Motion and Affidavit to Set Aside Default - Civil
Note: This summary is not intended to be an all-inclusive
discussion of the law and procedures of small claims in Michigan, but it
does contain basic and other information. This summary only discusses civil
claims (property and money claims that may be filed in small claims court).
Criminal charges are not discussed.
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 Michigan: $3,000.00
Which Court hears small claims in Michigan? According
to the Michigan Statutes Annotated Chapter 84, Section 27A.8401, thesmall
claims court is a division of the district court. Claims for $3,000.00
or less will be heard in this particular court.
Who hears the claims in small claims court? The
claim will be heard by a magistrate or judge.
Claims over which the Small Claims Court has Jurisdiction:
The small claims court in Michigan may hear any of the following
claims if the amount in controversy does not exceed $3,000.00:
1. recovery of money
2. action to recover possession of personal property
3. The above list is not exhaustive but does contain most of the
common claims. However, the following claims MAY NOT be heard in small
claims court: libel, slander, professional malpractice, assigned claims,
and punitive damages.
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 $3,000.00.
Instruction Sheets: According
to Michigan Statutes Annotated Chapter 84, Section 27A.8401(1) the state
court administrator shall prepare instruction sheets clearly explaining
in plain English how the small claims division functions and how to commence
and defend an action in the small claims division. A copy of the instruction
sheet must be given to the claimant upon filing a claim. Copies of the
instruction sheets shall be made available at the office of each clerk
and deputy clerk of the district court and a copy of the defendant's instruction
sheet shall be sent by the clerk or deputy clerk to the defendant along
with the copy of the affidavit served upon the defendant under section
8404.
Must you be represented by an attorney? In
small claims cases, the parties are not allowed to have an attorney represent
them.
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: The plaintiff
must file an affidavit and claim form with the court clerk.
Who serves the Defendant with summons or process
and how is the defendant served: Upon the filing of the
affidavit, the court clerk will have a copy of the affidavit served upon
each defendant with a notice directing the defendant to appear and answer
before a judge of a small claims division. According to the Michigan Statutes
Annotated Chapter 84 Section 27A.8406, the date for the appearance of the
defendant provided in the notice shall not be less than 15 days nor more
than 45 days after the date of the notice. The person filing the claim
shall receive from the clerk a copy of the affidavit and notice of hearing.
The plaintiff shall appear on the date shown in the notice of hearing and
have all books, papers, and witnesses necessary to prove the claim. If
the notice is not served upon the defendant at least 7 days before the
appearance date, the plaintiff may apply to the clerk or the deputy clerk
for a new notice setting a new date for the appearance of the defendant
which shall not be less than 15 days nor more than 30 days after the date
of the issuance of the new notice.
If the defendant is not personally serviced or did not sign the
certified mail return receipt at least 7 days before the appearance date,
there shall not be jurisdiction to render judgment, unless the defendant
appears on the appearance date and does not request a continuance. If the
defendant was not served within the minimum time specified, the matter,
upon request of either party, shall be continued for not less than 7 days.
Return of Summons: Where service
by certified mail is made, it will be made by the clerk and the receipt
of mailing together with the return card signed by the defendant will constitute
proof of service.
Removal to another Court: According
to Michigan Statutes Chapter 84, Section 27A.8411, before the commencement
of a trial in the small claims division, the district court judge or magistrate
shall inform both parties, orally or in writing, of the right of removal
before trial to the general civil division and of all rights waived if
they choose to remain in the small claims division.
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: According to the Michigan
Statutes Annotated Chapter 84, Section 27A.8412, unless a party removes
a small claims action to the district court pursuant to section 8408(4),
all parties to an action in the claims division shall be considered to
have waived the right to counsel, the right to trial by jury, the right
to recover more than the applicable jurisdictional amount as prescribed
by Section 8401, and any right of appeal, except that if the action is
heard before a district court magistrate pursuant to section 8427, the
parties have the right to an appeal to the small claims division of the
district court as provided by section 8427. The affidavit prescribed in
section 8402 shall contain a statement that the plaintiff understands that
he or she has waived these rights.
Collection of Judgment: The prevailing
party may collect his or her money judgment through garnishment.
-----------------------
Other Matters:
Are Motions allowed? Motions are allowed
by the parties on a limited basis.
Continuances: A continuance will
only be allowed for good cause.
Out-of-Court Settlement: According
to the Michigan Statutes Annotated Chapter 84, Section 27A.8410 before
or at the hearing the parties may make a settlement upon those terms as
they may agree. The settlement shall be in writing and signed by both parties.
Upon filing of the settlement with the court, the judge shall review the
settlement and may enter it as the judgment of the court or may require
that a full hearing take place. The judgment shall include a warning that
the defendant's failure to the judgment pursuant to its terms or any installment
payment ordered may result in execution against the defendant's property
and that the defendant may be compelled to appear for an examination of
the defendant's assets. If the defendant is not present when the judgment
is rendered, or is present but does not immediately pay the full amount
of the judgment when the judgment is entered, the judge shall order that
the defendant, within thirty days after the date of entry of the judgment,
pay the judgment in full or disclose in writing to the plaintiff and the
court his or her place of employment and the location of his or her accounts
in state or federally chartered banks, savings, and loan associations,
and credit unions.
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:
A party may file a counterclaim against the plaintiff. According
to Michigan Statutes Annotated Chapter 84, Section 27A.8423, if a defendant
in a small claims action has a claim against the plaintiff, which claim
is for an amount over the jurisdiction of the small claims division but
of a nature which would be subject to counterclaim in accordance with rules
of the supreme court, he may commence the action against the plaintiff
in a court of competent jurisdiction and file with the clerk or deputy
clerk of the small claims division wherein the plaintiff has commenced
his action, at or before the time set for the trial in the small claims
action, an affidavit in a form prescribed by the supreme court setting
forth the fact of the commencement of such action by the defendant.
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
General Information for 10th District Court Small Claims Action:
http://courts.co.calhoun.mi.us/book017.htm#WHAT
IS A SMALL CLAIMS
