SMALL CLAIMS PROCEDURES. Frequently Asked Questions:

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1 SMALL CLAIMS PROCEDURES Frequently Asked Questions: Representing Yourself in Court A. FILING A PETITION 1. How do I bring a lawsuit? To commence a civil action, you must file a petition with the clerk of court. The petition should contain information about the case such as the names of the parties to the cases, the nature of the case or the cause of action and your request for a remedy or relief. You must also serve the petition on the opposing party (see question number 2). The date of filing shall determine whether an action has been commenced within the time allowed by statutes of limitation. The time period differs depending on the type of action being undertaken. For example, actions for injury to a person or reputation of a person must be carried out within two years. Iowa Code Chapter 614 sets out the different time periods for bringing a lawsuit. However, other Code chapters could apply. In addition, the statute of limitations may be tolled of affected by certain circumstances. 2. How do I serve my petition on the opposing party? You must serve a notice, called an original notice, informing the defendant, respondent, or other party against who an action has been filed. Rule of Civil Procedure 49 addresses the form of the notice and the procedures for its issuance and service. In most cases, an original notice is served by delivering a copy to the proper person. There are various means of service set out in Iowa Rules of Civil Procedure through (scroll to page 45). The most common means is to contact a process service or the county sheriff to personally serve the party with the notice, but this is not appropriate in all cases. Consult an attorney to determine the proper means of service for your particular case. 3. In what county [or state] do I file my case? The answer to this question depends on the type of case that is being filed, where the litigants live, and where the events that are the subject of the lawsuit took place. Typically, if you live in County A, the defendant lives in County A, and the event that is the subject of the lawsuit occurred in County A, you need to file the petition in County A. B. ANSWERING A PETITION 1. How do I file an answer? An answer is a defendant's response to documents filed in court. An answer should be in writing (preferably typed) and filed with the clerk of court within 20 days after the petition was served on the party. (For information on calculating deadlines, see Iowa Code section 4.1(34).) The litigant must provide a copy to the opposing party. There are various means of service set forth in Rule of Civil Procedure (scroll to page 52). The answer includes a response to each specific allegation or paragraph in the petition or pleading to which the defendant is responding. See Rule of Civil Procedure (scroll to page 48). The answer should also incorporate any affirmative defenses. 2. A petition was filed on me more than 20 days ago. Can I still file an answer? Yes, the clerk of court must accept an answer at any time, even if it is late. But the clerk cannot speculate about the legal consequences of filing the answer late. A judge will determine the

2 outcome. If you miss the time for filing your answer, the opposing party may request that the court enter a default judgment against you. (See Rules of Civil Procedure through (scroll to page77).) The court may set aside a default judgment only for good cause shown for mistake, inadvertence, surprise, excusable neglect and unavoidable casualty. The party seeking to have the court set aside the default must submit the request in writing as soon as possible after discovering the problem but within sixty days after entry of the judgment. (See Rules of Civil Procedure (scroll to page 78).) - C. SMALL CLAIMS 1. What constitutes a small claims case? A small claims case is a civil action for a money judgment in which the amount in controversy is $5000 or less. Under certain circumstances, an action for forcible entry and detainer (typically arising out of a landlord tenant dispute) can be brought in small claims court. 2. How is small claims court different from other civil actions? Small claims court was created to provide citizens with a simplified process for resolving civil disputes. In small claims court, cases are tried before a judge, not a jury, without strict regard to technicalities of procedure. Small claims procedure is less complicated than other court procedures and the court provides simplified standard forms. In addition, the filing fee is lower ($50 for small claims vs. $100 for regular civil cases). 3. Is there a court hearing? Yes. If the other party has entered a timely answer or defaulted (not answered), the clerk shall assign a case to the calendar for hearing. The clerk shall transmit the case file to the judge assigned to hear the case. A magistrate, district associate judge, or district court judge may hear the case. Judicial magistrates hear most small claims cases. These hearings are not recorded by a certified court reporter unless the party provides the reporter at the party s own expense. At the magistrate s discretion the hearing may be electronically recorded. 4. Do I need a lawyer for a small claims case? Some litigants in small claims court choose to have a lawyer, though it is not required. If the case involves a small amount of money, or the evidence strongly favors one side over the other, it is not necessary. There are a few halfway points you can choose rather than paying to hire a lawyer: Do research on relevant legal issues at a law library (Drake, University of Iowa, or the State of Iowa Library at the Iowa Capitol). Pay a lawyer for an hour or so to look over your case and point out strong and weak points. 5. How do I bring a small claims action? Begin by going to the clerk of court office in your local courthouse. The clerk can furnish you with a standard form to use as a pleading or petition which, when complete, sets forth your cause of action against the other party. You must complete the form. The clerk may provide information to help you to complete the form. However, the clerk cannot provide you with legal advice.

3 When the pleading is complete, it must be served on the other party. Once you have paid the clerk for the cost of service, the clerk will cause service to be obtained. The other party gets time to answer your pleading before the case proceeds. 6. What if I am unhappy with the judge s decision? If you are unhappy with the decision in the case, you may appeal by giving oral notice to the court at the conclusion of the hearing or by filing a written notice of appeal with the clerk within twenty days after the decision is rendered. If a magistrate heard the original action, a district associate or district court judge shall decide the appeal. If a district associate judge heard the original action, a district court judge shall decide the appeal. And if a district court judge heard the original action, another district court judge shall decide the appeal. If you are not pleased with the outcome of the appeal, you may ask the Iowa Supreme Court to review the case. In small claims cases, the Court has discretion to decide if it will review the case review is not a matter of right.

4 Below are a few of the most commonly ask questions in the District Court Office. The defendant is served, what happens? The defendant has 20 days to answer claims regarding monetary damages. They are provided with an answer form at time of service of the original notice. The defendant is given 5 days to respond in a replevin action, Out of state defendants being served through the secretary of state have 60 days to respond. If no response is given within the appropriate time span, the plaintiff may request a default judgment. However, answers are accepted anytime after the response time as long as the plaintiff has not requested the default judgment yet. If I win my judgment, how do I collect my money? After judgment is entered, an execution (garnishment) on the losing party's wages, bank account, or by personal demand. It is the requesting party's responsibility to determine where and how to garnish funds. Contact the clerk to obtain the proper forms for an execution (garnishment). If I have a judgment, in an auto accident case, and I cannot collect through the garnishment procedures, do I have any other options? 60 days after judgment entry, an SR-150 may be issued to the D.O.T. A written request for the SR-150 must be presented to the Clerk before the Clerk can submit the directive to the D.O.T. The SR-150 is a notice to the D.O.T. advising them of the defendants automobile accident liability. The D.O.T. will suspend the party's driving privilege until the judgment is satisfied in full. Can I bring witnesses to court for the court hearing? What if the witness I need refuses to appear? Witnesses are allowed in a Small Claims Trial. Reluctant witnesses may have to be ordered to appear by subpoena. Subpoenas must be served on the individual that is to appear, please research the Iowa Code to determine acceptable methods of service for subpoenas. When I get my court date, what should I do if it falls on the same day as my vacation or some other important date? As soon as it is determined that there is a calendar conflict, a new date should be requested. The request will be submitted to the Magistrate for consideration. The opposing party be should be notified of the request and given time to consent or resist the schedule change. Why do I have to pay court costs if I don't go to court? Court costs are the fees the other party paid to file the paperwork and have them served on you. It covers part of the cost of the actual filing and the time of the clerks and the magistrate who handle the case. How can I get a court appointed attorney? Court appointed attorneys are not allowed in a Civil action unless there is the possibility of a jail sentence. How much money do I owe? what is the payoff for this case? The clerk is not allowed to calculate interest. We can tell you the judgment amount, the court costs and the interest rate and what has been paid through our office. Payoff figures will have to calculated an attorney or one of the parties involved in the action. How do I get my judgment satisfied? The party receiving the judgment award is responsible for filing a Satisfaction when the judgment has been paid in full. If they fail to file the Satisfaction in a timely manner, the Judge

5 may order the judgment Satisfied if proof of payments can be provided for his/her consideration. If you have paid through the clerks office, we can provide these records. Is it better to pay the other party directly or do I pay the clerk of court? We recommend that payment be made through the clerk's office so that the court has a record of payments in the event of a dispute over payments received. How do I get a lien against a person's house? A judgment is an automatic lien against any real estate owned by the Judgment debtor. How do I get a judgment off of my credit report? If a satisfaction of judgment has been filed with the clerk, send a copy of the satisfaction directly to the credit reporting company. If it has not been filed, you should contact the other party and request the satisfaction be filed. In some cases, a judgment can be satisfied by the court. Is there a fee to file a counter claim? There is no fee to file a counterclaim. When will the counterclaim be heard? The counterclaim will be heard on the same date as the original claim, unless otherwise ordered by the magistrate. What is the statute of limitations for different occurrences? Research the Iowa code for those answers or contact an attorney. Do I need an attorney to file a small claims action? It is not necessary to retain an attorney. However, if you wish to have an attorney to represent you or to receive advice, it is up to each individuals own discretion. What if I cannot afford the small claims filing fee in order to file a small claims suit? Our office has a form titled Application For Deferral Of Filing Fees. There are certain guidelines that need to be met. If you request is approved by the Magistrate, the Small Claim may be initiated without prepayment of fees. The filing fees are deferred not waived. That means the fees would be assessed against the proper party at the time of the judgment. Is it my responsibility to inform the Clerks Office of any address change I may have? When parties to a case have a new address, it is up to the individual to inform us in writing of their new address. We send all notices to the last known address given to us. Without the proper address this could result in not getting important hearing notices that would result in you missing your court date or missing your time to appeal a case. What are landlords and tenants rights? That is a legal question that the clerk cannot answer. However, there is a publication put out by legal services corporation of Iowa. It is called (a guide to landlord tenant law in Iowa) the fee for this booklet is $20.00 and can be obtained by writing or calling legal services corporation of Iowa th street, suite 230 Des Moines Iowa or call toll free (800) or (515) When is forcible entry and detainer court held? Forcible entry court also known as eviction court is held every Tuesday at 1:00 p.m. When is a judge available to get a default judgment entered? A small claim magistrate is available to the public Monday through Friday at 12:45 p.m. for defaults and other issues.

6 How much time to I have to move once I am evicted? If you appear at your eviction hearing the judge usually will give you through that weekend to move however, if you do not appear for your hearing the judge will order you out that date. Can I appeal the decision on my eviction case if I don't agree? An Eviction can be Appealed. There is a $75.00 appeal fee. The Magistrate will order an Appeal Bond be posted for the amount of rent that is owed. How much does it costs to file a small claims suit? As of July 1, 2002 the Small Claims filing fee is $ Can I serve the small claims suit? No. The Original Notice (Small Claim Action ) can be served upon the defendant by one of the following methods: by certified mail which is $7.92 per defendant (if mail is not signed for, additional forms must be filled out and defendant served by other means.) You may also pick the Scott County Sheriff's Office (a deposit is required) or a legal process server (which would bill you for their services.) How long will my case remain open until I can obtain a judgment? After 90 days the case will be dismissed under the rule if it has not been carried through to a judgment. Please be reminded that the clerk does not notify you in writing or by phone when your case is dismissed per this section.