LEVY of PERSONAL PROPERTY
Note: This summary is not intended to be an all-inclusive discussion of the law and procedures of small claims in Delaware,
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 Delaware: $15,000.00
Which Court hears small claims in Delaware? Justice
of the Peace Courts are authorized to hear claims which do not exceed $15,000.00
Who hears the claims in small claims court? The
claim will be heard by a magistrate.
Claims over which the Small Claims Court has Jurisdiction:
The small claims court in Delaware may hear any of the following
claims if the amount in controversy does not exceed $15,000.00:
1. money debts
2. trespass actions
3. replevin actions
4. Landlord/tenant actions
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:
libel, slander, professional malpractice, assigned claims, 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 $15,000.00.
Must you be represented by an attorney? An
individual may appear in the Justice of the Peace Court without an attorney.
However, if you are unfamiliar with the legal issues and procedures in
your case, you may want to consider consulting with a lawyer. If
you are a corporation or other artificial entity or a public body, you
may only appear in a Justice of the Peace Court without a lawyer if you
file a Certificate of Representation (Civil Form 50) with the Chief Magistrate.
and comply with the other provisions of Supreme Court Rule 57. This Certificate
must be filed prior to filing your complaint or answer. The Certificate
of Representation must be renewed annually. There is a $10.00 annual registration
fee.
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: Determine the
type and amount of the claim. Obtain the correct name and address for the
defendant. Determine whether anyone other than the defendant needs to be
named for service. Obtain a complaint form, provide the appropriate information
on the form, and return it to the court clerk.
Who serves the Defendant with summons or process
and how is the defendant served: After the plaintiff has filled
out the complaint form, the court will attempt to serve the defendant unless
the defendant tells the court that he or she wishes to hire a special process
server. If the plaintiff is suing an out of state resident, the court will
not automatically attempt to serve the defendant.
Return of Summons: If the court is unable
to serve the complaint, the plaintiff will receive a Notice of Failure
to Serve Complaint which will list the reason the court was unable to serve
the papers.
If you are the Defendant, what should you do after
being served with a Complaint? When you receive the complaint,
you will also receive a summons which will direct you as to the next step
which you need to take to avoid a default judgment. If the complaint alleges
a debt and/or a trespass action, you must file an answer. If the action
is a debt, or trespass action the summons will direct you to complete and
return an answer (the answer is J.P. Civ. Form 7 which is enclosed with
the complaint and summons) within 15 days of your receipt of the summons. In the answer (J.P. Civ. Form 7) you
must check one of the following three choices:
a. You admit that you owe the debt or claim and do not want a trial.
If you check this, you are agreeing to the Court entering a judgment against
you for the amount claimed plus interest and costs. After the Court receives
your answer, the Court will send you a judgment which states the amount which you owe. Any money owed should be
paid directly to the plaintiff, not to the Court. If you pay the plaintiff
the amount claimed, you should be aware that the plaintiff is required
to notify the Court within 90 days that the judgment has been satisfied.
If the plaintiff does not do so, you may ask the Court for an award of
up to one-half the amount of the judgment.
b. You indicate that you want a trial.
c. In a debt action only, you may also indicate that you want the
plaintiff to provide you with a more detailed statement of the claim (this
is called a Bill of Particulars). The demand shall be filed in the Justice
of the Peace Court from which the complaint was served.
If the complaint is for a replevin and/or summary possession action,
a time and date for trial will be set and no answer is required to be sent
to the Court prior to the trial. However in a summary possession action
only, you may demand a jury trial by notifying the court in writing within
10 days of being served.
FOR ALL TYPES OF ACTIONS, REMEMBER:
You must appear at the time and date set for trial or a default
judgment may be entered against you.
You may file a counterclaim if you believe that the Plaintiff owes
you money. In some cases, you must file any claim you have against the
Plaintiff as a counterclaim or lose it.
You may file a third party action against a party other than the
Plaintiff who may be liable for all or part of the damages that the Plaintiff
seeks.
Removal to another Court: The claim
may be moved to another court if the amount in controversy exceeds the
statutory limits for small claims which are filed in Delaware.
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: After judgment is entered, an
appeal must be filed within 15 days. The appeal should be filed in the
Court of Common Pleas.
Collection of Judgment: After the judgment
is obtained and the appeal time expired, you may seek to collect the judgment
by acceptable means of collection. In Delaware, a judgment may be collected
as follows: an agreement by both parties, collecting from the defendant's
wages, garnishment, collecting from defendant's property, or file a request
that the constable levy
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Other Matters:
Are Motions allowed? Motions are allowed
by the parties on a limited basis.
Continuances: Continuances should only
be granted for good cause. A continuance request must include the
specific reason for the continuance and the position of the opposing counsel
or party on on the requested continuance.
Out-of-Court Settlement: If the parties
settle out of court, the parties must inform 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:
A
counterclaim is a claim made by the Defendant against the Plaintiff when
the Defendant believes that the Plaintiff owes him or her money. In most
instances, a counterclaim must be filed at least 5 days prior to trial
(excluding holidays and weekends). You must state in writing and in detail
why you are countersuing the Plaintiff. There is no specific form for this.
The written statement must be filed with the Court and a copy should be
delivered or mailed to the Plaintiff. With the Court's copy, you must file
a notarized affidavit stating how and when you served the Plaintiff's copy.
You must include the total amount of the counterclaim and how you arrived
at this figure. Under certain circumstances, if the Plaintiff has not had
enough time to prepare his or her defense to a counterclaim, the Court,
upon the request of the Plaintiff, may grant a 15 day continuance of the
trial. If your counterclaim arises out of the transaction or occurrence
which is the subject of the plaintiff's claim against you and your counterclaim
does not exceed $15,000, in most cases, you MUST file your claim as a counterclaim
and you will not be permitted to file it in a separate action.
If your counterclaim exceeds $15,000 or does not arise out of the
same transaction or occurrence which is the subject of the Plaintiff's
claim against you, you will not lose your right to sue by failing to raise
your claim as a counterclaim in the present action. However, if you are
the Defendant in a summary possession action, any counterclaim which you
did not raise because it was for an amount over $15,000 may not be raised
unless brought in the proper court within 60 days of the summary possession
judgment in the Justice of the Peace Court.
If your counterclaim exceeds $15,000, you may bring it as a counterclaim
in the Justice of the Peace Court if you are willing to limit any judgment
to $15,000. For more information on counterclaims see Justice of the Peace
Court Civil Rule 13.
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
Justice of the Peace Court Hours and Locations:
http://courts.state.de.us/jpcourt/html/hours.htm.
If you need help in finding a lawyer, you may wish to contact the
Legal Help Link at one of the following phone numbers:
New Castle County - 478-8850
Kent & Sussex Counties - (800) 773-0606
If you wish to obtain free legal assistance, when you call the Legal
Help Link, you will be asked questions concerning your income and the type
of case in which you are involved make you eligible for such assistance.
No fee generating cases may be handled. If you are not eligible for
free legal assistance, the Legal Help Link will refer you to the Lawyer
Referral Program. This program will select an attorney, convenient to you,
with whom you can meet to discuss your particular problem. The selected
attorney will consult with you for 30 minutes for a fee of $35. Often,
this initial visit may answer your questions or enable you to solve the
problem on your own, If, however, additional services are needed and you
decide to hire the referred attorney, fees and additional costs would be
arranged between you and the attorney. The Legal Help Link is a collaborative
effort among the Delaware State Bar Association, Delaware Volunteer Legal
Services, Inc., Widener University School of Law, Community Legal Aid Society,
Inc., and the Legal Services Corporation of Delaware, Inc.
VIDEOS
Civil Proceedings in the Justice of the Peace Court - ($2.00 - may
be obtained at any Justice of the Peace Civil Court)
Summary Possession Proceedings in the Justice of the Peace Court
- (free - may be obtained at any Justice of the Peace Civil Court)
Criminal Proceedings in the Justice of the Peace Court - ($2.00-
may be obtained at any Justice of the Peace Criminal Court)
Small Claims Rules: This summary contains
some of the provisions from the Delaware Small Claims Rules but does not
include a comprehensive discussion of all rules. For all Rules
which apply to Small Claims actions in Delaware see http://courts.state.de.us/jpcourt/pdf/civilrules.PDF.
