If You're the Defendant ... Responding to the Lawsuit

What Should You Do After You Receive an Order to Appear?

Letís assume that youíve been named as a defendant in a small claims court action. You know this because you have received and have read a court order entitled Plaintiff ís Claim and ORDER to Go to Small Claims Court (Form SC-100). The papers that you have received order you to attend a small claims court hearing at a date, time, and place specified in the order.

Receipt of such a document means that you are being sued by someone elseócalled the plaintiff. You probably know why you are being sued. If you donít know why youíre being sued, contact the plaintiff immediately for an explanation. The plaintiff ís name and address appear on the plaintiff ís claim form (Form SC-100) that was served on you.

Never ignore an order to appear in court, even if you believe there is something wrong or unfair about the case, or that the plaintiff ís claim is invalid or was not properly served. Thatís because your own best interests require you to do something. If you donít come to court, the court may hear and decide the case without you. Even though the plaintiff must still prove what he or she is entitled to recover from you, the judge may decide the case without hearing your side of the dispute unless you appear.

If a court judgment is issued against you, your money or property, and maybe some of your earnings, can be taken forcibly to pay the judgment. In addition to that, your credit record may include the fact that a judgment was entered against you. If you are a member of a licensed profession or occupation, the judgment might be provided to the agency that licenses you. To prevent any of that from happening, donít ignore an order to appear!

What if You Owe All or Part of the Plaintiffís Claim?

If the plaintiff ís claim is valid, or if the plaintiff is entitled to receive part but not all of the amount that he or she has claimed, you probably can save yourself money, time, and inconvenience by resolving the dispute before the hearing date. If you go to court and the plaintiff wins, you may have to pay the plaintiff ís court costs, and possibly also interest, in addition to the amount you already owe, and the judgment may appear on your credit record long after youíve paid it.

You can try to reach a settlement (voluntary resolution of the matter) with the plaintiff, or let the court decide the case. If youíre unable to resolve the matter directly with the plaintiff, you should plan to appear at the date, time, and place set for the hearing, unless you have received official notice of a new court date, a transfer to another court, or some other action by the court that excuses you from coming to court at the scheduled date, time, and place.

Itís always a good idea to talk or write to the plaintiff before the hearing. The dispute may be based on a misunderstanding that you and the plaintiff can easily clear up. If you believe that you owe the plaintiff something, but donít have the money needed to pay it now, you can offer to pay the amount you believe you owe by weekly or monthly payments. In that situation, you should take the following steps: (1) ask the plaintiff to dismiss the case without prejudice (with the result that the plaintiff can re-file the claim if you donít carry out your promises), and (2) reach an agreement with the plaintiff that covers each of the following subjects:

  • The total amount you agree to pay, including any interest and court costs.
  • The amount of each installment payment.
  • The total number of installment payments.
  • The dates of the payments, such as ďthe first day of each month.Ē
  • The date on which the first payment is due.
  • The duration of the ďgrace periodĒ for paying an installment, and the effect of a failure to pay. For example: ďIf any installment is not paid within 10 days after the date on which it is due, the entire unpaid balance of the debt shall be immediately due and payable.Ē

If you persuade the plaintiff to dismiss the case without prejudice, and you pay the amount that you have agreed to pay, the claim will not appear on your credit report as a judgment. (ďWithout prejudiceĒ means that the plaintiff can file another suit if you donít pay.) Keep in mind that by entering into an installment payment agreement, you are waiving (giving up) your right to have the court determine whether you owed the debt. If you donít pay the debt, the plaintiff can simply bring this agreement to court and ask the court to issue a judgment which states that you owe the amount stated in that agreement.

Even though you may be able to offer a defense to all or part of the plaintiff ís claim (on the basis that you owe nothing, or that you owe less than the amount of the plaintiff ís demand), and have informed the plaintiff why this is so, itís possible that the plaintiff will refuse to reduce or withdraw the claim. In that situation, you can try to persuade the plaintiff to select a neutral third person to help you and the plaintiff resolve the dispute informally. (See ďHave You Considered Mediation?Ē) Most neighborhood dispute resolution centers offer mediation services.

If there isnít enough time to obtain help from a neutral third person or a neighborhood dispute settlement center before the hearing, you can appear at the hearing and ask the judge to postpone the hearing to a later date in order to give you and the plaintiff time to attempt to resolve the dispute through mediation, arbitration or other informal means. The judge, at his or her discretion, can postpone the hearing if either party requests a postponement for that purpose.

What if You Canít Resolve the Dispute Informally?

If you canít resolve the dispute, make sure that you attend the hearing and are prepared to present evidence through documents or witnesses to explain your side of the case to the judge. (See ďMaking the Best of Your Day in CourtĒ)

Unless youíre present in court, the judge canít possibly know whether you have a defense to the plaintiff ís claim. If you think that the claim is too old to be enforceable, or that the plaintiff, rather than you, caused the loss that the plaintiff wants you to pay for, you must tell this to the judge. The judge will welcome your presence in court. He or she wants to hear both sides of the dispute before deciding. Also look closely at the amount claimed by the plaintiff. If itís a total of several items, ask yourself: Do I really owe each item? Are the plaintiff ís calculations correct? Are the claims for extras, such as interest or late charges, all properly chargeable? Are the amounts charged more than they should be?

If you have questions about the hearing, check with a small claims adviser before the hearing, or state your concerns to the judge at the hearing. If the plaintiff is suing on an unpaid debt or account, the plaintiff ís claim form should itemize and describe each fee and charge that has been added to the original agreed amount, and should also acknowledge receipt of any payments that you have made on the account.

What if You Canít Attend the Court Hearing?

If you need to have the hearing postponed to a later date, you can prepare and file a written request to Postpone Trial (Small Claims) (Form SC-150). You must file your request with the clerk of the small claims court, and must send a copy of your request to the other party. You must file your request no less than 10 days before the trial. Otherwise, you will need to explain why you did not ask earlier, and you may need to go the hearing and ask for the postponement in person.

As a general rule, a filing fee of $10 must accompany your written request for a postponement. However, no fee is required if you request a postponement either (a) before the plaintiff has served the plaintiff ís claim form on you or (b) because you werenít served the required number of days before the hearing (15 days if you reside in the county where the claim is filed, or 20 days if you reside outside the county where the claim is filed).

You must have a sufficient reason to receive a postponement of a court hearing date. If the plaintiff did not contact you before filing suit, and you and the plaintiff have not talked about the plaintiff ís claim, that may be sufficient reason to postpone the hearing. A postponement will give you and the plaintiff time to meet and discuss the claim, and consider settlement options.

The court usually will postpone a scheduled hearing in the following situations: (1) the plaintiff hasnít been able to serve the defendant, (2) the defendant wasnít served a sufficient number of days before the hearing date, (3) the defendant filed a claim of defendant and the plaintiff wasnít served with the defendantís claim at least five days before the hearing (unless the defendant was served with the plaintiff ís claim less than 10 days before the hearing, in which case the defendant may serve the plaintiff as late as the day before the hearing), or (4) the court determines that the parties desire to engage in mediation or other form of alternative dispute resolution. If youíre unsure whether your particular reason may be a good enough reason for the court to postpone the hearing date, check with a small claims adviser in the your county where the claim was filed.

What if the Service of Process Rules Werenít Followed?

Youíre entitled to receive at least 15 daysí advance notice of the hearing (or 20 daysí advance notice if you reside outside the county in which the court is located). If you didnít receive proper advance notice, youíre not legally obligated to appear at the scheduled hearing. However, if you received some advance notice but donít plan to appear, itís better to call or write the court and explain why. If the required notice wasnít given to you on time, the court will reschedule the hearing if the court is informed that the rules on service of process were not followed.

Even though you werenít served properly, you still may want to attend. Ordinarily, you shouldnít refuse to attend simply because you received a late notice. Only if the late notice has made it more difficult to prepare for the hearing or attend it should you object to the late service. For example, the claim may have been dropped at your doorstep, instead of having been personally served on you, or it may have been served on your neighbor, who promptly gave it to you. In both of these cases, service was technically improper, but it didnít make any difference to you, because you knew about the claim and had enough time to prepare.

By attending the hearing, even if service of process was late or otherwise improper, you can present your defense and perhaps end the dispute without further delay. If you donít attend, the plaintiff may incur additional costs to serve you, and, if you ultimately lose the case, you may have to pay these added costs. There is still another reason for you to attend the hearing, even if you were served late. If you donít appear, the court may issue a judgment against you in your absence (provided that plaintiff offers sufficient evidence of the amount owing). In that event, you would have to prepare and file a request to overturn this judgment, which may entail yet another hearing.

If you were not served within the legal time limits (15 days before the hearing if you live within the county and 20 days if you live outside) and you really need more time to prepare, you probably should prepare and file a Request to Postpone Trial (Small Claims) (Form SC-150) and explain exactly why you are making the request. As in all of your interactions with the court, be candid and straightforward.

What if the Plaintiff Hasnít Filed in a Proper Court?

If you believe the court in which the plaintiff has chosen to file the action is not a proper court (see ďWhere Do You File Your Case?Ē), you have the following options. (Keep in mind that in some situations, an action might be filed in any one of several different courts, and that the rules that determine what courts are ďproperĒ may in any case result in some measure of inconvenience to one side or the other.) Here are your options:

  • Appear at the hearing and do not challenge the plaintiff ís choice of court. If you feel that it would not be inconvenient to have the hearing held in the county (or area of court location within the county) that was selected by the plaintiffóbecause, for example, you live in a neighboring county only five miles from the courthouseóyou could appear and waive (give up) your right to challenge the plaintiff ís choice of court.
  • Challenge (object to) the plaintiff ís choice of court at the scheduled hearing. If the judge decides that the plaintiff ís choice of court was proper, then you can proceed with the hearing. If the judge decides that the plaintiff filed the case in an improper county, the judge must dismiss the case without prejudice. If the case was filed in a proper county, but in the wrong court location within that county, the judge has discretion to either transfer the case to a proper court location within that county, or order the case dismissed without prejudice. However, some judges have rejected venue challenges (objections to plaintiff ís choice of court) because the defendant showed up to make the objection. These rejections were based on the fact that defendants appeared personally to make the objection without first filing a venue challenge; consequently, their personal appearance to court was considered to be a waiver of their venue challenge. It may be advisable for defendants to challenge venue or the court location in writing, or at least submit a written challenge to the court first before appearing (see next paragraph).
  • Challenge the plaintiff ís choice of court by writing to the court. This is probably the easiest option, particularly if you live a long way from the court, or if itís not convenient for you to attend. You merely write a letter to the court explaining why the plaintiff ís choice of court wasnít correct. If the judge disagrees with you and youíre not present at the hearing, the judge must postpone the hearing for 15 days. If you have challenged the plaintiff ís choice of court in this way, the judge canít decide the case in your absence. If the judge determines that the plaintiff ís choice of court was wrong, then the case must be dismissed without prejudice.

Even if you donít challenge venue, itís a duty of the judge to verify that the court selected by the plaintiff is properóthat is, to look into the facts sufficiently to be able to decide whether there is a legal basis for filing the case in that court. If the judge decides that the court that was selected by the plaintiff is a proper court, the judge may (but only on rare occasions) transfer the case to another court whose location is more convenient to the parties and their witnesses. For example, if you have many witnesses who must travel to the court from a distant location, the judge may order the case transferred to a court near that location. In evaluating transfer requests, the courts give greater weight to the convenience of disputants who are individuals than those that are legal entities such as corporations, partnerships and public entities.

What If the Plaintiff Owes YOU Money?

If you believe the plaintiff has caused you injury or owes you money for any reason, you can file a defendantís claim against the plaintiff in the same small claims court action. A defendantís claim does not need to be related to the plaintiff ís claim. A defendantís claim could have arisen from a completely different event or transaction. A defendant can file a claim against the plaintiff by completing and filing a Defendantís Claim and ORDER to Go to Small Claims Court (Form SC-120). If your case is related to the subject of the plaintiff ís case, it may be helpful and convenient for everyone to have it resolved it at the same hearing. The small claims court can resolve both disputes.

If you file a claim against the plaintiff, the same basic rules and procedures generally apply. Legal principles, such as statutes of limitations (which limit the filing of old claims) also apply. Ordinarily, the plaintiff must receive a copy of the defendantís claim (Form SC-120) at least five days before the scheduled hearing date. However, if you received the plaintiff ís claim less than 10 days before the scheduled hearing date, then you can serve your claim as late as one day before the scheduled hearing date. Always have the papers served as early as possible.

Think carefully. If the amount of your claim against the plaintiff exceeds the monetary limit allowed for your claim (see "Basic Considerations and Questions"), you may be able to have your case treated as a regular superior court action (in which attorneys may participate) by having the case transferred. (If youíre a natural person (an individual) and have not already filed more than two actions for more than $2,500, your case cannot be transferred and treated as a regular superior court action unless your claim exceeds $7,500.)

If your claim is for a large amount, itís best to consult with an attorney or small claims adviser before filing a defendantís claim against the plaintiff in small claims court. (Review ďIs Small Claims Court Your Best Option?Ē)