Request to Set Aside Default Judgment: This is an official Colorado Small Claims Court form which complies with all applicable Colorado codes and statutes. USLF amends and updates all Colorado Small Claims Court forms as is required by Colorado statutes and laws.
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In order to vacate a judgment in California, You must file a motion with the court asking the judge to vacate or set aside the judgment. Among other things, you must tell the judge why you did not respond to the lawsuit (this can be done by written declaration).
If you do not owe the money, you can ask the court to cancel the county court judgment ( CCJ ) or high court judgment. This is known as getting the judgment 'set aside'. You can do this if you did not receive, or did not respond to, the original claim from the court saying you owed the money.
First, you can ask the court to set aside the default judgment and give you an opportunity to contest it. Next, you can settle the debt with the debt buyer for an amount less than what the default judgment is for. And finally you can eliminate the default judgment completely by filing for bankruptcy.
If a notice of motion for setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may set aside or vary the judgment or order under r 36.16(1) as if the judgment or order had not been entered: r 36.16(3A).
To ask a court to set aside (cancel) a court order or judgment, you have to file a request for order to set aside, sometimes called a motion to set aside or motion to vacate. The terms set aside or vacate a court order basically mean to cancel or undo that order to start over on a particular issue.
Definition - Small claims courts, also sometimes called "Peoples Court", is a court of limited jurisdiction. Limited jurisdiction means only certain matters may be filed and heard by the small claims court. There is also a maximum claim amount limitation. Small claims court offer a quick, informal and inexpensive way of resolving many types of disputes you may have with particular individuals or companies.
Maximum Amount of Claim Small Claims Court may hear in Colorado: $5,000.00
Which Court hears small claims in Colorado? The small claims court is a division of the county court and it is this division that will hear and decide all small claims within the jurisdictional limits set by law.
Who hears the claims in small claims court? The claim will be heard by a judge or a referee.
Claims over which the Small Claims Court has Jurisdiction:
The small claims court in Colorado may hear any of the following claims if the amount in controversy does not exceed $5,000.00:
1. money debts
2. personal injury claims
3. property damages
4. breach of contract
5. The above list is not exhaustive but does contain most of the
common claims. The following claims MAY NOT be filed in small claims court:
claims by a collection agency.
Who may file a claim in small claims court? An individual, partnership or corporation (or LLC) may file a claim against another individual(s), partnership or corporation (or LLC) in small claims court if jurisdiction exists to hear the claim and the amount of the claim or property involved does not exceed $5,000.00.
Must you be represented by an attorney? An attorney is not allowed to participate into the proceedings unless requested by the defendant.
Things to do before you File a Claim: Get the facts straight so you can complete the forms correctly and answer any questions court personnel may need to know. Be sure to obtain the correct legal name of the defendant, correct address and place/address of employment. If the defendant is a Corporation or Limited Liability Company you would use the legal corporate or LLC name as the defendant. If the defendant is a Corporation or LLC, you may need to contact the secretary of state in your state and obtain the proper name and address to serve with a copy of the suit. This person is called a registered agent and is designated by the corporation to receive process or summons when the corporation is sued. Be sure to also contact the small claims court to determine the filing fee for filing the claim.
How to File the Claim: If you are filing a small claims action, you are called the "plaintiff" If you have been sued, you are the "defendant". To start an action in the small claims court, you must file a claim explaining whom you are suing, how much money you are seeking and the reason you are claiming the money.
To start your small claims action, fill out the "Notice, Claim, and Summons to Appear," form that you get from the court clerk. The form must have complete names and addresses, the amount you are seeking, when it became due, and a brief statement of why the amount is owed. The bill must be owed directly to you and not to anyone else. Make sure you know the correct name of the party you sue and whether the party is an individual, sole proprietorship, or corporation.
The clerk will explain the various ways the claim may be given to the defendant. This is called service. Service may be accomplished by a sheriff, a process server, a friend that is familiar with the technical rules of service, or certified mail with a return receipt requested, notifying the defendant of the date and time to appear for trial. The certified mail option must be conducted by the clerk of court. The clerk will advise you of the dates available for the trial.
If you wish the trial to be held in the evening or on a Saturday, please tell the clerk, as it is sometimes possible to have your case heard at these times. Most courts, however, do not have evening or Saturday sessions because of low demand. In addition, many courts schedule small claims cases only once a week or once a month, depending upon demand and other considerations. The clerk of the court in which you are filing your claim will let you know about the available dates for that court.
Who serves the Defendant with summons or process and how is the defendant served: Services may be accomplished by the sheriff, a process server, a friend that is familiar with the technical rules of service, or certified mail with a return receipt requested. The certified mail option must be conducted by the court clerk.
Return of Summons: If the notice is delivered, the clerk will note on the register and the file the mailing date and address, and the date of delivery shown on the receipt, and the name of the person who signed the receipt.
Removal to another Court: A claim may be transferred to another court if the amount in controversy exceeds the statutory limit.
How are hearings scheduled? The clerk of the court will provide you with the procedure to set the case for trial or hearing at the time you file your claim.
Subpoena of Witnesses: If witnesses are required but unwilling to voluntarily attend unless they are subpoenaed, you may obtain a subpoena issued by the court clerk for service on the witness. The subpoena is an order for the witness to appear at the hearing and testify. Some employers may require that an employee be subpoenaed in order to be excused from work.
Trial Procedures: The trial procedure is generally informal than other courts although the formality will vary from county to county and judge to judge. The case will usually be called in open court and you will respond that you are present and ready to proceed. You will then be advised when to present your claim. Be prepared to present your claim in your own words. Be prepared to question witnesses if witnesses are needed.
What happens if the defendant does not appear at trial? Usually, if the defendant does not appear at trial, a default judgment will be entered in your favor for the amount of the claim or other relief.
Judgment: If the defendant fails to appear, or if the court rules for you after the hearing, a judgment will be entered by the court for the amount of the claim, or other relief sought.
Appeal: If both the plaintiff and defendant agree that they will be bound by the decision of the judge or referee, no record of the trial will be made, no appeal will be available, and the judge or referee's decision will be binding. If they do not make that agreement, then either party may appeal, using the record of the trial. No new trial will be held. If you decide to appeal, you must file your appeal within 15 days. The appeal will be decided in the district court of the same county. At the district court level, you can be represented by an attorney.
You may prefer to have an attorney if you decide to appeal because of the technicalities involved in preparing the appeal, perfecting it, and presenting it.
The party filing an appeal must be prepared to file a bond to secure payment of the judgment costs.
Collection of Judgment: The procedures
for collecting a judgment are complicated. The clerk will attempt to answer
your questions. However, the clerk cannot give you legal advice, and you
may want to talk to an attorney. The collection procedures should
not be attempted without legal advice unless you are absolutely
sure you know what you are doing. The following suggestions will not guarantee
that you will collect your judgment, but may help.
The judge or referee has decided the case in your favor and awarded you a judgment. What do you do to collect this judgment? If the other party has come to court, contact that party and demand payment. You can have the court require that the losing party disclose assets and property by having that party answer written questions or appear in court. You can use that information for garnishment or execution as explained below. If the losing party fails to comply with the court's order to answer or appear, the court may hold the party in contempt.
Other ways to collect your judgment:
a.GARNISHMENT OF WAGES OR BANK ACCOUNTS
1.Obtain a GARNISHMENT form from the clerk or a legal stationery
store.
2.Fill in the blanks, and take the original and the required number
of copies to the clerk and then to the sheriff of the county where the
losing party works or banks.
3.Ask the sheriff to serve the GARNISHMENT form upon the losing
party's employer or bank. Give the sheriff the address of the employer
or the bank.
4.If the garnishment is against a bank account, the losing party
must also be served with a copy of the garnishment. Various procedures
for the claiming of exemptions by the losing party and for the paying out
of the funds by the bank are triggered by the service of the garnishment
upon the losing party.
b.JUDGMENT LIEN AGAINST REAL ESTATE
1.Ask the clerk for a TRANSCRIPT OF JUDGMENT. (A fee will be charged
for this document.)
2.Take the TRANSCRIPT to the clerk and recorder of the county where
the losing party owns real estate.
3.Ask the clerk and recorder to record the TRANSCRIPT. (A fee will
be charged for recording)
4.Notify the losing party that you have filed a lien against the
party's real estate: Advise the losing party that the real estate cannot
be sold or mortgaged until the judgment is paid in full and a release of
the judgment lien has been obtained.
c.EXECUTION:
1.WARNING: Execution can be complicated. Generally, homes, appliances,
jewelry, and cars are exempt from being taken for judgment. A judgment
cannot be enforced against exempt property.
2.Ask the clerk for a WRIT OF EXECUTION. (A fee will be charged
for this document .)
3.You can seize both real estate and personal property through
EXECUTION. It requires a bond for double the value of the goods for personal
property and knowledge of any existing liens against the personal property
or real estate.
4.Take the WRIT OF EXECUTION to the sheriff of the county where
the real estate or personal property is located.
5.Ask the sheriff to record a CERTIFICATE OF LEVY on the defendant's
real estate.(A fee will be charged for this. You will have to obtain this
form from a legal stationery store.) You must give the sheriff the formal
legal description of the real estate.
6.Ask the sheriff to serve a NOTICE OF LEVY upon the defendant.
7.The next step is for the sheriff to sell the real estate or personal
property. It is highly recommended that you consult an attorney at this
point because of the problems of ownership, prior existing liens, redemption
rights, homestead exemptions, and sheriff's costs.
-----------------------
Other Matters:
Are Motions allowed? Motions are allowed by the parties on a limited basis.
Continuances: A continuance will only be granted with the showing of good cause.
Out-of-Court Settlement: If the parties settle before trial, they are responsible for informing the court clerk.
When Payment is Received: When the judgment has been satisfied, the receiving party must send written notice to the court that the judgment has been satisfied.
Cross-Claims, Counterclaims, and Third-Party Claims: The defendant may file a counter suit against the plaintiff.
What happens if a defendant has filed bankruptcy? If the plaintiff has filed a claim against the defendant and the plaintiff is aware that the claim is listed as a debt in a bankruptcy proceeding, federal law prohibits the plaintiff from pursuing the claim in small claims court.
Common Forms used in Small Claims Court:
Claim Statement/Complaint
Summons
Return of Summons
Answer
Subpoena
Abstract of Judgment
Colorado Small Claims Court Rules:
Rule 501.Scope and Purpose
(a)How Known and Cited. These rules for the small claims division for the county court are additions to C.R.C.P. and shall be known and cited as the Colorado Rules of Civil Procedure, or C.R.C.P. These rules are promulgated pursuant to section 13-6-413, C.R.S.
(b)Procedure Governed. These rules govern the procedure in all small claims courts. They shall be liberally construed to secure the just,speedy, informal, and inexpensive determination of every small claims action.
(c)Purpose. Each small claims court shall provide for the expeditious resolution of all cases before it. Where practicable, at least one weekend session and at least one evening session shall be scheduled or available to be scheduled for trial in each small claims court each month.
Rule 504.Process
(a) Service by Certified Mail. Within three days after the action is filed, the clerk shall send a signed and sealed notice, pursuant to Form JDF-250 appended to these rules, to the defendant(s), by certified mail, return receipt requested to be signed by addressee only, at the address supplied or designated by the plaintiff. If the notice is delivered, the clerk shall note on the register of actions and in the file the mailing date and address, the date of delivery shown on the receipt, and the name of the person who signed the receipt. If the notice was refused, the clerk shall note the date of refusal.
(b) When Service is Complete. Notice shall be sufficient even if refused by the defendant and returned. Service shall be complete upon the date of delivery or refusal.
(c) Notification by Clerk and Fees and Expenses for Service. If the notice is returned for any reason other than refusal to accept it, or if the receipt is signed by any person other than the addressee, the clerk shall so notify the plaintiff. The clerk may then issue additional notices, at the request of the plaintiff, or the plaintiff may arrange directly for personal service upon the defendant in accordance with the provisions of C.R.C.P. 304.
All fees and expenses for service of process, including the postal fees for the certified mailing by the clerk, shall be paid by the plaintiff and treated as costs of the action. Issuance of each notice shall be noted upon the register of actions or in the file.
(d)Personal Service. In lieu of the provisions of this rule for service by certified mail, the plaintiff may elect to serve the defendant by personal service pursuant to C.R.C.P. 304.
Small Claims Rules: This summary contains
some of the provisions from the Colorado Small Claims Rules but does not
include a comprehensive discussion of all rules. For all Rules which
apply to Small Claims actions in Colorado please see
http://64.78.178.125/cgi-dos/ruletocp.exe?C&ch=26.
For more information on how to use the Colorado Small Claims Court,
please see
http://www.ago.state.co.us/consprot/smclaim.htm.
If you have any questions about the use or operation of the small claims court, please direct them first to the clerk of the county court (small claims division) of the county in which you are filing your case. If you need additional information, ask the court clerk for the name and telephone number of the district administrator responsible for that court and direct your questions to that administrator. You may also call the Office of the State Court Administrator in Denver for assistance at(303)837-3624 or (303)837-3651.
Definition - Small claims courts, also sometimes called "Peoples Court", is a court of limited jurisdiction. Limited jurisdiction means only certain matters may be filed and heard by the small claims court. There is also a maximum claim amount limitation. Small claims court offer a quick, informal and inexpensive way of resolving many types of disputes you may have with particular individuals or companies.
Maximum Amount of Claim Small Claims Court may hear in Colorado: $5,000.00
Which Court hears small claims in Colorado? The small claims court is a division of the county court and it is this division that will hear and decide all small claims within the jurisdictional limits set by law.
Who hears the claims in small claims court? The claim will be heard by a judge or a referee.
Claims over which the Small Claims Court has Jurisdiction:
The small claims court in Colorado may hear any of the following claims if the amount in controversy does not exceed $5,000.00:
1. money debts
2. personal injury claims
3. property damages
4. breach of contract
5. The above list is not exhaustive but does contain most of the
common claims. The following claims MAY NOT be filed in small claims court:
claims by a collection agency.
Who may file a claim in small claims court? An individual, partnership or corporation (or LLC) may file a claim against another individual(s), partnership or corporation (or LLC) in small claims court if jurisdiction exists to hear the claim and the amount of the claim or property involved does not exceed $5,000.00.
Must you be represented by an attorney? An attorney is not allowed to participate into the proceedings unless requested by the defendant.
Things to do before you File a Claim: Get the facts straight so you can complete the forms correctly and answer any questions court personnel may need to know. Be sure to obtain the correct legal name of the defendant, correct address and place/address of employment. If the defendant is a Corporation or Limited Liability Company you would use the legal corporate or LLC name as the defendant. If the defendant is a Corporation or LLC, you may need to contact the secretary of state in your state and obtain the proper name and address to serve with a copy of the suit. This person is called a registered agent and is designated by the corporation to receive process or summons when the corporation is sued. Be sure to also contact the small claims court to determine the filing fee for filing the claim.
How to File the Claim: If you are filing a small claims action, you are called the "plaintiff" If you have been sued, you are the "defendant". To start an action in the small claims court, you must file a claim explaining whom you are suing, how much money you are seeking and the reason you are claiming the money.
To start your small claims action, fill out the "Notice, Claim, and Summons to Appear," form that you get from the court clerk. The form must have complete names and addresses, the amount you are seeking, when it became due, and a brief statement of why the amount is owed. The bill must be owed directly to you and not to anyone else. Make sure you know the correct name of the party you sue and whether the party is an individual, sole proprietorship, or corporation.
The clerk will explain the various ways the claim may be given to the defendant. This is called service. Service may be accomplished by a sheriff, a process server, a friend that is familiar with the technical rules of service, or certified mail with a return receipt requested, notifying the defendant of the date and time to appear for trial. The certified mail option must be conducted by the clerk of court. The clerk will advise you of the dates available for the trial.
If you wish the trial to be held in the evening or on a Saturday, please tell the clerk, as it is sometimes possible to have your case heard at these times. Most courts, however, do not have evening or Saturday sessions because of low demand. In addition, many courts schedule small claims cases only once a week or once a month, depending upon demand and other considerations. The clerk of the court in which you are filing your claim will let you know about the available dates for that court.
Who serves the Defendant with summons or process and how is the defendant served: Services may be accomplished by the sheriff, a process server, a friend that is familiar with the technical rules of service, or certified mail with a return receipt requested. The certified mail option must be conducted by the court clerk.
Return of Summons: If the notice is delivered, the clerk will note on the register and the file the mailing date and address, and the date of delivery shown on the receipt, and the name of the person who signed the receipt.
Removal to another Court: A claim may be transferred to another court if the amount in controversy exceeds the statutory limit.
How are hearings scheduled? The clerk of the court will provide you with the procedure to set the case for trial or hearing at the time you file your claim.
Subpoena of Witnesses: If witnesses are required but unwilling to voluntarily attend unless they are subpoenaed, you may obtain a subpoena issued by the court clerk for service on the witness. The subpoena is an order for the witness to appear at the hearing and testify. Some employers may require that an employee be subpoenaed in order to be excused from work.
Trial Procedures: The trial procedure is generally informal than other courts although the formality will vary from county to county and judge to judge. The case will usually be called in open court and you will respond that you are present and ready to proceed. You will then be advised when to present your claim. Be prepared to present your claim in your own words. Be prepared to question witnesses if witnesses are needed.
What happens if the defendant does not appear at trial? Usually, if the defendant does not appear at trial, a default judgment will be entered in your favor for the amount of the claim or other relief.
Judgment: If the defendant fails to appear, or if the court rules for you after the hearing, a judgment will be entered by the court for the amount of the claim, or other relief sought.
Appeal: If both the plaintiff and defendant agree that they will be bound by the decision of the judge or referee, no record of the trial will be made, no appeal will be available, and the judge or referee's decision will be binding. If they do not make that agreement, then either party may appeal, using the record of the trial. No new trial will be held. If you decide to appeal, you must file your appeal within 15 days. The appeal will be decided in the district court of the same county. At the district court level, you can be represented by an attorney.
You may prefer to have an attorney if you decide to appeal because of the technicalities involved in preparing the appeal, perfecting it, and presenting it.
The party filing an appeal must be prepared to file a bond to secure payment of the judgment costs.
Collection of Judgment: The procedures
for collecting a judgment are complicated. The clerk will attempt to answer
your questions. However, the clerk cannot give you legal advice, and you
may want to talk to an attorney. The collection procedures should
not be attempted without legal advice unless you are absolutely
sure you know what you are doing. The following suggestions will not guarantee
that you will collect your judgment, but may help.
The judge or referee has decided the case in your favor and awarded you a judgment. What do you do to collect this judgment? If the other party has come to court, contact that party and demand payment. You can have the court require that the losing party disclose assets and property by having that party answer written questions or appear in court. You can use that information for garnishment or execution as explained below. If the losing party fails to comply with the court's order to answer or appear, the court may hold the party in contempt.
Other ways to collect your judgment:
a.GARNISHMENT OF WAGES OR BANK ACCOUNTS
1.Obtain a GARNISHMENT form from the clerk or a legal stationery
store.
2.Fill in the blanks, and take the original and the required number
of copies to the clerk and then to the sheriff of the county where the
losing party works or banks.
3.Ask the sheriff to serve the GARNISHMENT form upon the losing
party's employer or bank. Give the sheriff the address of the employer
or the bank.
4.If the garnishment is against a bank account, the losing party
must also be served with a copy of the garnishment. Various procedures
for the claiming of exemptions by the losing party and for the paying out
of the funds by the bank are triggered by the service of the garnishment
upon the losing party.
b.JUDGMENT LIEN AGAINST REAL ESTATE
1.Ask the clerk for a TRANSCRIPT OF JUDGMENT. (A fee will be charged
for this document.)
2.Take the TRANSCRIPT to the clerk and recorder of the county where
the losing party owns real estate.
3.Ask the clerk and recorder to record the TRANSCRIPT. (A fee will
be charged for recording)
4.Notify the losing party that you have filed a lien against the
party's real estate: Advise the losing party that the real estate cannot
be sold or mortgaged until the judgment is paid in full and a release of
the judgment lien has been obtained.
c.EXECUTION:
1.WARNING: Execution can be complicated. Generally, homes, appliances,
jewelry, and cars are exempt from being taken for judgment. A judgment
cannot be enforced against exempt property.
2.Ask the clerk for a WRIT OF EXECUTION. (A fee will be charged
for this document .)
3.You can seize both real estate and personal property through
EXECUTION. It requires a bond for double the value of the goods for personal
property and knowledge of any existing liens against the personal property
or real estate.
4.Take the WRIT OF EXECUTION to the sheriff of the county where
the real estate or personal property is located.
5.Ask the sheriff to record a CERTIFICATE OF LEVY on the defendant's
real estate.(A fee will be charged for this. You will have to obtain this
form from a legal stationery store.) You must give the sheriff the formal
legal description of the real estate.
6.Ask the sheriff to serve a NOTICE OF LEVY upon the defendant.
7.The next step is for the sheriff to sell the real estate or personal
property. It is highly recommended that you consult an attorney at this
point because of the problems of ownership, prior existing liens, redemption
rights, homestead exemptions, and sheriff's costs.
-----------------------
Other Matters:
Are Motions allowed? Motions are allowed by the parties on a limited basis.
Continuances: A continuance will only be granted with the showing of good cause.
Out-of-Court Settlement: If the parties settle before trial, they are responsible for informing the court clerk.
When Payment is Received: When the judgment has been satisfied, the receiving party must send written notice to the court that the judgment has been satisfied.
Cross-Claims, Counterclaims, and Third-Party Claims: The defendant may file a counter suit against the plaintiff.
What happens if a defendant has filed bankruptcy? If the plaintiff has filed a claim against the defendant and the plaintiff is aware that the claim is listed as a debt in a bankruptcy proceeding, federal law prohibits the plaintiff from pursuing the claim in small claims court.
Common Forms used in Small Claims Court:
Claim Statement/Complaint
Summons
Return of Summons
Answer
Subpoena
Abstract of Judgment
Colorado Small Claims Court Rules:
Rule 501.Scope and Purpose
(a)How Known and Cited. These rules for the small claims division for the county court are additions to C.R.C.P. and shall be known and cited as the Colorado Rules of Civil Procedure, or C.R.C.P. These rules are promulgated pursuant to section 13-6-413, C.R.S.
(b)Procedure Governed. These rules govern the procedure in all small claims courts. They shall be liberally construed to secure the just,speedy, informal, and inexpensive determination of every small claims action.
(c)Purpose. Each small claims court shall provide for the expeditious resolution of all cases before it. Where practicable, at least one weekend session and at least one evening session shall be scheduled or available to be scheduled for trial in each small claims court each month.
Rule 504.Process
(a) Service by Certified Mail. Within three days after the action is filed, the clerk shall send a signed and sealed notice, pursuant to Form JDF-250 appended to these rules, to the defendant(s), by certified mail, return receipt requested to be signed by addressee only, at the address supplied or designated by the plaintiff. If the notice is delivered, the clerk shall note on the register of actions and in the file the mailing date and address, the date of delivery shown on the receipt, and the name of the person who signed the receipt. If the notice was refused, the clerk shall note the date of refusal.
(b) When Service is Complete. Notice shall be sufficient even if refused by the defendant and returned. Service shall be complete upon the date of delivery or refusal.
(c) Notification by Clerk and Fees and Expenses for Service. If the notice is returned for any reason other than refusal to accept it, or if the receipt is signed by any person other than the addressee, the clerk shall so notify the plaintiff. The clerk may then issue additional notices, at the request of the plaintiff, or the plaintiff may arrange directly for personal service upon the defendant in accordance with the provisions of C.R.C.P. 304.
All fees and expenses for service of process, including the postal fees for the certified mailing by the clerk, shall be paid by the plaintiff and treated as costs of the action. Issuance of each notice shall be noted upon the register of actions or in the file.
(d)Personal Service. In lieu of the provisions of this rule for service by certified mail, the plaintiff may elect to serve the defendant by personal service pursuant to C.R.C.P. 304.
Small Claims Rules: This summary contains
some of the provisions from the Colorado Small Claims Rules but does not
include a comprehensive discussion of all rules. For all Rules which
apply to Small Claims actions in Colorado please see
http://64.78.178.125/cgi-dos/ruletocp.exe?C&ch=26.
For more information on how to use the Colorado Small Claims Court,
please see
http://www.ago.state.co.us/consprot/smclaim.htm.
If you have any questions about the use or operation of the small claims court, please direct them first to the clerk of the county court (small claims division) of the county in which you are filing your case. If you need additional information, ask the court clerk for the name and telephone number of the district administrator responsible for that court and direct your questions to that administrator. You may also call the Office of the State Court Administrator in Denver for assistance at(303)837-3624 or (303)837-3651.