The following information does not and is not intended to constitute legal advice of any kind. Although we have made every effort to be accurate, the authors and the Will County Bar Association, do not warrant the legal accuracy of the information contained in this information. We strongly recommend that you to consult with an attorney of your choice.
What is Small Claims Court and How Much Can Be Involved?
The Small Claims Court is a court specifically set up to hear those cases involving claims of $5,000.00 or less.
Who can use the Small Claims Court?
Anyone can file a lawsuit in the Small Claims Court, if the amount claimed is not more than $5,000.00. If you decide to act as your own attorney, you must do all the preparation normally done by the attorney, including representing yourself in Court, securing witnesses, collecting documents, photographs and the like. Neither the Judge nor the Clerk can do this for you. No Corporation may appear as claimant, assignee, subrogee or counter-claimant in a small claims proceeding, unless it is represented by an attorney. When the amount claimed does not exceed $1,500.00, a corporation may defend as defendant in any small claim proceeding in any court of this State through any officer, director, manager, department manager or supervisor of the corporation as through such corporation was appearing in its proper person. For the purpose of this rule, the term "officer" means the president, vice president, registered agent or other person vested with the responsibility of managing affairs of the corporation. (Supreme Court Rule 282(b), effective August 1, 1987).
In deciding whether to hire an attorney to represent you, consider whether the other side will have an attorney and whether you believe that can fairly present your case under those circumstances.
What can I sue about?
If someone owes you money or has damaged you in some way for no more than $5,000.00, you can file a lawsuit in the Small Claims Court.
It is always best to first try to settle your dispute without going to court. Send a letter to the person or company that owes you the money and payment saying why the money is owed. Keep a copy of the letter for yourself. If your dispute is with a business, you can also complain to the local Chamber of Commerce or Better Business Bureau. If you believe that you have been misled or defrauded by a business, contact the local office of the Illinois Attorney General's Consumer Fraud Division. These organizations exist to control dishonest and unscrupulous business practices.
How do I file a Small Claims Complaint?
The person who files a Small Claims suit is called the PLAINTIFF, while the one who is sued is called the DEFENDANT. In order to start a Small Claims case, you must file a COMPLAINT with the Clerk of the Circuit Court. A complaint is a paper that explains who you are suing, where the person lives, how much money they owe you and why they owe you the money. The COMPLAINT is signed by the Plaintiff and the statement can be sworn to before a Notary Public or Clerk of the Court. You must list the Defendant's exact name and address. The Clerk will not help you find that out. If the defendant is a corporation, you must serve an officer of the corporation or the registered agent. You can find this information out by examining a book called the Corporation Index or by calling the Corporate Search Department of the Illinois Secretary of State at (312) 793-3380. This information is also now available at the Secretary of State's web site at Secretary of State.
Remember that many times people are employees of someone else, another person or a corporation, and it may be that the employer is the one responsible for your claim. So, always be sure to sue the correct party.
Where do I file the complaint and how much does it cost?
You must file the Complaint with the Clerk of the Circuit court ion the second floor at the Will County Courthouse in Joliet, Illinois. The filing fee will be $49.00 to $114.00 depending on how much money you are suing for. If you cannot afford the filing fee, you have the right to ask the Judge to allow you to file you Complaint without paying the filing fee. In order to do this, you must fill out an Application to Sue as an indigent person.
If the defendant resides or is located within Will County, Certified Mail may be used for service. There is a fee for this service. If the defendant lives outside of Will County, you may be allowed to sue him in Will County, but the summons must be served through the Sheriff in the County where he lives.
If you win the suit, the Judge may award you the costs of bringing the suit as well as the money you are seeking.
Before filing the Complaint, you should try to determine whether the defendant has money, income or property so your judgment will be collectible. Filing a Complaint against a defendant who is "Judgment-proof" can be a waste of time and money. Also make sure that you sue the proper party. It is generally inexpensive to consult with an attorney before filing your complaint.
Our Illinois Constitution prohibits a Judge from putting a person in jail because he cannot pay a debt. Therefore, if a person does not have money, income or property, it is possible that there is no legal way for you to get the money owed to you.
Where should I file suit?
As a general rule, every case must be begun in the county where one of the defendant lives or in the county in which the transaction or some part of it took place.
What court date should I set?
When you file your suit, you should set a court date (called a Return Date) of not less than 14 nor more than 40 days after the issuance of the summons. The Clerk will tell you on which days the return date may be set. A court date 30 days from the filing of the suit is usually enough time for service on the Defendant. If the Sheriff was not able to serve all defendants or you tried service through certified mail and the defendant did not sign the return receipt, then you must prepare an Alias Summons, and it may necessary to have the Sheriff serve the alias summons. (The Plaintiff and or Plaintiff's attorney must always appear in court on the summons Return Date, regardless if service has been had or not. FAILURE TO APPEAR WILL RESULT IN THE CASE BEING DISMISSED FOR WANT OF PROSECUTION.)
What happens if the case is settled?
If you and the Defendant agree as to how much he/she is going to pay and how much you are going to accept, that is called a settlement. If you receive your settlement money before the court date, you should notify the Clerk personally or by mail, explaining that the case has been settled and asking that the case be dismissed. If the case has been settled, but you have not received your money, you should go to Court and ask the Judge to continue the case for an additional amount of time so that you can receive your money. After receiving your money, you must notify the Clerk that you are asking that the case be dismissed. You can do this either in person at the Clerk's office or by writing the Clerk.
What do I do for trial?
When you are given the trial date from the Judge, make sure that you write it down - date, time and place. Be there on time. Bring any papers, pictures or other physical objects which have something to do with your case and show them to the Judge during the trial. You may also bring witnesses to testify. A WITNESS is someone who has knowledge of facts that may help you win the case. If the witness is helpful for your case and is not willing to come to Court, you may need a SUBPOENA, i.e. an order of the Court commanding a person to appear and testify at the trial. It is on a form at the Clerk's office. You must fill it out and have the Clerk issue (sign) it. In order for a subpoena to be legal you must advance the witness fees of twenty dollars and mileage to and from the court house at the time of service on the witness (twenty cents for each mile).
If you do not show up for the trial, you will lose the case. If there is a very good reason why you cannot appear, have someone personally appear for you before the Judge and request a continuance to another date. However, this is no assurance that the Judge will continue the case; so make every effort to be at Court hearings and on time.
What happens at trial?
A small claims trial is a simple and somewhat informal Court hearing where the Judge listens to both parties as well as their witnesses and examines any things that they have brought and then decides the case. The PLAINTIFF and his witness go first, followed by the DEFENDANT and any witnesses he/she may have. If the DEFENDANT does not appear for trial the Judge will award Judgment for the PLAINTIFF. If the PLAINTIFF does not appear, his/her case will be dismissed. When testifying, speak slowly, thoughtfully and strongly. The Judge may ask questions. If so, answer them as clearly and directly as you can.
Getting your money.
If you are the Plaintiff and the Judge rules in your favor, he/she can order the person you have sued to pay the money that is owed. The Judge's ruling in the case is called a JUDGMENT. If the Court awards a judgment in your favor, you should ask the Defendant to pay you immediately. If the Defendant is not present, you should notify him or her that a judgment has been awarded and ask him/her to pay.
If the Defendant refuses to pay you the money you have won, you must begin collection proceedings against him/her, as neither the Court nor the Clerk will collect the money for you.
Collection proceedings may be by a WAGE DEDUCTION SUMMONS, if you know where the Defendant is employed, or by a NON-WAGE GARNISHMENT SUMMONS, if you know where the Defendant has his bank account. The parties to whom you direct the Wage Deduction Summons or Non-Wage Garnishment Summons must file a sworn answer. After this is filed with the Court Clerk, you must appear in Court and the court will then enter a judgment against the garnishee (party holding the money) for the amount shown in the sworn return and give you what is called a turn over order. You should be send a certified copy of this order to the garnishee for your monies. You can use this step as often as necessary for the collection of the total judgment awarded plus the additional costs, although generally a wage deduction will last until you have collected all of your money.
If you do not know where the Defendant works, has bank accounts or owns property, you should ask the Clerk issue a CITATION TO DISCOVER ASSETS. A Citation requires the Defendant to appear in court where he/she must answer questions under oath concerning his/her employment, locations of his bank accounts and other sources of income, as well as property he owns.
The Clerk of the Small Claims Court can assist you with the necessary forms for collection of a judgment. Any additional costs of collection can be added to the amount recoverable from the Defendant, but if the Defendant is actually without assets, you may just waste additional money. So think about this before you file your COMPLAINT.
Once a judgment has been collected, you should give to the Defendant a form called a RELEASE AND SATISFACTION OF JUDGMENT for filing with the Circuit Court Clerk.
A judgment can be appealed by either party to the 3rd District Appellate Court in Ottawa, Illinois. It must be filed within 30 days of the date of the final judgment.
When filing a complaint, if you wish to have a jury trial, you must make a demand for a jury trial and decide if he/she wants the matter to be tried by a jury of six or a jury of twelve. If you do not file the demand at the time that the suit is begun, the right to a jury trial is deemed waived and any trial you have will be before just a judge; he will decide you case. If the Defendant wants a jury trial, he or she at the time of filing his/her answer must file a written demand for jury trial; otherwise the Defendant is considered to have waived a jury. The party demanding a jury must pay $12.50 for a jury of six and $25.00 for a jury of twelve (705 ILCS 105/27.2 S) You should NOT make a jury demand without first consulting an attorney; it is a complex proceeding.
How do you respond to a small claims complaint?
If you have been sued in Small Claims Court, you and/or your attorney must appear in court on the return date set forth by the summons. (Note-your attorney must file a document with the Clerk called an appearance.) The court will hear the case on the return date or it may set the case for trial at a later date.
Legal Terms and Definitions
Plaintiff- the party who initiates the lawsuit.
Defendant- the party being sued.
Pro Se- a Latin term meaning "for himself/herself" or "in his/her own behalf" pronounced "pro say". When a party to a lawsuit files his case without a lawyer appearing on his behalf he or she is PRO SE.
Complaint- The Court document that is filed by the Plaintiff to start the lawsuit.
Summons- The Court document issued by the County Clerk, commanding the Defendant to file an appearance or appear in Court for trial.
Service- A summons issued by the Clerk of Small Claims is either served by Certified Mail (Will County) or by the County Sheriff and a return is made either by the return receipt from the U.S. Post Office or an endorsement on the summons by the Sheriff. Until a summons has been served, a Court does not have authority to hear the merits of a case.
Alias Summons- a second summons issued in a case, in which a return of service has been made and the Defendant was not found.
Citation to Discover Assets- a process issued by the Court Clerk, after judgment which requires the Defendant to reveal under oath the location, if any, of his/her bank accounts, property owned or name of employer.
Execution- an order to the Sheriff to sell property owned by the Defendant after judgment has been entered to satisfy the judgment.
Notice Of Motion- a written instrument sent by either the Plaintiff or Defendant, notifying the other party of a Court date in which you are requesting the Court to take some action. If sent by U.S. mail, the postmark must be 5 days from the Court date requested. If the NOTICE is served in person, it must be at least 2 days prior to the requested Court date. The original must be filed with the Circuit Clerk before the Court date. This notice does not have to be sent by Certified Mail.
Rules To Show Cause- this is an order by the Court, directing a party to appear before the Court on a certain day, to show the Court why he/she should not be held in contempt because of failure to comply with the Court's previous order.
Writ Of Attachment- is an order by the Court to the Sheriff, commanding him/her to take a person into custody for contempt of Court and directing him/her to hold the person until the day of Court or admitting him/her to bail for a future Court date.
Mittimus- a sentence of the Court against a party who has been found guilty of contempt of Court and ordering the Sheriff to hold the person in the County Jail.
Subpoena- a writ of the Court commanding a person to testify in a pending Court case. (Note-in order that a subpoena is valid, you must at the time of service deliver the statutory witness fees and mileage.)
If you need additional information, you can call the Circuit Court Clerk's office. If you need legal assistance you can contact the Will County Bar Association.