Motion and Order to Set Aside Dismissal - Default Judgment
Note: This summary is not intended to be an all-inclusive
discussion of the law and procedures of small claims in Colorado, 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 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.
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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.
