Small Claims FAQs
So, you’ve been wronged and you want to sue. You probably have many questions regarding the process. This guide will hopefully assist you by providing information in the following areas: 1) Determining if small claims court the correct place to solve your problem; 2) Explaining how to file your lawsuit; 3) Explaining how to proceed through both mediation and a court hearing; 4) Explaining what to do if you win or lose your lawsuit; 5) Reviewing the common pitfalls to the small claims process.
- Is Small Claims Court the best place to solve your problem?
- What do you mean judgment proof?
- Can anyone not sue in Small Claims Court?
- I Am Ready to Sue, What Next?
- I Have a Court Date, Now What?
- The Judge Made a Decision, What Do I Do Now?
- Is There Anything Else I Should Worry About?
$1500??? Probably the biggest limitation in small claims court is the most you can sue for is $1500.1 If your claim is for more than $1500, you can still sue in small claims court- but the most you can ask for is the $1500 limit. You may want to pursue this option if your claim is for less than $2000, because otherwise you will have to file an action in Civil District Court- which is significantly more complicated.
Before filing a suit, you should have some idea of whether the person (or company) you are suing has any way of paying you. Some people might be “judgment proof” because of lack of income or property.2 However, they may receive income or property later in life, which you will be entitled to. You must decide if it is a risk worth taking.
Yes, a person or organization in the business of lending money at interest, collection agencies and agents and a person or organization with an assigned claim will not be able to use small claims court. Also- if you have already filed 25 claims that year, you may not use small claims court. You further cannot use small claims court to pursue: criminal actions, cases of libel, slander or alienation of affection, malicious prosecution or abuse of process.
Alright- is there anything else I should worry about before deciding to sue?
Yes, you should remember that small claims court can only provide a monetary solution to your problem; no one can make the other side apologize. No one is going to make sure that “justice is done” only that your claim is heard.
It is always a good idea to try to work things out with the other side before suing. A lawsuit should always be a last resort.
You may also wish to contact the Better Business Bureau or the Kentucky Attorney General’s Consumer Protection Division before filing your claim.
Also, you should evaluate whether or not the other side will hire an attorney, file bankruptcy, countersue you or try to move the action to the regular civil division of District Court. (For more information on these possibilities please see the “Is there anything else I should worry about?” section)
You should go to the District Court Clerk’s Office on the 3rd floor of the Hall of Justice, 600 West Jefferson Street.
Tell the clerk you wish to file a small claims action. If you do not already have the forms, she will provide them for you. The clerk cannot assist you with filling out the form. When you fill out the forms, you will be considered the Plaintiff, because you are the one doing the suing. The person/ organization you are suing will be called the Defendant.
You will also need to fill out a summons that will give the name and address of the Defendant. The Clerk’s office also requires you to fill out a checklist that asks some general information regarding your claim. All of these forms are attached to this document.
Your complaint is not your place to tell your story; you will get to tell your story at court. Your complaint is where you should tell BRIEFLY how the Defendant harmed you. There is no need to include extra information in this complaint.
For example, instead of:
"My neighbor and I have not got along since I moved in five years ago. I don’t think he liked the fact that I put up a privacy fence and that I had a dog. My neighbor was always telling me that one day he was going to get me. I came home on March 3, 2008 and my neighbor had hit the fence in my backyard. I know this is because he did not like my fence. I had to have three different contractors out there to look at my fence before one finally fixed it for $722. My neighbor has not paid me back and told me that he wouldn’t pay until pigs fly. I don’t understand what I did to my neighbor and I am emotionally distressed by this entire ordeal."
"My neighbor hit the fence in my backyard causing $722 in damages."
Also- a word of advice, claims for emotional distress are very hard to prove and you are unlikely to receive any damages for these claims. Try to limit your claim to only provable money damages.
You need to serve your complaint on them. There are two common ways to serve a complaint.
- Certified Mail: This is the cheapest way. Usually, the clerk can do this, but you must specifically request this service. There is a fee for certified mail.
- Delivery of the complaint by the sheriff. This is the more expensive option.
The fees change periodically however at the printing of this document they are as follows:
$33.25- to file your complaint (with the clerk).
$ 9.00- to have the summons sent by certified mail.
$40.00- to have the summons delivered by sheriff
$75.00- for filing an appeal.
If you cannot afford to file your complaint, you may file a motion to proceed in forma pauperis, or without costs. With this motion, you will need to attach an affidavit that states the reasons you cannot afford to file this complaint. A sample copy of these forms is attached to this document. The judge will ultimately decide whether or not to grant you motion to proceed without costs, if your motion is denied you will likely have to pay the costs.
Also, if you do pay the costs and you win your case, the judge will award you the filing fees and cost of service.
Unfortunately, it is a bit more complicated to sue a business than an individual. First, you must determine the “agent for service of process” for that business. You can obtain this information from the Secretary of State’s website at https://app.sos.ky.gov/ftsearch/. This is the individual that you must serve to file a suit against the business.
If the business is not listed as a Kentucky Corporation, you may serve the Secretary of State, however be advised, that it may be difficult to collect a judgment against a business that is not registered with the Secretary of State.
The first time you go to court, if both parties are present, you will be ordered to participate in mediation. You should bring any copies of contracts, letters, receipts, canceled checks or any other papers that would support your claim. You should be respectful by dressing neatly and being polite. You should write down important dates, times and names, plus any information that you feel is crucial to your case.
If the other side does not appear you may be able to request a default judgment against them. However, it is not automatic. You must still tell the judge your side of the story in order to win a judgment. If the judge believes you have proved your claim, you can ask for a default judgment.
Likely your claim was dismissed; however you probably can file your claim again. It is also possible that the judge may have found against you if the other side filed a counterclaim. You should contact the clerk’s office to determine what happened.
Mediation is a non-binding conference between you and the person you are suing. The mediator is not a judge and cannot force you to enter into an agreement you do not wish to enter into. However, it is really smart to try to reach a settlement in mediation.
You should enter into mediation willing to compromise with the other party. Remember, it is impossible to determine what a judge will do, so it is better to work out a settlement if you can. This settlement is binding on the other party, and if they do not live up to its terms, you can usually collect the entire amount you sued for from them.
Yes, if you cannot work it out in mediation you will be given a new trial date to be heard before the judge. You should once again bring all of your documents with you.
Your trial will be in front of a judge, not a jury. At the hearing, each side will be given a chance to tell their side of the story. The judge may ask questions. After hearing both sides, the judge will make a decision.
You should also bring any witnesses you feel you may need. If your witnesses refuse to attend the trial, you can subpoena them. A form to file a subpoena is attached to this document. However, BEWARE; a witness who needs to be subpoenaed may not be the most cooperative witness.
You should also remember to be very respectful in front of the judge, especially when the judge is speaking or the other side is speaking, you should NOT interrupt. If you feel what they are saying is incorrect, you should make notes and tell them that you disagree when it is your time to speak.
Sometimes during the hearing, a person becomes nervous. There is NO reason to be nervous. Just be honest and polite, and you will do fine.
First, you should ask yourself why you lost. If you believe you lost because the judge used the law incorrectly to decide your case you may appeal. However appealing because the judge believed the other side over your is NOT a good reason to appeal, and will likely be a waste of both your time and money. Well over 90% of appeals from small claims court are found in favor of the non-appealing party.
If you do decide to appeal, you should file your notice of appeal within 10 days of the date of the judgment. Do not be late! Courts are very strict with deadlines. Notices of Appeal need to be filed with the Circuit Court Clerk on the third floor Judicial Center located at 700 West Jefferson Street.
You must also file a statement of appeal within 30 days. If you wish to speak with the Circuit Court judge in person, you must request an oral argument. If you are putting your argument in writing you should only discuss the legal issues, a summary of the evidence presented (you CANNOT present new evidence), why you think the judge made a mistake and how much compensation you believe you are entitled to.
It is your responsibility to deliver a copy of the notice and statement of appeal to the opposing party.
The appeal process is expensive and complicated. You are likely better off to just determine that you “had your day in court” and move on with your life. However if you decide to proceed it would be to your advantage to consult with an attorney.
Congratulations! However the hard part is just beginning. At your hearing, the judge entered a judgment telling you who won, how much is to be paid and how it is to be paid. He or she will give you a court order entitling you to receive the money awarded to you by the court.
This is a legal document and enforceable. The Defendant has 10 days after the due date to pay.
If the Defendant fails to pay you, additional action may be needed. In order to collect you will need to go through a special process called post-judgment collection procedure. Once this occurs, a sheriff may be able to “attach” or put a lien on property owned by the Defendant and give it to you as payment. Also you may be able to garnish the Defendant’s bank account or a part of the Defendant’s wages. However, you must follow special procedures. This can be a bit complicated so carefully follow the instructions of the clerk. If it becomes too complicated, you may wish to see the advice of an attorney. Just remember, you cannot attach property or garnish wages on your own.
You should carefully evaluate the claim and write down your response in writing. The judge will hear their claim at the same time they hear yours. If this happens, remember you have even greater incentive to settle in mediation because the outcome could actually end up worse than just losing, you could lose and they could win a judgment against you!
You can still try to follow through on the case on your own; however it may be more difficult. You may wish to consult an attorney of your own. The Lawyer Referral Service can provide you a free referral and you can receive 30 minutes free consultation with any lawyer they refer you to. They may also have attorneys who can provide their services at a reduced rate, or for a percentage of whatever judgment you receive. You can contact the Lawyer Referral Service at 583-1801.
Unfortunately, the other side may do this if they wish. You can still pursue the claim on your own, however once again you may wish to consult an attorney before you go forward.
Although there are some exceptions, it is likely that if the other side filed bankruptcy, your claim will be dismissed or the judgment against the other side will be released. You may have some rights in bankruptcy court, you may wish to contact an attorney to determine if it is worth pursuing.