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Information for Plaintiffs in Small Claims Cases
Default (Defendant Fails to File an Answer)

The Default Hearing – In most counties, if the defendant does not file an answer to your claim, and if the court file shows that service of process on the defendant was completed, the court will schedule your claim for a default hearing. A default hearing is when you come to court to tell the judge about your case and ask the judge for default judgment. When your case is called, the judge will first ask that you be sworn to tell the truth. (You’ll stand, raise your right hand, and the judge or court clerk will ask you swear or affirm that the testimony you are about to give is the truth, the whole truth, and nothing but the truth.)

The following four requirements must be met before the judge can give you a default judgment:

  1. The judge will make sure that the papers in the court file show that service of process was complete.
  2. The judge will ask you if the defendant is a member of the United States Armed Forces (currently on active duty in the Army, Air Force, Navy, or Marines). There is a federal law that default judgments cannot be entered against men and women who are on active military duty. You must be able to truthfully tell the judge that the defendant is not a member of the armed forces or that you have made reasonably diligent efforts, but were not able to find out, whether the defendant is a member of the armed forces.
  3. The judge will ask you if the defendant is a minor (under the age of 18) or if the defendant is incompetent (mentally disabled and unable to understand the nature of the proceedings). The judge cannot enter a default judgment against a minor or someone who is legally incompetent. You must be able to truthfully tell the judge that the defendant is not a minor and is not incompetent.
  4. The judge will ask you to briefly explain your claim and check any exhibits you have brought to verify that your claim has a factual and legal basis.


If these four requirements are met, the judge will enter a judgment in favor of the plaintiff. The judgment will state the amount of money the defendant is to pay to you or the personal property that the defendant is to return to you. The judgment will state that it is a default judgment and it will be signed and dated by the judge. You will be asked to sign a form stating that the defendant is not a member of the armed forces, not a minor, and not incompetent. The court clerk will either give a copy of the judgment to you at the hearing or mail one to you and the defendant afterward.

Default Affidavits – In some counties, default judgments are entered based on affidavits. The court clerk will tell you if you need a form called “Affidavit of Competence, Non-Military Service, and Amount Due.” Your affidavit must be typewritten or printed in black ink. Your affidavit must include the same caption (name of the court, names of the plaintiffs and defendants, and case number) as your claim. You must fill out the form completely and sign it in front of a notary or court clerk. If you sign the form in front of a notary, the notary must sign and seal the form. If you have any documents to support your claim, make a copy of those documents and attach them to the affidavit. When you have completed the affidavit, you must promptly give it to the court clerk for filing. The deadline for filing the affidavit varies from county to county. You should call the clerk’s office as soon as possible after the defendant’s deadline for filing an answer, verify that the defendant did not file an answer, and ask the court clerk what the deadline is for filing your affidavit. If there is not a deadline, your affidavit should be filed within two weeks after the defendant’s answer was to be filed. If your affidavit is not filed promptly, the judge may dismiss your claim without prejudice (which means that you can refile your claim later).

After your affidavit has been filed, the court clerk will give your case file to the judge for review. The judge will determine whether the four requirements for a default judgment have been met. You will be notified if the judge decides that the information in your case file is incomplete. If the judge decides that the information in your case file is complete, the judge will enter a judgment in favor of the plaintiff. The judgment will state the amount of money the defendant is to pay to you or the personal property that the defendant is to return to you. The judgment will state that it is a default judgment and it will be signed and dated by the judge. The court clerk will mail copies of the judgment to you and the defendant.

Setting Aside a Default Judgment – The defendant can ask the judge to set aside a default judgment by filing a form from the court clerk called “Motion to Set Aside Default Judgment.” The motion must be filed within a reasonable time and must show that the defendant had good cause for failing to file an answer to your claim. The defendant must also file an answer to your claim at that time. If the defendant files a motion to set aside the default judgment, one of the following three things will happen.

  1. The judge may decide that the motion shows that the defendant did not have good cause for failing to file an answer to your claim and deny the motion.
  2. The judge may decide that the motion shows that the defendant had good cause for failing to file an answer to your claim and grant the motion. The judge will set aside the default judgment and the court clerk will schedule a hearing for your claim. The court clerk will mail a notice of the date and time for the hearing to you and the defendant. You will also receive a copy of the defendant’s answer.
  3. The judge may schedule a hearing on the defendant’s motion. The court clerk will mail a notice of the date and time for the hearing on the motion to you and the defendant. The judge may decide at the hearing that the defendant had good cause for failing to file an answer to your claim and grant the motion to set aside the default judgment. The judge will then have the hearing on your claim. So, if you receive a notice of hearing to set aside the default judgment, you need to come to the hearing on the motion and be prepared to have the hearing on your claim, too. If you had costs from having to attend a second hearing, you can ask the judge to order the defendant to pay you for those costs. Or, the judge may decide at the hearing that the defendant did not have good cause for failing to file an answer to your claim and deny the defendant’s motion to set aside the dismissal.

The Defendant Files an Answer

If the defendant disagrees with your claim, and wants to contest the claim, the defendant must file an answer with the court clerk within 20 days after the defendant is served with process.

When the court clerk receives the defendant’s answer, the court clerk will schedule your claim for a “contested claim” hearing. This hearing is when you and the defendant come to court to tell the judge about your case.

Generally, the court clerk will schedule your hearing for a date within 30 days after the defendant files the answer. The court clerk will mail a notice of the hearing with the date and time to you and the defendant. The court clerk will include a copy of the defendant’s answer with your notice of hearing.

Rescheduling Your Hearing – If there is an urgent reason why you cannot come to court when your hearing is scheduled you can ask the judge to reschedule the hearing by filing a “Motion to Continue Hearing” with the court clerk. In most counties you can get a form from the court clerk. Your motion must be typewritten or printed in black ink. Your motion must include the same caption (name of the court, names of the plaintiffs and defendants, and case number) as your claim. You must explain why you cannot come to court when your hearing is scheduled and sign the motion. When you file your motion, the court clerk will give it to the judge and the judge will decide whether to reschedule the hearing. If the judge grants your motion (decides to change the date of your hearing), the court clerk will mail a notice of the new hearing date and time to you and the defendant.

Your motion must be filed before your hearing and in some counties there is a deadline of two weeks before the hearing for filing a motion to continue. You can ask the court clerk what the deadline is in your county. In any event, you will need enough time for the judge to consider your motion and if the motion is granted the court clerk will need time to notify you and the defendant of the schedule change before the hearing.

What Happens if You Don’t Come to the Hearing – If you do not appear at a default hearing or if you and the defendant do not appear at a contested claim hearing, the judge will dismiss your claim without prejudice (which means you can refile your claim later). If you do not appear at a contested claim hearing and the defendant does appear, the judge will dismiss your claim with prejudice (which means you cannot refile your claim later).

If your claim is dismissed with prejudice, you can ask the judge to set aside the dismissal. A request to set aside a dismissal should be made within two weeks after the judgment was entered. In most counties you can get a form from the court clerk called “Motion to Set Aside Dismissal with Prejudice.” The motion must be typewritten or printed in black ink. The motion must have the same
caption (name of the court, names of the plaintiffs and defendants, and case number) as your claim. You must explain why you were not at the hearing and sign the motion. After you file your motion with the court clerk, one of the following three things will happen:

  1. The judge may decide that your motion shows that you did not have good cause for failing to appear at the hearing on your claim and deny your motion.
  2. The judge may decide that your motion shows that you had good cause for failing to appear at the hearing on your claim and grant your motion. The judge will set aside the dismissal of your claim and the court clerk will schedule a new hearing for your claim. The court clerk will mail a notice of the new date and time for your hearing to you and the defendant.
  3. The judge may schedule a hearing on your motion. The court clerk will mail a notice of the date and time for the hearing on your motion to you and the defendant. The judge may decide at the hearing that you had good cause for failing to appear at the hearing on your claim and grant your motion to set aside the dismissal of your claim. The judge will then have the hearing on your claim. So, if you receive a notice of hearing on your motion to set aside the dismissal, you need to come to the hearing on the motion and be prepared to have the hearing on your claim, too. If the defendant had costs from having to attend a second hearing, the defendant can ask the judge to order you to pay the defendant for those costs. Or, the judge may decide at the hearing that you did not have good cause for failing to appear at the hearing on your claim and deny your motion to set aside the dismissal.

Settlement

You and the defendant can talk to each other to try to settle your case at any time before the court enters a judgment. Often, each party is more willing to try to resolve the case than the other party expects so it is worthwhile to try to settle the case even if you don’t think the defendant is interested in settlement. Generally, settlement negotiations are confidential—in other words, the judge generally will not consider anything the parties say as part of settlement discussions as evidence in the case. The reason for this rule is to encourage the parties to talk to each other openly to try to resolve the case.


Giving Notice of Your Claim

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The Hearing