1. Is a lawyer Required?
2. What Cases Can the Court Handle?
3. Who Can Sue or Be Sued?
4. What Steps Do I Take Before Filing a Claim?
5. How Much Does It Cost?
6. Where Do I File My Claim?
7. How Do I File My Claim?
8. How Should I Prepare My Case?
9. What Happens at Court?
10. How do I collect the judgment?
11. What is a judgment Debtor Exams?
12. What is a Garnishment?
13. How do I place a Lien?
14. What if the judgment Debtor refuses to pay?
1. Is a lawyer Required?
No one needs a lawyer in small claims court, but anyone can have a lawyer if he/she wishes. The procedure is much simpler than in regular court, and hearings are informal.
If you need an attorney, but don’t know where to turn, call the Toledo Bar Association at 419-242-2000. The Bar’s Lawyer Referral Service will provide a name from a list of attorneys who have agreed to accept referrals.
2. What Cases Can the Court Handle?
The lawsuits which a small claims court can hear are claims for money up to $6,000, and counter-claims for up to $6,000.
3. Who Can Sue or Be Sued?
Any individual, company, business or organization can file a claim or have a claim filed against them. A minor under 18 can use the court and/or be sued through his/her parent or guardian. The person who brings the action is the “plaintiff” and the person against whom it is brought is the “defendant.”
4. What Steps Do I Take Before Filing a Claim?
Make sure you know the true, legal name of the person or business you intend to sue. If you sue the wrong party, the case may be dismissed (thrown out) or you could wind up with an uncollectible judgment. You will need the following information:
- The full name (and business name, if applicable), address and telephone number of the defendant.
- Whether or not the defendant is on active military duty.
If you are filing against a business, make sure you have the correct legal name. An unincorporated business (sole owner or partnership), must be sued in the personal name of the owner or partner; i.e., John Doe d/b/a Doe’s Service (d/b/a means “doing business as”).
Only a corporation (John Doe, Inc.) can actually be sued in the company name. If you are unsure whether the business is incorporated, call the Ohio Secretary of State at 614-466-3910.
5. How Much Does It Cost?
The filing fees are outlined on the Civil Information page. These costs must be paid at the time you file. If you win your case, the defendant will probably be ordered to pay the court cost back to you, in addition to the amount of your judgment.
6. Where Do I File My Claim?
A small claims complaint must be filed in the municipal or county court having jurisdiction.
A court has jurisdiction if the transaction or incident on which the claim is based took place in that court’s territory. The Sylvania Municipal Court territory is bounded by the State of Michigan to the north, the City of Toledo in the east, the Ohio Turnpike in the south and the Fulton County line in the west. Regardless of where the transaction or incident took place, a court also has jurisdiction if the defendant or business is located in the territory of the court.
Once you have determined whom you are going to sue and for how much, go to the Clerk of Courts office to fill out the form.
7. How Do I File My Claim?
A lawsuit on a small claim is begun by filing a statement of claim, which contains a description of the nature and the amount of the claim. A small claims complaint form is available on our website. Just click the print button on your Internet browser.
You will be given a copy of the complaint, which will list the case number assigned and the date and time of the trial. You also will be given a form requesting ordinary mail service of the complaint. Although a deputy clerk may help you fill out the form, he/she is not an attorney and cannot give you legal advice about your case.
Your complaint will be sent to the defendant by certified mail. If the Post Office returns that letter to the Clerk of Courts unserved and you signed a request for ordinary mail service, then the complaint will be reissued by regular mail.
If the complaint is not returned (addressee unknown, etc.), it is assumed to have been served.
Both the plaintiff and the defendant are entitled to request one continuance of the trial date. Please be aware that the original trial date on the complaint may change. You will be notified by the Clerk of Courts office if this happens.
Unfortunately, filing suit in small claims court does not guarantee that the case will be heard there. Any defendant has the right to file a motion to have the case taken out of small claims and transferred to the regular civil docket. If this happens to your case, it may make it harder for you to continue without a lawyer. While you would still have a right to represent yourself, you would not enjoy the relaxed rules of small claims and should, therefore, consider at least consulting with a lawyer before going into the regular civil court docket on your own.
8. How Should I Prepare My Case?
Organize your case before going to court. Plan what you will say and organize your testimony and arguments so that the Judge will be able to understand clearly what happened and why you have been injured or wronged. Keep in mind that you will have to convince the Judge not only that you are right, but that you are also entitled to a specific sum of money from the defendant.
Collect all documents related to your case: receipts, cancelled checks, estimates, bills, contracts, photos, etc.
Line up your witnesses. You will not be allowed to tell the Judge what someone else (except the defendant) told you. That is called “hearsay” and may not be permitted in court.
If a witness is reluctant to testify, you can have him/her subpoenaed. Subpoenas are arranged for at the Clerk’s office (there is a fee of $10) and must be requested at least seven (7) days before the trial.
9. What Happens at Court?
Court starts promptly at the time listed on the complaint. You should check in at the Clerk of Court’s office at least fifteen (15) minutes prior to the time listed on your complaint.
If a defendant (the one being sued) is absent, the Judge will probably grant a “default judgment,” which means that the plaintiff has automatically won.
Prior to beginning all cases, you will be sworn in by the bailiff. This swearing in ceremony will include all parties to cases that are scheduled on the evening you are present. Each side gets a chance to present testimony and evidence. If you filed the suit, you are the plaintiff and you present your case first. Include all relevant facts and be sure to state the amount you are claiming and explain how you arrived at this amount. Show the Judge any documents or other evidence you have.
The defendant will have a chance to question (not argue) you on any points you have raised in your testimony. The Judge may also ask questions to clarify the case.
The Judge will usually not make a decision at the end of your case. He or she will take the case under advisement and render a decision in writing. The judgment of the court will then be typed by the Clerk’s office and a copy will be mailed to you.
A decision in favor of one party or the other is called a “judgment,” and is entered in the court’s record. The judgment entry mailed to you will indicate if you have won or lost. The judgment entry will also set the amount of your judgment; i.e., how much money you are entitled to collect from the defendant.
10. How do I collect the judgment?
The losing defendant becomes the “judgment debtor,” with 30 days to pay the judgment voluntarily. The plaintiff that receives judgment now becomes the “judgment creditor.” The judgment creditor must at this point attempt to collect from the judgment debtor.
No court (not just small claims) automatically forces a debtor to pay. The court has confirmed that the debtor has a legal, enforceable obligation to pay, but then it becomes the creditor’s job to collect that debt. There are several kinds of actions you can take through the court to collect. Each of these collection steps will require you to return to the Clerk of Courts office, fill out more forms and pay more fees. All additional fees paid will be added to the judgment amount you are attempting to collect. It can be a lengthy process, but it can work.
Before you collect from the judgment debtor, you must first know something about his/her finances. If you are already familiar with where the judgment debtor banks, works, lives, does business, etc., you may know enough to proceed with collection.
11. What is a judgment Debtor Exams?
The judgment debtor examination is the court’s way of helping judgment creditors learn about the judgment debtor’s assets … information which then can be used to collect the judgment.
Mail Exam
In addition to the standard judgment debtor exam available to all judgment creditors, small claims court has an additional, simplified process that may save considerable time. You may wish to try this before moving to the more time-consuming judgment debtor hearing process:
- Wait 30 days after the judgment.
- Go to the Clerk’s office and ask for a by-mail judgment debtor exam. This will cost you $5.
- The Clerk will mail this form to the judgment debtor, asking for a list of his/her assets, liabilities and personal earnings.
- The judgment debtor will be given one week to return that information to the Clerk’s office. He/she will be informed that failure to respond within that week could result in a charge of contempt of court.
- To obtain the judgment debtor’s exam answers, you will have to visit the Clerk’s office sometime after the week deadline.
- If the judgment debtor fails to return the exam to the Clerk’s office, they will issue a notice for the defendant to appear before the Judge.
Personal Exam
While the mail process may be more convenient, you may find that the information you receive is not specific or complete enough to enable you to proceed with collection. This is a formal judgment examination, where you get the court to enforce the judgment debtor to attend a hearing and answer your questions:
- Forms are available in the Clerk’s office. Cost of filing is $25.
- The Clerk will assign an appearance date. You will need to be present at this assigned date and time.
- The bailiff will serve this notice on the defendant personally. You will be notified if service cannot be made.
- If the judgment debtor is served but fails to appear, you may ask the court to issue an arrest warrant (as long as you can supply the court with his/her date of birth and Social Security number).
- When the debtor appears, you will have the right to ask any questions needed to determine where you might find enough assets to pay your judgment. You should have your questions ready in advance to determine the following:
- Place of employment and identity of employer
- Take-home pay amount
- Bank accounts (name of bank and account number) and amount in them
- Location of any land or houses owned
- Make, model, year, license and title number of any cars owned and amount owed a bank or loan company
- Address of any rental property owned and identity of tenants
- The debtor will be under oath, but not on a witness stand. You will be seated at a table and will simply ask your questions and write down the answers.
- If you believe the debtor is lying or the debtor refuses to answer your questions, you will notify the Clerk. The case will then be taken into court before the Judge. This is sometimes needed to persuade the debtor to cooperate.
- Once you have obtained your information, you can then proceed to use the various collection approaches that are outlined.
12. What is a Garnishment?
Garnishment is a process which lets the creditor claim and take money owed to the debtor by another person. For example, the typical employee is paid for one or two weeks after actually earning his/her wages. The employer is holding the employee’s money during that time and, through the garnishment process, may be required to pay a portion of those wages to the creditor.
If the debtor is employed, has a checking or savings account, or is a landlord, you may “garnish” the employer, the bank or the tenants.
Income from Social Security, Welfare, Worker’s Compensation and Unemployment Compensation are exempt and protected from garnishment. It is also possible that if the judgment debtor can show that money in a bank account is from one of these sources, it will block the garnishment.
The judgment debtor will also be given an opportunity to request a hearing on the garnishment prior to disbursement of any money by the court.
Garnishment procedures changed March 30, 1999, due to new legislation – contact the Clerk’s office for additional information regarding:
- Wage garnishment
- Non-wage garnishment
13. How do I place a Lien?
A lien can be placed on any real estate owned by the judgment debtor, if it is in Lucas County and was owned at the time the case was originally filed.
The lien must be renewed every five years. The lien holder (judgment creditor) will recover the amount of the judgment when the property is sold.
The procedure to file a lien is:
- Go to the Clerk’s office and ask for a Precipe for a Certificate of Judgment.
- Complete the information on the form and file it along with a $10 filing fee.
- The certificate will be mailed to you within seven (7) working days.
- Take the certificate to the Clerk of Common Pleas Court, 700 Adams St., Toledo, and ask for assistance in filing the lien. There will most likely be a fee to file this lien. You may call the Common Pleas Court at 419-213-4482.
- The lien also has to be filed with the Lucas County Treasurer’s Office, One Government Center, Suite 700, Toledo, 419-213-4400.
14. What if the judgment Debtor refuses to pay?
If the judgment debtor fails to pay within 30 days of the judgment, the judgment creditor, through the court, may seize the debtor’s property, have it appraised, sell it and collect the judgment from the proceeds.
It is your responsibility to make sure that the property attached does belong to the judgment debtor. You are also liable for any costs that would involve moving, towing, appraisal of property and storage of the property prior to the bailiff’s sale. (Reasonable costs may be added to the amount of judgment you are collecting.)
There are, however, many exemptions under Ohio law, which can be found under Ohio Revised Code Section 2329.66. The following are just a few of those exemptions:
- $1,000 “interest” in one motor vehicle
- Up to $200 in any particular item of clothing/bedding
- Up to $300 in a refrigerator, freezer or stove
- Up to $200 per item of furniture, appliances, animals, etc., which are “held primarily for personal, family or household uses of the person …”
- Up to $5,000 for the judgment debtor’s residence
- Up to $750 for tools of the debtor’s trade or profession
This is not a complete list. If you have questions on whether an item is exempt, you should check with an attorney. An additional problem could arise if the judgment debtor owes money on the property to someone else (for example, a bank).
