Small Claims Court
A small claim is defined as a civil action for a sum up to $10,000 exclusive of interest and costs.
Following is a brief overview of the process for filing and pursuing a small claims case. If you cannot afford an attorney, it is your right to represent yourself in Small Claims Court, whether you are the plaintiff or the defendant.
If an individual wishes to proceed under these Rules without the benefit of legal counsel (to act “pro se”), he/she must do all the investigation and preparation normally done by an attorney. This includes appearing in the courtroom, securing witnesses, collecting documents and evidence, and all other necessary preparation. The rules of law and evidence apply to small claims trials.
The Judge, Circuit Clerk, and the Sheriff are all guided in these proceedings by Illinois Supreme Court Rules. As officers of the court, State law prohibits them and their employees from giving legal advice. They can answer general questions regarding forms and procedures, but cannot counsel litigants. If your questions cannot be satisfactorily answered at this site, or at the self-help center at the Madison County Courthouse, you should consult an attorney.
The rules relating to “Small Claims” cases are set forth in the Rules of the Illinois Supreme Court. They are designed to enable an individual to collect a debt, or settle any small legal controversy, without going through as much legal process and expense as might be required by a more substantial claim. Supreme Court Rules and applicable Illinois Statutes (http://www.ilga.gov/) are available for review online at or in the Law Library (http://madisoncountycircuitcourt.org/selfhelp/) at the Madison County Courthouse.
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FILING THE ACTION
To file a small claims suit, the individual bringing the action (the “plaintiff”), must pay a filing fee of $89.00 on cases up to $2,500.00. For suits in an amount over $2,500.00 and up to $10,000.00, the filing fee is $264.00. These fees are paid when filing the case in the Circuit Clerk’s Office.
Small Claims cases may be filed in the Office of the Circuit Clerk at the Courthouse in Edwardsville from 8:30 a.m. to 4:30 p.m. Monday through Friday, except on legal holidays observed by the court. All small claims cases are heard at the Madison County Courthouse in Edwardsville.
The plaintiff must file a “complaint” (see Complaint form). The complaint must set forth the following information:
The correct name, address and phone number of both the plaintiff and the “defendant” (the party being sued). It is very important that the correct legal names of the parties be set forth in the complaint. Failure to do so may result in serious difficulties (i.e., the suit may be dismissed or an uncollectible judgment may be entered against a non-existent person). If an error is made, you may file a Motion to Amend in order to correct the information.
If the defendant is a corporation, plaintiff must list the name and address of an officer of the corporation or the name and address of its registered agent. To learn if a business is a corporation and to obtain its legal name, consult the Certified List of Domestic and Foreign Corporations through a call to the Illinois Secretary of State’s Incorporation Division (217/782-6961) or online at www.cyberdriveillinois.com/departments/business_services/corp.html. Note the name of the registered agent, who is one of the persons upon whom a summons can be served.
In accordance with Supreme Court Rule 282(b), a corporation may not appear as a plaintiff without being represented by an attorney. However, when the amount claimed does not exceed $1500, a corporation may defend a small claims proceeding through any officer, director, manager or other person vested with the responsibility of managing the affairs of the corporation.
- The correct address or place of employment of defendant. If the defendant cannot be found and service of the process cannot be made, the court cannot enter a judgment.
- The nature and amount of the plaintiff’s claim, giving dates and other relevant information. If the claim is based on a written instrument or contract, a copy of that document must be attached to the complaint. If the document cannot be found, a notarized affidavit must be attached to the complaint.
Click here to file your complaint electronically
SERVICE OF SUMMONS
A “summons” is a legal document which notifies the defendant that s/he is being sued and of the date for the first appearance hearing. A case may not be heard until the defendant is served the summons.
The summons may be personally served on the defendant or her/his agent by the Sheriff, a licensed private investigator, or a “private process server” (See Terms and Definitions). At the request of the plaintiff, and if the defendant resides in the state, service may be made via certified mail by depositing a mailing fee with the Clerk for each defendant to be served along with the original and one copy of the summons for each defendant, as well as an affidavit setting forth each defendant’s last known mailing address. However, if a defendant refuses to accept certified mail, the plaintiff may be required to request another summons be issued and served by the Sheriff, licensed private investigator or private process server. Additional fees will be required.
If the plaintiff wishes to have service of summons made by a private process server, a written motion for appointment of said process server and a proposed order should be filed at the time of the filing of the complaint (see Motion to Appoint Process Server form). The motion and order must set forth the identity of the process server. (The person appointed private process server may not be related to the plaintiff and/or have any interest in the case.)
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When a suit is filed, the clerk will set a court date (called an “appearance date”) of not less than 21 days nor more than 40 days after the issuance of the summons. If the defendant fails to appear, it may be that he/she was not served with the complaint and summons. If this is the case, then the plaintiff must request a second, or “alias” summons and in most cases it will be necessary to have the alias summons served by the Sheriff or other process server. Additional fees are required for an alias summons.
As set forth in the summons, the defendant is required to appear on the appearance date if a written answer has not been previously filed. If the defendant admits to liability, the court (judge) will enter judgment in favor of the plaintiff. If the defendant fails to appear, judgment will be entered in favor of the plaintiff provided that: 1) the plaintiff’s complaint is verified and 2) there is a completed proposed default judgment order on file with the Circuit Clerk’s Office (see Consent/Default Judgment form). If the complaint is not verified, the plaintiff will have to produce some form of evidence. Verification is a process whereby someone familiar with the facts signs the complaint, guaranteeing that everything provided for in the complaint is accurate. The proposed default judgment order must be filed with the Circuit Clerk’s Office within 10 days of the defendant’s appearance date. Failure to do so may lead to the case being dismissed for want of prosecution.
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RESPONSE TO A SMALL CLAIMS COMPLAINT
If sued in Small Claims Court, the defendant or defendant’s attorney may do any one of the following:
- Appear on or before the appearance date and time, and advise the court whether defendant admits or denies the claim. If the defendant appears and denies the claim, an answer fee must be paid at the time of the appearance. An answer fee of $109.00 is required if claim is $2,500.00 or under; if the claim is over $2,500.00, the answer fee is $189.00. If the defendant cannot afford to pay the answer fee, s/he must file an “Affidavit and Application to Sue or Defend as an Indigent Person” (see Indigency form). The application will be presented to the court. If the application is approved by the judge, the answer fee is waived.
- File a written answer with the Circuit Clerk on or before the appearance date (see Answer form). The above-stated answer fee is due at this time.
- File a lawsuit (“counterclaim”) against the plaintiff alleging the plaintiff owes defendant money in connection with the original claim filed by plaintiff.
- Settle the dispute on or before the first appearance date.
The defendant may contact the plaintiff to attempt to settle the matter out of court. The fact that the defendant offered to settle the case will not be held against her/him at the trial. If the defendant settles out of court after being served with a complaint and summons, it would be prudent to put the settlement in writing.
The plaintiff is encouraged to appear for the defendant’s first appearance date. A judge will be available to sign agreed judgment orders.
If plaintiff receives settlement money before the court date, s/he should notify the Circuit Clerk, in writing, that the case has been settled and ask that the case be dismissed. If the case has been settled, but the plaintiff has not received the settlement money, s/he should go to court and ask the judge to continue the case until the money has been received. After receiving the money, plaintiff should notify the Circuit Clerk, in writing, to have the case dismissed.
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Either party to the suit may demand a trial by jury. If the plaintiff wants the matter to be tried by a jury, the demand must be made at the time of filing the complaint. The case will then be decided by a six- or 12-member jury. The defendant must make this demand at the time of filing the answer. Otherwise the defendant is considered to have waived his/her right to a jury trial. The party demanding a jury must pay $12.50 for a jury of six or $25 for a jury of twelve. It would be advisable to consult an attorney before making a jury demand, since a trial by jury is a more complicated proceeding.
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TRIAL OF THE CASE
All small claims cases will be tried by the court (judge) unless a jury demand has been filed. A trial in Small Claims Court is normally simple and somewhat informal. The judge listens to both parties as well as the witnesses, examines the evidence presented, and then decides the case.
It is very important to know the exact date and time of trial and to be there on time. A failure of either party to appear for trial may result in a judgment against that party. If there is very good reason one cannot be in court, a continuance must be requested by filing a written motion and order for continuance with the Circuit Clerk before the trial (see Pro Se Motion form). The judge must make a ruling on the motion. If the motion is not heard and allowed prior to the trial date, failure to appear on that date by the defendant may result in a default judgment being entered against her/him. If the plaintiff fails to appear, the case can be dismissed for want of prosecution.
On the day of the trial, both parties should bring all physical evidence that pertains to the case. They may also call witnesses to testify in support of their claims. If a witness is required for the case but reluctant to appear, a “subpoena” may be necessary. A subpoena is an order of the court commanding a person to appear and testify at the trial. Subpoena forms are available from the Circuit Clerk.
The trial proceeds on the date set by the court, a notice of which will be sent to both sides by the Clerk. Both parties go into court before the judge (or jury) and plaintiff proceeds by making a short opening statement on the nature of his/her case, and what he/she thinks the evidence or witnesses will prove. Defendant then has an opportunity to make a short statement as to the nature of his/her defense and what he/she expects the evidence or witnesses to prove. Any witnesses are then sworn and examined on the witness stand. After each witness testifies, the opposing party has an opportunity to cross-examine the witness as to anything so testified. (This means to ask any questions that are material and relevant to the testimony of the witness, not to argue or attempt to testify).
The judge may ask questions. If so, they should be answered as directly and fluently as possible.
After each party has presented her/his case (i.e., witnesses, exhibits, etc.) s/he has an opportunity to present a short closing argument or summary of the evidence, and why the Court should find in her/his favor. The judge will decide the facts from the evidence introduced during the trial, then apply the law to these facts and enter a judgment for one of the parties.
Because of the complex procedural and evidentiary problems that may arise, it is very difficult for a judge in small claims court to apply all the strict formal rules of trial procedure and evidence, particularly where one or more of the parties is not represented by counsel. Therefore, the judge will exercise his/her judicial discretion in the trial of a small claims case.
However, it is important to note that judges are not responsible to try a case for a pro se litigant. If a party chooses not to have legal counsel, the responsibility to produce competent, admissible evidence to prove his/her case on the date set forth for trial rests with that party.
It is not possible to review the entire field of admissible evidence in the space available, but a brief mention of the more fundamental procedures is covered below:
- Informal Hearing - In any small claims case where the amount claimed by a party does not exceed $1000, the court may, on its own motion or on motion of either party, adjudicate the dispute at an informal hearing. At the informal hearing all relevant evidence shall be admissible and the court may relax the rules of procedure and the rules of evidence.
- Repair Bills and Estimates - If a claim is based on a written instrument or contract, submit it with the complaint. Also bring to trial all estimates of repair and letters or writings that may have some bearing on the case. Admissibility of any such documents will be determined by the court.
- Expert Testimony - If a claim of the plaintiff or the defendant is based on poor workmanship, or workmanship is in any way involved, testimony of an expert would normally be required. If it is carpentry work, you should have a carpenter inspect the job and appear to testify as to the manner in which the work was done, and how much it would take to rectify the damage or loss.
- Judgments - Once the court decides the case, the judge enters a judgment (for the plaintiff or the defendant) for whatever amount is found to be due, and assesses court costs. This judgment becomes final 30 days after the date judgment is entered, unless defendant files a Motion to Vacate (see Pro Se Motion form) or a Notice of Appeal (there is no prepared form for a Notice of Appeal).
Once a judgment has been paid in full, a form called a “Small Claims Satisfaction of Judgment or Dismissal of Cause of Action” must be given by the plaintiff to the defendant (see Satisfaction of Judgment form). The defendant must file the release with the Circuit Clerk.
Many people believe that by merely filing a complaint, a judgment will be entered and the court, Circuit Clerk, or Sheriff will act to have the money paid. The burden is on the plaintiff to take appropriate action to effect collection of the judgment if the defendant refuses to pay.
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After judgment has become final, plaintiff may proceed with post-judgment procedures which would cause additional court costs to be assessed against the defendant. The defendant may contact plaintiff and attempt to reach an agreement as to payment of the judgment and court costs in an effort to save additional costs being assessed against defendant.
Some of the more common post-judgment procedures available to assist in the collection of judgments are briefly summarized below (additional fees for these procedures and any related services may be required):
- Wage Deduction - This summons is issued by the Circuit Clerk upon request by the plaintiff to the defendant’s employer. Once served on the defendant’s employer, a percentage of the defendant’s wages must be withheld. A wage deduction is a permanent lien on the employee’s wages until the judgment has been satisfied. Prior to filing a wage deduction order, the burden is on the plaintiff to be certain that the defendant is currently employed by the named employer, and that there are no previous wage deduction orders filed against the defendant’s wages. If a previous order is still current or the defendant is no longer employed there, it is useless to file. Out-of-state employers do not have to honor a wage deduction. The original summons and service page are returned to the Clerk after service. Copies of the summons and the Title III Federal Consumer Protection Act Restrictions on Garnishment are served on both the employer and the defendant (see Wage Deduction forms, which include Instructions for Wage Deduction, Affidavit for Wage Deduction Order, Interrogatories/Answer, Wage Deduction Notice and Summons, Service Page, Title III Restrictions on Garnishment, Wage Deduction Order, Non- withholding Wage Deduction Order, and Certification of Judgment Balance).
- Garnishments - If the plaintiff knows of any third party who owes or holds funds due the defendant (a bank account, money owed for labor, etc.), the plaintiff may serve a garnishment summons on this third party. Upon service of the summons, the third party must hold these funds until the court orders whether or not they should be turned over to the plaintiff to satisfy the judgment (see Non-Wage Garnishment form.)
- Writ of Execution - If the plaintiff knows of any property owned by the defendant, he/she may request that a Writ of Execution be issued by the Circuit Clerk to attach and sell said property. Possession of property alone is insufficient to warrant seizure by the Sheriff for sale (the property may be mortgaged in someone else’s name or subject to previous liens or attachments).
- Citation to Discover Assets – A Citation to Discover Assets is a mandate, or order, by the court that the defendant appear before a judge in open court to be examined by the plaintiff as to any assets, funds, etc., that defendant may have with which to satisfy the judgment. The citation will be issued by the Circuit Clerk, but the petition for such a citation must be filed by the plaintiff (See Citation to Discover Assets form, which includes Citation, Citation Notice, Third Party Citation to Discover Assets, Citation Notice). Note that there are two Citation Notice forms because one must accompany both filing of Third Party Citation to Discover Assets and filing the Citation to Discover Assets. Failure by the defendant to appear to answer a Citation to Discover Assets may result in the filing of a Verified Petition to Show Cause for Failure to Appear at Citation Hearing. Failure to appear to answer the rule to show cause may result in the issuance by the court of a “writ of attachment” (see Terms and Definitions). A Third Party Citation can be issued to ascertain information concerning income or property of the judgment debtor (defendant). If a Third Party Citation is issued, a Citation Notice must be sent to the defendant.
FILING AN APPEAL
The procedure for filing an appeal with the Appellate Court is defined in the Supreme Court Rules and the Illinois Compiled Statutes. These rules must be followed and carried out in a timely manner. Supreme Court Rules (http://www.state.il.us/court/) are available online and at most local libraries and in the law library at the Madison County Courthouse.
One important rule is the timing of the Notice of Appeal. A Notice of Appeal must be filed with the Circuit Clerk within 30 days after entry of final judgment or, if a post-trial motion directed against judgment is filed, within 30 days of the order disposing of the motion. There are no prepared forms for a Notice of Appeal.
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