Idea Transcript
Filing a Small Claim Monday, October 16, 2017
Dwight E. Brock Collier Clerk of Courts
Special thanks to our hosts: Orange Blossom Public Library 2385 Orange Blossom Drive Naples, FL . 2
Florida Small Claims Rules
2017 Edition
For complete Small Claims Rules, visit the Small Claims page on the Clerk’s website: www.collierclerk.com Click on Court Divisions then Small Claims
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Small Claims Page
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Small Claims Court
Small Claims Court is a way to settle legal disputes in which the amount of damages or value of the property involved does not exceed $5,000. These cases are heard by a judge and usually there is not a jury. Small Claims Court handles all types of cases except alimony, mortgage or traffic fine disputes. 5
WHO MAY SUE?
Anyone 18 years of age or older
A parent or guardian for anyone under 18
Anyone having a claim that does not exceed $5,000 A corporate officer on behalf of the corporation - requires written authorization 6
FILING THE CLAIM
The STATEMENT OF CLAIM form must be typed or printed with a pen to ensure legibility of all copies.
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Statement of Claim
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FILING THE CLAIM
In the space for the plaintiff, type or write in the name and address of the person bringing the lawsuit. Specify whether you are an individual doing business under a fictitious name and sign where indicated. Indicate if you are suing as a corporation, have the form signed by an officer of the corporation or its attorney. 9
FILING THE CLAIM
Insert the name and address of the person(s) or business you are suing in the space marked “defendant”. You must have the defendant’s complete legal name and street address (do not use a post office box).
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FILING THE CLAIM
If the defendant is a corporation, provide the name of an officer or registered agent of the corporation so that the summons can be served. This information is available from: Florida Secretary of State, Corporation Filing Division, Tallahassee, FL 32304. www.sunbiz.org 11
FILING THE CLAIM
Briefly state your claim and the amount you are suing for in the spaces provided. DO NOT fill in the case number. The statement of claim form must be fully completed and signed.
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FILING THE CLAIM
If your claim is based on written documentation, attach it to the original Statement of Claim form. Furnish identical copies of the original documents for the court and each defendant you are suing. For example, if you are suing a husband and wife, supply one copy for the court, one copy for the husband and one copy for the wife.
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FEES AND RECEIPTS
The filing fees are:
Claims $100 or less Claims $101 to $500 Claims $501 to $2,500 Claims $2,501 to $5,000 Issue Summons
$ 55.00 $ 80.00 $ 175.00 $ 300.00 $ 10.00
Forms may be downloaded and printed free of charge from CollierClerk.com
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FEES AND RECEIPTS
Please note: Filing fees and certified mail fees must be paid separately from the sheriff’s fees. Do not include all fees in one check/money order. These fees are non-refundable but may be recovered later through the defendant. After filing your claim, a copy of the Summons/Notice to Appear at a pre-trial conference will be mailed to you. Your sheriff’s receipt will be mailed to you by the Sheriff’s Department. 15
SERVING THE SUMMONS
The plaintiff is responsible to locate the defendant and to furnish issued process to the proper Sheriff’s Department if outside Collier County. The summons can be served by the sheriff for $40 per defendant, or by certified mail (restricted delivery) for $11.54 per defendant. Certified mail can only be used when the defendant resides in Florida. 16
SERVING THE SUMMONS
If you want the sheriff to serve the summons, make your check payable to the sheriff’s department in the county where the defendant resides. If this is out of Collier County, call before issuing a check. Some counties do not accept personal checks. If the defendant does not reside in Collier County, call the sheriff’s department in the defendant’s county to obtain their address and fees. 17
FEES AND RECEIPTS
You may file in person or by mail. All necessary forms, filing fees and sheriff’s fees must be included. Filing fees can be paid by money order, cashier’s check, personal check or by cash if you file in person. All money orders or checks should be made payable to Clerk of Courts. 18
PRE-TRIAL CONFERENCE
The pre-trial conference will be scheduled not more than 50 days from the date you file your claim. Appearance at the pre-trial is mandatory. Whoever appears for a party must have full authority to settle, or costs and attorney fees incurred by the opposing party may be imposed. A corporation may be represented at any stage of the trial by an officer of the corporation or any employee authorized by an officer of the corporation. All cases are mediated at pre-trial. 19
Summons/ Notice to appear for Pre-trial Conference page 1 20
Summons/ Notice to appear for Pre-trial Conference page 2 21
PRE-TRIAL CONFERENCE
Your case will either be resolved with a Mediation Agreement or will be set for trial on the judge’s trial docket. If the defendant is not served the summons, the pre-trial conference will be cancelled. It will be rescheduled if you arrange for a new summons to be issued and served. 22
PRE-TRIAL CONFERENCE
If there are multiple defendants, they may be scheduled on different dates based on the issue date of their summons. A defendant must be present at the pretrial date printed on their served summons. The Plaintiff must be present at ALL pretrial conferences. 23
TRIAL BY JURY
Either the plaintiff or the defendant(s) may request a jury trial. Small Claims Rule 7.150 - Jury trials may be had upon written demand of the Plaintiff at the time of the commencement of the suit, or by the Defendant within five days after service of notice of suit or at the Pre-Trial Conference, if any. Otherwise Jury Trial shall be deemed waived. 24
OBTAINING JUDGMENT
The judge will listen to both sides of the story, review the evidence, and hear any witnesses’ testimony before making a decision. Whatever the outcome, you will be sent a copy of the judge’s ruling.
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POST JUDGMENT
To create a lien:
Obtain a certified copy of the Final Judgment. This may be purchased from the Clerk’s Recording Department (or the Courts Department). Cost: $1 per page and $2 for the certification. Submit the certified copy to the Clerk’s Recording Department to be recorded in the Official Record. Cost: $10 for the first page and $8.50 for each subsequent page.
Contact an attorney for additional options. Judgments may be registered with the Secretary of State: WWW.SUNBIZ.ORG
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Garnishments - F.S. 77
77.01 77.02 77.03 77.0305 77.031 77.04 77.041 77.055 77.06 77.061 77.07 77.08 77.081 77.082 77.083 77.13 77.14 77.15 77.16 77.17 77.19 77.22 77.24 77.27 77.28
Right to writ of garnishment Garnishment in tort actions Issuance of writ after judgment Continuing writ of garnishment against salary or wages Issuance of writ before judgment Writ; form Notice to individual defendant for claim of exemption from garnishment; procedure for hearing Service of garnishee's answer and notice of right to dissolve writ Writ; effect Reply Dissolution of writ Writ; jury trial Default; judgment No reply filed Judgment Execution on garnishee's refusal to surrender property Disposition of property surrendered by garnishee Proceedings against third persons named in answer Claims by third persons to garnisheed property Compensation to garnishee Amount retained by garnishee Before judgment; effect of judgment for defendant Before judgment; discharge No appeal until fees are paid Garnishment; attorney's fees, costs, expenses; deposit required 27
77.03 Issuance of writ after judgment.— After judgment has been obtained against defendant but before the writ of garnishment is issued, the plaintiff, the plaintiff's agent or attorney, shall file a motion (which shall not be verified or negative defendant's exemptions) stating the amount of the judgment. The motion may be filed and the writ issued either before or after the return of execution.
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77.06 Writ; effect.– (1) Service of the writ shall make garnishee liable for all debts due by him or her to defendant and for any tangible or intangible personal property of defendant in the garnishee's possession or control at the time of the service of the writ or at any time between the service and the time of the garnishee's answer. Service of the writ creates a lien in or upon any such debts or property at the time of service or at the time such debts or property come into the garnishee's possession or control. (2) The garnishee shall report in its answer and retain, subject to the provisions of s. 77.19 and subject to disposition as provided in this chapter, any deposit, account, or tangible or intangible personal property in the possession or control of such garnishee; and the answer shall state the name or names and addresses, if known to the garnishee, of the defendant and any other persons having or appearing to have an ownership interest in the involved property. (continued)
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77.06 Writ; effect.-- (continued) (3) In any case where a garnishee in good faith is in doubt as to whether any indebtedness or property is required by law to be included in the garnishee's answer or retained by it, the garnishee may include and retain the same, subject to the provisions of s. 77.19 and subject to disposition as provided in this chapter, and in such case the garnishee shall not be liable for so doing to the defendant or to any other person claiming the same or any interest therein or claiming to have sustained damage on account thereof. (4) Service of a writ on a garnishee shall render him or her liable as provided in this chapter in any fiduciary or representative capacity held by him or her if the fiduciary or representative capacity is specified in the writ.
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77.28 Garnishment; attorney fees, costs, expenses; deposit required.— Upon issuance of any writ of garnishment, the party applying for it shall pay $100 to the garnishee on the garnishee’s demand at any time after the service of the writ for the payment or part payment of his or her attorney fee which the garnishee expends or agrees to expend in obtaining representation in response to the writ. On rendering final judgment, the court shall determine the garnishee’s costs and expenses, including a reasonable attorney fee, and in the event of a judgment in favor of the plaintiff, the amount is subject to offset by the garnishee against the defendant whose property or debt owing is being garnished. In addition, the court shall tax the garnishee’s costs and expenses as costs. The plaintiff may recover in this manner the sum advanced by him or her, and, if the amount allowed by the court is greater than the amount paid together with any offset, judgment for the garnishee shall be entered against the party against whom the costs are taxed for the deficiency. 31
Complete Florida Statutes are available at the Florida Senate website: www.flsenate.gov
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Corporate Authorization
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Summons/ Notice to appear for Pre-trial Conference page 1 34
Summons/ Notice to appear for Pre-trial Conference page 2 35
Small Claims Pre-trial Conference Order Page 1 “If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact Charles Rice, Administrative Services Manager, whose office is located at 3315 East Tamiami Trail, Suite 501, Naples, Florida 34112, and whose telephone number is (239) 252-8800, at least 7 days before your scheduled court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days; if you are hearing or voice impaired, call 711.”
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Small Claims Pre-trial Conference Order Page 2
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Small Claims Mediation Agreement
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AFFIDAVIT of NON-COMPLIANCE
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Ex-Parte Motion and Order for Hearing in aid of execution
“If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact Charles Rice, Administrative Services Manager, whose office is located at 3315 East Tamiami Trail, Suite 501, Naples, Florida 34112, and whose telephone number is (239) 252-8800, at least 7 days before your scheduled court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days; if you are hearing or voice impaired, call 711.”
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Individual Fact Information Sheet page 1
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Individual Fact Information Sheet page 2
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Individual Fact Information Sheet page 3
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Individual Fact Information Sheet page 4
MAIL OR DELIVER THE COMPLETED FORM TO THE JUDGMENT CREDITOR OR THE JUDGMENT CREDITOR’S ATTORNEY. DO NOT FILE THIS FORM WITH THE COURT.
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Business Fact Information Sheet page 1
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Business Fact Information Sheet page 2
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Business Fact Information Sheet page 3
MAIL OR DELIVER THE COMPLETED FORM TO THE JUDGMENT CREDITOR OR THE JUDGMENT CREDITOR’S ATTORNEY. DO NOT FILE THIS FORM WITH THE COURT.
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For additional information, please visit our website:
CollierClerk.com 48
Thank You 49