A City of Justice
1. Procedures for Filing Small Claims
Requirements to file a Small Claim Complaint in this Court:
The first step in filing a Small Claim Complaint is to file a complaint. A sample form can be found by clicking here. The Small Claim Complaint will either need to be signed in front of the court’s deputy clerk or in front of a notary public. You will also need to attach a copy of any documents you have which support your claim.
The Court requires a filing fee be paid at the time of filing a Small Claim Complaint. The current filing fee to file against one Defendant is $36.00 plus $10.00 for each additional Defendant. If you win your case, you will be entitled to be reimbursed for the court costs provided you are able to collect on your judgment.
Service on Defendant(s)
At the time of filing a Small Claim Complaint, you will be given an initial court date and time. Normally, a copy of the Small Claim Complaint and Summons and any exhibits is sent by certified mail, return receipt requested, to each Defendant. In certain situations, a Defendant can be served by a bailiff or special process server (personal or residence service), but it costs slightly more. In the event that the certified mail comes back from the U.S. Postal Service marked either "unclaimed" or "refused", it will be sent out again by ordinary mail. It will be your responsibility to provide the correct address for each Defendant. If the certified mail comes back, for example, marked, "forwarding order expired," the trial date will be cancelled until such time as you provide another address at which certified mail service can be attempted and for which an additional fee of $10.00 will be charged. The case can remain open for a maximum of six months. If we are unable to obtain service on the Defendant within that time period, the case will be dismissed without prejudice which means that you will have the right to re-file if you obtain a new address in the future.
The Oregon Municipal Court is currently restructuring its Mediation Program. In the future, the Court will requires all Small Claims cases to participate in mediation prior to going in front of a judge. Once the Court has obtained service on the defendant(s), the case will be scheduled for Mediation and notices will be mailed out to all parties with the Mediation date and time. The parties must call and confirm that they will be present for the Mediation. Our volunteer mediators are attorneys and court staff who have been trained to mediate cases. At mediation, the parties and the mediator sit in a room and discuss how the case can be resolved without going to trial in front of a judge at a later date.
If you are the Defendant in a Small Claims case and you believe that the Plaintiff owes you money as a result of the same occurrence, you may file a counterclaim against the Plaintiff. If the counter- claim is for $3,000.00 or less, the case will remain in the Small Claims Division. However, if it is for more than $3,000.00, the case will be transferred to the regular civil docket of the court and will no longer be a small claim. A counterclaim must be filed at least seven days prior to the trial date. In order to file a counterclaim, you will follow the same procedure as the Plaintiff did in filing the complaint. The filing fee for a counterclaim is $20.00.
Transfers of Small Claims Cases to the Regular Docket
If a Defendant feels he/she has a good defense and discovery which is beyond what can be done in small claims is needed, the Defendant may file a motion to transfer the case from the small claims docket to the regular civil docket of the Court. If that happens, the case will most likely be transferred to the regular civil docket, and it will be recommended that you obtain an attorney. A sample Motion to Transfer can be found by clicking here. The filing fee to transfer a case to the regular civil docket is $57.00.
If you are unable to come to the Small Claims Trial when scheduled, you must file a motion for continuance in writing at least seven days prior to the trial date except in circumstances in which something occurred which necessitates a continuance in less than seven days prior to the trial date. In your request for a continuance, please include the caption of the case and the case number. Sign your request. You must also send a copy to the opposing party and state in your request that you are doing so and on what date you are mailing it to him/her. Sign your name again under that portion of your request. Mail the original request to the Court. A sample Motion for Continuance can be found by clicking here.
It is not necessary to have an attorney represent you in a Small Claims case. However, if you feel you need an attorney, you are welcome to have one present.
A corporation may file a case in Small Claims Court and participate in the Mediation process through an officer or an employee of the corporation. However, if the case is not settled at Mediation and the case proceeds to small claims trial, it will be necessary for an attorney for the corporation to be present at the trial.
If you need to have a witness come to trial to testify on your behalf and that person is unwilling to voluntarily come, you may request the Court issue a subpoena to either come and testify or to bring certain documents or items and testify. Requests for subpoenas need to be made at least ten days prior to the trial date. There is a fee involved for having the subpoena issued and served and also a fee for the witness.
A small claims trial is more informal than a trial in the civil division of the Court. The Plaintiff presents his/her case by testifying on his/her own behalf. Any witnesses for the Plaintiff (including the Defendant) may also testify. After each person testifies, the Defendant may cross-examine him/her by asking questions. Any exhibits will be presented to support the Plaintiff's claim. When the Plaintiff is finished with his/her case, the Defendant will testify as well as any witnesses, and the Plaintiff may cross-examine when each is finished testifying. The Defendant will present any exhibits. After the Defendant's case is finished, the Plaintiff may present more evidence rebutting the evidence of the Defendant. The Judge may ask questions of the parties or their witnesses during the trial. Each party may make a final statement summing up their positions.
Proving your Case
In order to prove your case, you should know as much about your case as you can so that you can inform the Court of the facts. You have the burden of proving your case by a preponderance of the evidence which means that it is more likely that you are entitled to win than not. Your evidence must prove to the Court that the party you are suing has done something which makes him/her legally responsible to you for damages. You must also prove the amount of the damages. If you can only prove a portion of the damages, that is all the judge will be able to award to you. If you do not know how to prove your damages, it is recommended that you seek legal advice.
Decisions by the Court
Default Judgment: If the Plaintiff appears for trial, but the Defendant fails to appear, the Plaintiff can ask for judgment by default against the Defendant for the amount stated in the Small Claim Complaint. The Court will make certain that a copy of the Small Claim Complaint was served on the Defendant and that the Plaintiff has a valid complaint for which he/she should obtain a judgment against the Defendant.
Dismissal Without Prejudice: If the Plaintiff fails to appear, but the Defendant does appear for small claims trial, the case will be dismissed without prejudice. This means that the Plaintiff has the right to re-file the complaint. If neither the Plaintiff nor the Defendant appears for trial, the case will also be dismissed without prejudice. Either way, the Plaintiff will have to pay the court costs involved should he/she wish to re-file the case.
Dismissal With Prejudice: If both parties appear, the case is settled, and the Defendant pays the amount agreed upon, the case will be dismissed with prejudice. This means that the Plaintiff cannot re-file the case.
Consent Judgment Entry: If both parties appear, the case is settled, but no money exchanges hands at that time, the Court will enter a consent judgment reflecting the settlement agreement.
Judgment: When the Small Claims Trial is concluded, the Court will either give the decision from the bench or take the matter under advisement. If a case is taken under advisement, a decision will be rendered within thirty (30) days when ever possible. A copy of the written decision, signed by the Judge and journalized, will be sent to each party.
Appealing a Decision
If the case is settled through mediation, you may not file an appeal.
If you object to the Judge's decision, you will have a thirty day period (which begins on the date that a filed and journalized copy of the Judgment Entry is sent to you) within which to file a Notice of Appeal to the Lucas County Court of Appeals. The Notice of Appeal is filed at the trial court. The proceedings in the court room are recorded, and you will have to hire a court reporter to transcribe the proceedings of your trial. Several documents must be filed besides the Notice of Appeal, and additional court costs must be paid to both the trial court and to the Court of Appeals. It is a very complicated process, and it is highly recommended that you obtain legal counsel if you wish to appeal the Judge's decision.
2. Collecting on Your Judgment
If you won in small claims court, you become the judgment creditor and have the authority to ask the court to attach any nonexempt property or income of the judgment debtor, and dispose of that property to satisfy the judgment. The court will not automatically obtain the money for you. You must initiate the procedures to attempt to collect on your judgment.
If you do not know where the judgment debtor works or banks or if he/she owns real estate, it may be difficult to collect on your judgment. Your judgment will remain active for at least five years. Even if it is not possible to collect at the present time, it may be possible in the future.
If you know where the judgment debtor works or banks or if he/she owns his/her own home, there is an excellent chance that you will recover the entire amount of your judgment.
You may first want to write a letter to the judgment debtor asking for payment in full or the possibility of setting up a payment plan. Be sure to remind him/her of the amount owed including court costs. Request that he/she respond within a reasonable amount of time, such as two weeks. If the judgment debtor sends you a personal check for a partial payment, be sure to make a note of the bank and the account number to use if the need to file a bank garnishment arises in the future.
Judgment Debtor Form
If you do not know where the judgment debtor works, where he/she banks, if he/she owns his/her own home, or any other information which would be helpful in collecting on a judgment, you can request the clerk to order the judgment debtor to fill out a form disclosing such information regarding his/her assets, liabilities, earnings, and finances. There is a fee of $7.50 required which must be paid up front but which is recoverable from the judgment debtor. The form will be sent to the judgment debtor by certified mail, and he/she will have seven days to respond.
If the judgment debtor form is not appropriate or has failed, the judgment creditor may request to have a debtor's examination in which the court orders the judgment debtor to appear at a certain date and time and answer under oath questions similar to those on the judgment debtor form. A sample request can be found by clicking here.
If the judgment debtor is a business, the judgment creditor can request that the bailiff go to the place of business and take money from a cash drawer, tag items of inventory, and equipment belonging to the judgment debtor. Normally, to avoid embarrassment, the judgment debtor will simply write a check payable to the court for the amount owed or make satisfactory arrangements for payment with the judgment creditor. However, if the judgment debtor is not in a position to write a check, it is possible that a bailiff's sale will have to be held in order for the tagged items to be sold and the proceeds applied toward the satisfaction of the judgment.
Garnishment of Wages
Prior to filing a garnishment of personal earnings, the judgment creditor must mail to the judgment debtor at his/her last known address a Notice of Court Proceeding to Collect Debt. It must be sent either by certified mail or by ordinary mail using a certificate of mailing as proof that it was sent to him/her. You must keep a copy of the notice. After fifteen days have passed since the notice was mailed (if the judgment debtor has not done any of the three items listed on the notice to prevent the garnishment), the judgment creditor will have a thirty day period within which to file the garnishment. Bring to the clerk your copy of the Notice and the stamped certificate of mailing or certified mail receipt. There is a filing fee involved which is included in the total amount due on the garnishment. The employer (garnishee) must respond to the garnishment, and if the judgment debtor is employed by the garnishee, the court should receive checks from the employer each time the judgment debtor is paid (or once a month if the employer chooses to do so). The garnishment will continue until the amount owed is paid in full, for six months if another garnishment on that judgment debtor is filed by a different judgment creditor, the judgment debtor no longer is employed by the garnishee, or he/she files a trusteeship or bankruptcy. Garnishment forms can be purchased from:
Toledo Legal News, 247 Grandolph St., Toledo, OH 43612 (419) 470-8600 www.toledolegalnews.com
Downtown Print Shop, 520 Madison Avenue, Spitzer Arcade, Toledo, OH 43604 (419) 242-9164 www.downtownprintshop.com
Garnishment of Other Than Personal Earnings
There is no prior notice sent to the judgment debtor with this type of garnishment, and it is used to obtain funds from a third party-usually a bank or credit union. Forms can be obtained from the Toledo Legal News. There is a filing fee involved which is included in the total amount due on the garnishment. If there is enough money in the judgment debtor's bank account to cover the entire amount owed, the bank will send a check to the court for the entire amount. If not, the bank will send the amount that is the account exceeding $400.00 at the time the garnishment is received. If the bank indicates that the judgment debtor has no accounts at that bank, a response will be sent to the court indicating that there are no accounts in the judgment debtor's name, and a copy will be sent to the judgment creditor. If the judgment creditor does not know where the judgment debtor banks, garnishment can be attempted at various banks, although it may be a waste of court costs to do so.
Liens on Property
If the judgment debtor owns his/her own property, the judgment creditor may obtain from this court a Certificate of Judgment which can then be taken to the Judgment Lien Department at Common Pleas Court where the lien will be put on his/her property. There are fees involved at both courts. The filing fee for this Court is $15.00. The form required for requesting a judgment lien can be found by clicking here. If the judgment debtor sells his/her property in the future, the judgment creditor will receive his/her money.
3. Procedures for Filing Landlord's Complaints
Landlord's Complaints [or FED (Forcible Entry and Detainer) Complaints] are filed by landlords to evict tenants from rental property because tenants have failed to pay rent, damaged the property, stayed beyond the term of the lease, etc. FED Complaints can also be used anytime real property is wrongfully withheld from the rightful owner, such as default on a land installment contract.
FED Complaints are designed to return the property to the landlord or rightful owner within a reasonable amount of time. The landlord can file for restitution of the premises only (first cause of action) or he/she can also file for back rent and damages (second cause of action).
Before a tenant can be evicted, Ohio law requires that the landlord notify the tenant(s) to leave the premises in writing at least three days prior to the filing of the Landlord's Complaint. Notices to leave premises must meet the legal requirements of Ohio law and may be obtained from the Toledo Legal News. The notice can be served in one of three ways: 1. certified mail, return receipt requested; 2. handing a written copy of the notice to the tenant personally; or 3. by leaving the written notice at the tenant's usual abode or the place from which the tenant is being evicted.
Notices to leave premises must be in writing and contain the following language in a conspicuous manner: "You are being asked to leave the premises. If you do not leave, an eviction action may be initiated against you. If you are in doubt regarding your legal rights and obligations as a tenant, it is recommended that you seek legal assistance."
As an example of the process, a landlord serves the tenant with the Notice to Leave Premises by posting the written notice on the tenant's door on Monday, March 5th. The Landlord's Complaint cannot be filed with the Court until Friday, March 9th. The landlord must bring a copy of the Notice to Leave Premises, a copy of the lease if it is a written lease, the Landlord’s Complaint, and court costs.
Once the Landlord's Complaint is filed, a hearing is scheduled usually 14-21 days thereafter. The Bailiff serves the tenant(s) with a copy of the Landlord's Complaint and Summons by personally handing it to the tenant(s), leaving it with someone else who lives in the premises, or by posting it on the door in a conspicuous place (such as by hanging it on the door). A copy is also sent to the tenant(s) by ordinary mail using a Certificate of Mailing as proof of mailing. The landlord may request that a third copy be sent to the tenant(s) by certified mail, return receipt requested, for an additional fee.
At the eviction hearing, the landlord must testify as to how and when the Notice to Leave Premises was served on the tenant(s), among other facts. The eviction hearing is only for the landlord's first cause of action for restitution of the premises. If the landlord has filed for the second cause of action for the back rent and damages, the case will be continued as to that cause of action.
If all essential elements are met to the Judge's satisfaction, judgment for restitution of the premises will be granted to the landlord, and the tenant(s) will have ten days to vacate the premises. If the premises are not vacated by noon on the tenth day, the Bailiff will schedule a date and time for the tenant's possessions to be set out to the curb, but the landlord must provide the manpower, bags and boxes.
If the landlord has filed for the second cause of action for back rent and damages, the tenant will have 28 days (from the date that a copy of the Landlord's Complaint and Summons was mailed to the tenant) to file an Answer contesting that the money is owed to the landlord. If 28 days has passed, and the tenant has not filed an Answer, the landlord may move for default judgment by filing a Motion for Default Judgment and an Affidavit of Damages. If the landlord is asking for back rent only, no further hearing will be required. However, if the landlord is also requesting to be reimbursed for damages to the property, unpaid utility bills, etc., the case will be scheduled for a Damage Assessment Hearing. At that hearing, the landlord must provide receipts and testimony regarding the damages in order to have those amounts included in the judgment.