less than thirty days from the date of issuance of the notice of claim by the clerk.”
You are now ready to serve the lawsuit, and this is where you have to be careful. Service is when you deliver a copy of the Notice, Claim and Summons to the defendant. There are two primary things to remember when serving the suit. First, you cannot serve the notice yourself, and neither can a member of your family or anyone else involved in the lawsuit, such as someone who might be called as a witness. You can ask the sheriff’s department or a private process server to serve the notice. There will be a fee. The clerk of the small claims court can also send out the notice by certified mail, which can also be done for a fee. I’m not sure this is the best method, though, because if someone knows that there is a lawsuit in that envelope, they’re not likely to accept it. If you have it personally served, the defendant doesn’t have to accept it. The server can leave it with them. However, that doesn’t mean they can just leave it in the screen door without knocking on the door. They have to verify that the person they are talking with is the defendant or is a member of the defendant’s family who is living with them. The second thing to remember is that the notice has to be served fifteen days before the trial date. If it isn’t, the trial date may have to be rescheduled and you might have to re-serve the defendant. Once the defendant is served, you must file an affidavit of service with the clerk. That’s also found on the Notice, Claim and Summons form.
If you are suing a corporation, there are some other things you need to consider, and I haven’t gone into them here. First, you need to make sure that you serve the registered agent for the corporation. You can find out who that is on the Colorado Secretary of State’s website.
That’s how you start a lawsuit in small claims court. But if you are unlucky enough to be sued, there are also procedures that you need to follow.
If you are served with a Notice, Claim and Summons, do not ignore it. If you do, the plaintiff will very like receive a default judgment against you and then be able to commence execution, which means he’ll be able to do all sorts of unpleasant things, like garnish your wages.
Instead, fill out Part 2 of the Notice, Claim and Summons form. This is where you write your response to the plaintiff’s claims and include a counterclaim, if you believe one exists. A counterclaim is a claim by the defendant against the plaintiff. A counterclaim must arise out of the same set of facts as the plaintiff’s claim and it cannot exceed $7,500.00. The defendant’s response will generally be filed at the first trial date. The defendant will have to pay a filing fee at this time.
There are some additional considerations the defendant will have to take if he has a counterclaim in excess of $7,500.00 or if he doesn’t want the matter to be heard by a magistrate. If that’s the case, he needs to file the proper notice with the court at least seven days before the trial date.
Next: What to Expect at Trial in Small Claims Court
Peter Mullison is a bankruptcy attorney at Colorado Bankruptcy Law Group, LLC. If you are considering Chapter 7 or Chapter 13 personal bankruptcy, schedule your free, confidential bankruptcy consultation with a Colorado bankruptcy attorney today. Our online scheduling system allows you to schedule a bankruptcy consultation at a time that is convenient for you.
Colorado Bankruptcy Law Group, LLC is a personal bankruptcy firm serving clients in the greater Denver area.
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Represent Yourself in Court