SMALL CLAIMS

 

        This section provides a general introduction to small claims courts in Ohio.  It is designed to assist those who plan to use the small claims court or who are parties to a small claims proceeding.

 

            You should read this section in its entirety.  Many questions, which occur to you as you read, may be answered in the latter parts of this area.  If you have any questions after you read this section, you should ask the clerk of court where the claim will be filed, or has been filed.  However, the clerk cannot give you legal advice.  If your question begins with “what do you think”, “what would you do” or “how should I”, the clerk probably cannot provide you with an answer.

 

WHAT IS THE SMALL CLAIMS COURT?

 

            Every municipal and county court in Ohio has a small claims division, known as the “small claims court”. Its purpose is to resolve minor disputes quickly and inexpensively, but fairly.

 

            An individual does not need a lawyer in small claims, but anyone can have a lawyer if they wish.  A corporation may be required to have a lawyer under certain circumstances.  The procedure is much simpler than in a regular court and hearings are informal.  There is no jury, and cases are decided either by the municipal or county judge, or by a “magistrate”, a qualified attorney appointed by the judge.  Court costs are much lower than in regular court.

 

STOP! DO YOU REALLY WANT TO FILE A SMALL CLAIMS CASE?

 

            Many people don’t realize that filing your small claims case is only the first step in what can be a long and difficult process to actually recover monies you are owed.  Even winning your case does not necessarily mean that you will ever get paid what you are owed.  If you are not ready to be patient and persistent, you may be greatly disappointed by your experience with small claims court.

 

            Before you can win your case, you must prepare your case, i.e., gather documents, estimates, witnesses, pictures, etc.  You must come to court to file your case, and you must return to court on your hearing date.  This could mean taking time off from your place of employment.  Typically the court will not award compensation for the time spent preparing your claim, filing your claim, or presenting your claim in court.  You must be willing to absorb these costs.

 

            When you file your claim, you must pay the court costs.  If you are awarded a judgment, you will be awarded an amount “plus costs”.  This means that any court costs you have expended, such as filing fees, can be recovered from your judgment debtor.  However, if you are unable to collect from your judgment debtor, you will never recover the money you have expended as court costs.

 

            Once the court renders a judgment in your favor, it is up to you to collect the monies you have been awarded. The function of small claims court is to determine whether or not you are entitled to the money you have sued for, not to force the debtor to pay you these funds.  The court will assist in processing the paperwork necessary to “execute” on your judgment, such as a wage attachment, bank attachment or debtor’s examination. It is important to understand that if your execution is successful, it could still be weeks or months before your judgment is paid in full. But it is up to you to choose the method of execution, file the appropriate paperwork and pay the filing fees.  Before filing a small claims complaint it is helpful to have asset information about your debtor.  Having a judgment against an uncollectable debtor usually means that you have thrown good money after bad money.  If this is what you are doing, do you really want to file a small claims case?

 

            Sometimes the defendant will voluntarily pay you the money that is owed.  However, this is not always the case.  You must decide if it is worth it to you to file your small claims case, in terms of time, effort and advanced court costs.  Once again, after being awarded a judgment in your favor, you must pursue the collection of your judgment, if your judgment debtor does not make payment voluntarily. If you are prepared to be patient and persistent, using the small claims court can be worth your while.

 

WHAT TYPES OF CLAIMS CAN THE COURT HANDLE?

 

            A small claims court can handle most claims for monetary damages of $3,000.00 or less, and counterclaims and cross-claims of $3,000.00 or less. Be sure to ask when you file your claim, or defend a claim against you, what the current dollar limits are of the court’s jurisdiction.  Defending a claim may include the filing of a counterclaim, or a cross-claim.   Look at the “I’ve been sued! What do I do now?” section of this guide.

 

            Small claims cases are like other lawsuits, except the amounts involved are too small to make the expense of suing in regular courts worthwhile.  Many suits are by tenants seeking to recover security deposits.  Sometimes landlords sue for unpaid rent or damages to their property.  Frequently buyers sue for damages for defective merchandise.  Businessmen may sue for unpaid bills.  The innocent parties in minor auto accidents may sue for injuries or repair costs.  Employees, baby-sitters, maids, handymen and others may sue for unpaid wages.  In short, the small claims court can provide a remedy for almost any wrong or injury.  Recovery of personal property taxes is also permitted.

 

            There are some limitations.  First, the claim must be for money only because an award of monetary damages is the only remedy a small claims court is allowed to provide. The small claims court does not have the authority to order that someone return a piece of property to you, nor can the small claims court order someone to do something, for example, complete work on the deck you paid the defendant to build for you. If your claim is based on the defendant’s failure to complete work on your deck, and you really want this particular defendant to complete the work, you should not file in small claims court.  If the defendant won’t complete the work, and you hired someone else to finish the deck at a certain additional cost, all the small claims court can do is determine what dollar amount will compensate you for the additional money you spent to have the work on your deck completed.

 

Second, not including court costs and interest, a claim cannot exceed $3,000.00 and, if filed, a counterclaim or a cross-claim cannot exceed $3,000.00.  Where a counterclaim or cross-claim in excess of $3,000.00 is filed, the court may transfer the case to its general division court docket.  The court may transfer any small claims case to the general division docket upon the motion (written request to the court) of a party against whom a claim, counterclaim or cross-claim is made, or upon the motion of a third-party defendant (a party or entity not in the original case who was added to the case after the case started).

 

Third, regardless of the amount involved, a small claims court can’t handle certain special lawsuits such as those based on libel, slander and malicious prosecution, those seeking punitive damages and other selected special lawsuits.  Similarly, regardless of the amount involved, a small claims court can’t handle claims against certain entities such as agencies of the State of Ohio, or the United States and its agencies.

           

Remember, while you do not have to have a lawyer in a small claims case, you are responsible for your own case.  The court clerks cannot give you legal advice, nor should they tell you if you are filing a claim, which the small claims court can’t handle.  If you file the claim, and the small claims court later determines at hearing that you have filed seeking a remedy that the court can’t give, your case might be dismissed. If this happens, you will not get your filing fees back.

 

WHO CAN SUE OR BE SUED?

 

            While there are a number of important exceptions, the general answer to this question is that anyone can sue or be sued.  In general, if a person or organization is able to do or receive a wrong or injury, he, she or it is able to sue or be sued.  Any individual, company, business or organization can file a claim or have a claim filed against them.  A minor under 18 can use the court through his parent or guardian.  The person who brings the action is the “plaintiff” and the person against whom it is brought is the “defendant”.

 

            As noted above, claims against agencies of the State of Ohio (departments, bureaus, etc.) cannot be handled by small claims court. The Court of Claims of Ohio may handle such claims, which is located in Columbus, Ohio.  The Court of Claims of Ohio has an administrative determination procedure for claims up to $2,500.00 against agencies of the State of Ohio. While this procedure is somewhat similar to the procedure in a small claims court, it is outside the scope of this guide.  Information about the Court of Claims is available from the Clerk of the Court of Claims.  The telephone number of the Court of Claims of Ohio is (614) 466-7190.

 

WHERE DO I FILE MY CLAIM?

 

            A small claims case must be filed in the small claims division of the municipal court or county court, which has jurisdiction.

 

            A court has jurisdiction if the transaction or incident on which the claim is based took place in that court’s territory.  Regardless of where the transaction or incident took place, a court also has jurisdiction if the defendant (or any one defendant, if there is more than one) lives or has his principal place of business in the court’s territory.

 

            It is necessary to give the defendant notice that he is being sued.  The clerk serving notice upon the defendant does this.  In general, you must give the clerk the defendant’s complete address.  In some instances, for example where you don’t know where defendant lives or works and wish to serve notice by publication, you may have to file your case in the general division of the municipal court or county court.

 

            Municipal court and county court territories vary from county to county, so be sure to check the territorial boundaries of the local courts to determine the proper one in which to file your claim.

 

HOW DO I FILE MY CLAIM?

 

            Before filing the claim, it is a good idea (but not required) to make one last effort to resolve the dispute.  Send the potential defendant notice of your claim by certified mail, return receipt requested, indicating how you would like the dispute to be resolved.  The defendant might pay the claim, or offer a reasonable compromise, saving you both the trouble of a lawsuit.

 

            Let’s use an example.  Suppose a friend borrowed your television set which you had purchased a month ago for $279.00 from a local store.  Your friend lives in Bedford Heights, you live in Bedford.  You have spoken to this friend several times about getting the set back, but your friend either “forgets” or is “too busy”.  Now your friend won’t call you back.  Although your friend signed for the letter you sent by certified mail, asking him to either pay the $279.00 or return the television set to you, you’ve gotten no response to your demand. 

 

            If the defendant declines to pay or settle the claim, you must determine if your claim meets the jurisdictional requirements of the small claims division of your local court.  Is your claim for money only?  Is your claim for $3,000.00 or less?  Did the incident occur within the court’s territorial jurisdiction, or do either you or the defendant reside or have your principal place of business within the court’s territorial jurisdiction?  Are you willing to spend the time and money to litigate your claim, knowing that you might not be able to collect the amounts to which you feel you are entitled?  If you answer yes to these questions, you are ready to prepare your claim for filing.

 

            Before you file your claim is the time to gather and review the evidence of your claim.  If your claim is based upon our television set example, do you have your receipt or proof of the value of the television set?  Suppose your friend disputes that you even owned a television set.  How will you prove this to the court?  Just because you say it is true does not necessarily mean the court will find in your favor.  Do you have a picture of the television set in your home?  Can someone, other than you, testify that you owned this set?  How will you prove that your friend borrowed your television set?  These are just some of the questions that the court might ask.  Having your proof lined up before you file the claim is a good idea. Some examples of evidence are receipts, contracts, leases, warranties, promissory notes, diagrams, photos, and correspondence.

 

            Before you go to court to file your claim, you should call to find out how much it will cost for filing fees, the hours the court is open, and directions if you are unfamiliar with the court’s location.  You should be ready to pay the filing fees before the clerk’s office will accept your claim. If you plan to subpoena any witnesses, you should be prepared to file your request for subpoena when you file your claim, or alternatively, ask the clerk the cost, and how far in advance of your hearing date you should request the subpoenas. You will need the full name and proper address of any witness you intend to subpoena. 

 

When you go to file your claim, you will also need the full name (and business name, if applicable), address and telephone number of the defendant.  The court will ask if the defendant is on active military duty.

 

A lawsuit on a small claim is begun by filing a statement of the claim, which contains a brief description of the nature and amount of the claim, plus certain other information.   Using the television set example, instead of saying in your statement of claim that “The defendant owes me $279.00”, you would say “The defendant refuses to return my 19” remote controlled Sony television set which is valued at $279.00.  I am suing for $279.00, plus costs”.  It’s not necessary to give all the details in your statement of claim, but give enough to let both the defendant and the court know why you are filing the claim.

           

Most courts will provide a form, which you must complete before filing your claim.  Be sure to fill in the form completely, writing legibly, and using clear language.  Under the heading “complaint”, state the nature, circumstances, and amount of your claim as briefly as possible.  Bedford Municipal Court requires that a deputy clerk at the Court notarize a small claims complaint.  You can find a small claims complaint form in the FORMS/DOCUMENTS section of this web site.  Complete the form BUT DO NOT SIGN IT, and bring it with you to Court along with the filing fee.

 

If you want interest on your claim, and reimbursement for court costs, be sure to ask for both interest and reimbursement of court costs in addition to damages.  You should not add court costs or accrued interest into the amount of your damages. For example, if you are owed $279.00, ask for $279.00, plus court costs.  If the amount you are suing for does not have a specified amount of interest, for example, if you are seeking payment for plumbing services you performed for the defendant, Ohio law provides that you can request simple interest at the rate of 10% per year from the date the money was owed. Again, using our example, you would ask for $279.00, plus court costs, plus interest at 10% per year from the date the money was due.  Interest will be assessed on your judgment amount only, not on court costs or accrued interest.

 

WHAT DOES IT COST?

 

            The filing fee is fixed by each municipal court and county court.  Thus, small claims filing fees vary from court to court.   Most courts charge an additional amount if you are suing more than one defendant.  Make sure you call the court before you go to find out what the filing fee will be in your particular case, or you can refer to the “Court Costs” section of this website.  You should also find out about the cost for requesting a subpoena if you intend to subpoena any witnesses.  For more information about civil court costs, go to that section of this web site.

           

Sometimes the original filing fee will not cover all the costs in the lawsuit.  For example, costs may be higher for different types of service of process.

 

WHAT HAPPENS AFTER I FILE MY CLAIM?

 

Once the clerk accepts your claim for filing, your small claims case will be assigned a case number and court date.  The court will prepare the case file, which includes the complaint and any other documentation you may have filed.  Then the complaint will be “served upon” (sent to) the defendant. No hearing can be held unless the defendant has been properly served with notice of your complaint and the hearing date.

 

Typically the court will serve your complaint, along with the scheduled court date, upon the defendant by means of certified mail, return receipt requested.  In order for your small claims hearing date to go forward, the court must have received the return receipt from the post office indicating that either the defendant or some other responsible person signed for the complaint.  Sometimes, unfortunately, the court never receives the return receipt back from the post office. If the court does not receive the return receipt back, the court cannot establish whether or not the defendant has been served or not.  If this happens, the hearing may or may not go forward as scheduled.  Be aware that if there is no return of service, the court will determine at the time of hearing if the hearing will proceed. 

 

If certified mail has been returned with a notation of either a bad address, or addressee unknown, or if the return receipt has not be returned by the post office, you must request the court to re-issue certified mail service.  You might be required to provide the court with another address at which to serve the defendant.   The process will then begin again, and a new date will be scheduled for hearing. 

 

If the certified mail comes back unclaimed, service can be issued by means of  regular mail.  You were probably asked when you filed your complaint to sign a form indicating that if certified mail came back as “unclaimed” by the defendant, you wanted the court to serve the complaint by regular mail.  If this form is in the file, and the certified mail comes back unclaimed, the court will automatically re-issue service.  Every attempt will be made to re-issue service in sufficient time to keep the hearing date as originally scheduled.  

 

            If you cannot perfect service through the mail, you may want to discuss alternative methods of service with the clerk of court where the claim is filed.  Be sure to inquire as to the filing cost of each such alternative method of service.

 

I’VE BEEN SUED! WHAT DO I DO NOW?

 

            If you receive notice that someone has filed a claim against you in small claims court, you have several options depending upon the circumstances.  For example, if the plaintiff’s claim is fair, you may pay him the full amount plus court costs and that will be the end of the matter.  If part of his claim is fair, you may admit that part of the claim and deny the rest.  If the claim is completely unfair, you may deny that you owe anything.  If, rather than you owing plaintiff money, you believe plaintiff owes you money, you can answer the claim with a claim of your own called a “counterclaim”. 

 

            If you believe an additional party, or parties, should be brought into the suit then you must file a claim bringing that individual in as a new party defendant. You can request that the court bring in such other person or entity by filing a cross-claim against that person or entity.  A cross-claim is generally a claim by one defendant against.  If you believe that there are other persons who have not been named as parties who are necessary for a complete determination of the controversy, you can have them brought in as parties. You should file your claim with the clerk of courts office, paying any filing fees that might be required. Be sure to state the complete name and address of each additional person or entity that should be brought into the suit and your reasons why such person or entity should be brought into the suit.  For example, there may be other persons who are liable for all or part of the claim – either along with you or instead of you – and it would be proper to have them brought in as defendants.

 

            You may prefer not to have the claim handled in small claims court, and you might have it moved to the regular general division docket of the court.  If the claim is moved to the general docket, the court costs will be higher and you will probably need an attorney.  Further, if a jury is demanded, the costs will skyrocket.  The loser is typically responsible for paying court costs. Generally, each party must pay his own attorney, win or lose.  Where a defendant moves a claim to the general division docket by filing a sham or frivolous pleading, the court may order the defendant to pay the plaintiff’s attorneys fees.  Similarly, if you file a cross-claim, consider asking for interest and all court costs, including those incurred in enforcing a judgment upon the cross-claim.

 

            Ohio law and local court rules require that any counterclaims and cross-claims be filed with the court and served upon all other parties at least seven days prior to the date of trial on plaintiff’s original claim.  If your counterclaim or cross-claim deals with an original party to the complaint, you are responsible to serve the parties.  However, if the action you are taking brings a new party into the action, the clerk will be responsible for service.

 

WHAT IF THE CLAIM IS SETTLED BEFORE TRIAL?

 

            If you have filed a small claims case, and you decide for any reason not to go through with the trial, you should notify the court, in writing, that you are dismissing the case. It is the plaintiff’s responsibility to notify the court whenever a claim is called off.  If the defendant has filed a counterclaim, in order for the whole case to be dismissed, the defendant must notify the court that the counterclaim is also being dismissed. If plaintiff notifies the court that the complaint is being dismissed, but the defendant does not notify the court that the counterclaim is also being dismissed, the hearing will go forward; but only on the defendant’s claim.   Make sure you include your case number in your notice.  For a sample “Notice of Dismissal”, go to the FORMS/DOCUMENTS section of this web site.

 

            Generally, plaintiffs are responsible for court costs where claims are dismissed.  If you are considering dismissing a claim because the defendant has offered to pay in full, you should consider including the court filing fees in the amount you demand.  Of course the plaintiff is always free to accept a payment, which does not include court costs in order to compromise or settle the claim.

 

HOW DO I PREPARE MY CASE?

 

            Whether you are the plaintiff or the defendant, it is your job at trial to give the judge or magistrate all the facts, and convince him or her that he/she should rule in your favor.  You should assemble your evidence and line up your witnesses.  You may want to make yourself an outline of your case before trial.  This outline is not evidence, and will not be accepted as an exhibit, but it may be helpful to you in organizing your case.

 

            As you assemble your evidence, or review anticipated testimony, remember that the judge or magistrate is totally unfamiliar with these circumstances.  Ask yourself, what piece or pieces of evidence would convince me to rule the way I want if I were the judge?  Evidence can include anything in writing, or any tangible thing such as a picture, or the faulty merchandise on which your claim, defense or counterclaim is based.  It may include photos or diagrams of the damage or the scene of the incident.  Using our television set example, it may be your receipt showing proof of payment, warranty information evidencing model, date of purchase, price, etc., and perhaps a photo of the television set in your home.

 

            Testimony, including yours, is also evidence.  Certain types of testimony may be especially helpful. For example, a professional repairman is a good witness when poor or incomplete workmanship is an issue.  Friends, neighbors, or bystanders who are familiar with the incident or transaction or some aspect of it may be witnesses.  Whoever your witnesses are, contact them before trial, get them to agree to appear, and make sure they know when and where to show up.  If a witness will not appear voluntarily, you can ask the court to issue a subpoena to force his appearance at your hearing, but this must be done well before that scheduled date for hearing.

 

            The time to present your evidence and testimony is the day of the hearing.  You must have all your witnesses present, and all your documentation and tangible evidence with you on the day of your hearing.  Don’t tell the court that your witness is not present
”but you can call him”. If you don’t have your evidence with you, the court will generally not let you “bring it later”.   Anything that can support your case may be useful as evidence, but whatever it is, get it together and have it ready the day of hearing.

 

            A good way to present your version of the incident or transaction is in the order it actually happened.  Present your evidence, including any testimony, just like you would tell a story.  Remember that it is your job to give all the facts to the judge or magistrate who knows nothing about your case until you tell the story.  Start at the beginning, tell your story, and end your case by telling the court what you are asking for. In this way, the separate bits of evidence and testimony will fit together to make a complete, easily understandable picture.

 

WHAT DO I DO AT THE TRIAL?

 

            The trial is your day in court – your opportunity to present your claim, defense, counterclaim and/or cross-claim.

 

            Again, bring your witnesses and your evidence with you.  Step forward when your case is called.  Listen carefully to any instructions from the judge or magistrate.  The plaintiff will be asked to present evidence and testimony first, and then the defendant will be given an opportunity to explain his side.  Be brief and stick to the facts.  Emphasize the points in your favor, and explain any points against you.  Be prepared that the judge or magistrate may interrupt you with questions. Answer these questions directly and to the best of your knowledge.

 

            Be polite – not just to the court, but also to the witnesses, and to your opponent.  Whatever happens, don’t lose your temper.  Being loud or angry rarely sways the judge to your side.  Good manners and cool heads promote the fair and efficient conduct of the trial, and make a good impression.

 

            Try not to be too nervous.  Almost everyone is a bit nervous in court.  Remember that trial in small claims court is informal.  Don’t stoop to cheap dramatics or try techniques that you saw on television – such antics are out of place and may make you look foolish.  Just relax, be yourself, and present your case in the way that comes most easily to you.  The judge knows that you aren’t a lawyer, and will make some allowances.

 

            The judge or magistrate will make a decision after hearing both sides. Whether you win or lose, you can be assured of a fair hearing.

 

WHAT HAPPENS IF I WIN – OR LOSE?

 

            Small claims courts have various ways of letting you know how your claim was decided.  Sometimes you will be told of the decision before you leave court. Sometimes you will receive a decision from the court through the mail.

 

            If you disagree with the decision, or “judgment”, you should consider whether you wish to appeal the judgment or take other action.  If a magistrate heard your case, you may have an opportunity to object to the magistrate’s decision.  If you decide to file an objection, or an appeal, you should be aware that there are very strict rules governing the timing of any such filings. You should contact the court to determine the cost of filing an action to appeal the decision.  Once you have this information, you can evaluate the situation.

 

            If the defendant has not made a counterclaim, a judgment in favor of the defendant ends the case, subject to objections or appeal.  If plaintiff is awarded a judgment for all or part of his claim, or if the defendant is awarded a judgment on all or part of a counterclaim, the loser becomes a “judgment debtor” and additional action can be taken against him if the debt is not paid or discharged promptly.

 

HOW DO I GET MY MONEY?

 

            It is important for you to know that winning judgment in your favor does not necessarily mean that you will collect the money you are owed.  A judgment in your favor simply means that the court agreed that the other party owed you money.  It does not mean that the court can or will make that other party pay you the money.  Once you have your judgment it is up to you to collect, or “enforce” your judgment. The court will process the paperwork necessary to enforce your judgment, but it is up to you to determine which method you will use.  Once you complete the paperwork, you must pay the appropriate filing fee, which will ultimately be assessed against the Defendant as court costs.  However, if you never collect from your debtor, you will never recover your court costs.

 

            The best way to collect your judgment is to arrange for voluntary payments by the judgment debtor. If the debtor was not present in court on the day of hearing, or if voluntary payment arrangements could not be made on the day of court, you should send a copy of your judgment to the debtor requesting payment.  If after 30 days you have not received your money, you must decide if you want to “execute” on your judgment, i.e., enforce payment through the court.  Each method of execution requires that you complete certain paperwork appropriate to the method of execution you have selected. The paperwork can be obtained from the court.  Once the paperwork is filed, and the filing fees paid, the court will process the paperwork.

 

            There are several types of execution, such as garnishment, levy or lien.  A garnishment can either be filed against a debtor’s wages, if you know his/her place of employment, or against a bank account, if you have banking information.  Under the law, once a wage garnishment is filed with the debtor’s place of employment, it will continue until the balance is paid, unless the debtor is being garnished by more than one creditor.  If more than one creditor is involved, the first creditor to file will have 182 days of continuous garnishment, at which time the next creditor to file will have the next 182 days, and so on.  By law, a garnishment can attach 25% of the debtor’s disposable income. There are some types of garnishments that are called “super garnishments”, for example child support and IRS attachments, that take precedence over civil judgment garnishments.  If your debtor has one of these, you may get nothing on an attachment, or you may get only a nominal amount. However, most wage garnishments take some time to pay the judgment balance in full, so you will need patience and persistence.

 

            A garnishment of the debtor’s bank account, in most instances, will attach all funds in the account at the time the court serves the completed form on the debtor’s bank.  But you must indicate the bank or banks, which you want the court to serve with your paperwork.  The more banks you want to serve, the more the garnishment will cost.  A bank attachment is not continuous, once the bank sends monies in the account to court in response to a bank attachment, the attachment ends.  If you wish to file against that same bank account a second time, you need to re-file the bank attachment, once again paying the required filing fees.

 

            A levy on personal property means the court’s bailiff will go out and “tag” certain property belonging to the judgment debtor for future sale by the court.  Depending on the circumstances, a levy can be complicated and while you can apply for a levy on the judgment debtor’s property, you might want the assistance of an attorney.  Again, typically the debtor will not be responsible for your attorneys fees incurred in collection efforts.

 

A judgment lien attaches to the debtor’s property located in the county in which you file the lien.  The initial form, “certificate of judgment for lien” is obtained from the court, which rendered the judgment; you must then file that form with the appropriate Common Pleas Court.  A judgment lien will not recover any monies by itself, but once your lien is properly filed, the judgment debtor will not be able to sell the property or refinance the property without you being paid first.  In order to use your lien as a direct method of getting your money, you will have to foreclose the lien, just like foreclosing on a mortgage. This is a complicated, and costly process for which you will need an attorney, and again, in most cases you will not be able to recover fees you pay an attorney to foreclose on your lien.  Foreclosing on a lien should probably be used as a last resort.  

 

HOW CAN I FIND PROPERTY TO GARNISH OR ATTACH?

 

            Hopefully you will have some information about where your judgment debtor works, or where there is a bank account or other property to attach before you file your small claims complaint.  If you don’t have this information, after you obtain judgment, you can ask the court to file either a judgment debtor’s exam, which requires a court appearance by both parties, or a notice to judgment debtor, which the judgment debtor is instructed to complete and return through the mail.

 

The judgment debtor’s exam is served by the court.  It instructs the debtor to appear at court on a certain date and time so that you may ask questions of the debtor about his or her assets, liabilities and personal earnings under oath.  

 

The notice of judgment debtor is a standardized form prepared by the court sent to the debtor with instructions to complete and return the form within one week. 

 

I’M IN DEEP FINANCIAL TROUBLE. WHAT CAN I DO?

 

            If you are overwhelmed by debts or lawsuits, there are several possible solutions. The most common are a trusteeship, a debt scheduling agreement, a wage earner plan, or bankruptcy.

 

            A trusteeship is an arrangement made through the municipal court or county court where you live (or where you work, if you don’t live in Ohio), in which part of your earnings is regularly divided and applied to your debts until they are paid off.  To be eligible, you must have received a “15 day demand” (also called “Notice of Court Proceedings to Collect Debt”), which is the first step in a garnishment of your wages.  If you enter trusteeship, the garnishment will be stopped and your creditors will generally be held off as long as you faithfully follow the trusteeship plan.  (In some instances, trusteeship does not prevent creditors from taking certain actions.)

 

            A debt scheduling agreement developed through a consumer credit counseling service is, in general, similar to a trusteeship.  One important difference is that a person who is having financial trouble can establish a debt scheduling agreement before he/she becomes a judgment debtor.  Eligibility is not dependent upon receipt of the “15-day demand” mentioned above.  However, a person who receives a “15-day demand” may establish a debt scheduling agreement.  In summary, the person who wishes to establish a debt scheduling agreement enters into an agreement with a consumer credit counseling service to pay the non-essential portion of his income to the service and the service distributes such income to the person’s creditors.  In general, creditors are held off as long as the person faithfully follows the agreements.  (As with trusteeships, debt scheduling agreements do not prevent creditors from taking certain actions.)

 

            Bankruptcies are administered by the federal courts.  In bankruptcy, your property will be divided among your creditors and most of your debts completely discharged, even though your property isn’t enough to pay them off.

 

WHERE CAN I GET MORE INFORMATION?

 

            If you need more information or assistance on filing or defending a small claim or on collecting a judgment on a small claim, contact the clerk of the court where the claim will be filed, or has been filed.  The clerk may be able to provide you with information that will help.  However, it is important to remember that the clerk cannot give you legal advice. For legal advice, you must contact an attorney.  You can always contact the local bar association for the name of an attorney, or you can contact your local legal aid society.

 

            If you need information or assistance on filing for trusteeship, or entering a debt scheduling agreement, contact the clerk of the municipal court or county court.  If you need assistance on filing for a wage earner plan or for bankruptcy, contact a lawyer, or contact the legal aid society in your area.