Certificate of Release of Memorandum of Lis Pendens or Attachment
Note: This summary is not intended to be an all inclusive
discussion of the law and procedures of small claims in Virginia, 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 Virginia: $1,000.00
Which Court hears small claims in Virginia?
In Virginia, the small claims court is a division of the general district
court. Cases which claim a maximum value of $1,000.00 or less will be heard
in small claims court.
Who hears the claims in small claims court?
A judge will hear the case in small claims court.
Claims over which the Small Claims Court has Jurisdiction:
The small claims court in Virginia may hear any of the following
claims if the amount in controversy does not exceed $1,000.00:
4. The above list is not exhaustive but does contain most of the
common claims. 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 $1,000.00.
Must you be represented by an attorney?
All parties will represent themselves in small claims court except as follows:
a corporate or partnership plaintiff may be represented by an owner, general
partner, or an employee of that corporation. Also, a plaintiff or defendant
who is unable to understand or participate on his own behalf in the hearing
may be represented by a friend or relative.
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:
According to the Virginia Code Ann. Title 16.1 Chapter 6 Article 5, Section 16.1-122.3,
actions in the small claims court will be commenced by the filing of a
small claims civil warrant by the plaintiff. At the time of the filing
of a small claims civil warrant, the plaintiff must pay the clerk the required
fee, which will be taxed as costs in the case. The plaintiff may be afforded
the opportunity to receive preprinted information promulgated by the Committee
on District Courts explaining the small claims court, including but not
limited to information on case preparation, courtroom procedures, methods
of collection, removal rights and appeals. The plaintiff will select a
time for the hearing which will be held at least five days after the service
of the warrant.
Who serves the Defendant with summons or process
and how is the defendant served:
After the clerk completes the clerk's portion of the civil warrant, the papers are sent to the sheriff
of the county or city where the defendant is located or the plaintiff may
hire a private process server to deliver the warrant to the defendant.
Return of Summons:
The sheriff, constable, or other process server, after effecting service, must endorse that
fact on a copy of the summons and return it to the court clerk who will
make the appropriate entry on the docket sheet of the action.
Removal to another Court:
Pursuant to The Virginia Code Annotated Title 16.1 Chapter 6 Article 5, Section 16.1-122.4,
a defendant has the right to remove the case to the general district court
at any point preceding the handing down of the decision by the judge.
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 more 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:
So long as the amount exceeds $50.00, either the plaintiff or the defendant has a right to appeal any
decision of the general district court to the circuit court. An appeal
must be filed within ten days after entry of the judgment.
Collection of Judgment:
The winning party may use the following procedures to collect judgment: Summons to
Answer Interrogatories, Abstract of Judgment, Writ of Fieri Facias, or
obtain a Garnishment Summons.
Other Matters:
Are Motions allowed?
Motions are allowed by the parties on a limited basis.
Continuances:
Either party may be granted a continuance for good cause shown.
Out-of-Court Settlement:
If a case is settled before the hearing date, one or both parties should notify the
court clerk as soon as possible so that the hearing can be canceled.
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:
If the defendant wishes to file a counterclaim, the court clerk can provide
the proper forms.
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
Statutes:
Virginia Code Annotated Title 16.1 Chapter 6 Article 5:
§ 16.1-122.2. Jurisdiction.
Notwithstanding any provision of law to the contrary, the small
claims court shall have jurisdiction, concurrent with that of the general
district court, over the civil action specified in § 16.1-77 (1) when
the amount claimed does not exceed $1,000, exclusive of interest.
§ 16.1-122.3. Actions; how commenced; notice; continuances;
pleadings.
A. Actions in the small claims court shall be commenced by the filing
of a small claims civil warrant by a plaintiff.
B. At the time of filing a small claims civil warrant, the plaintiff
shall pay to the clerk a required fee, which will be taxed as costs in
the case. The plaintiff may be afforded the opportunity to receive preprinted
information promulgated by the Committee on District Courts explaining
the small claims court, including but not limited to information on case
preparation, courtroom procedures, methods of collection, removal rights
and appeals. The plaintiff shall select a time for the hearing which shall
be held at least five days after service of the warrant. Such time shall
be subject to concurrence by the clerk's office. The chief judge may limit
the number of cases any one person may set for trial on any one date.
C. Upon the filing of the small claims civil warrant in small claims
court, the court shall cause notice of process to be served upon the defendant.
Notice of process shall consist of a copy of the warrant and shall be served
by the method used in general district court. If applicable, the defendant
shall be served with a copy of the preprinted information identified in
subsection B of this section attached to the copy of the civil warrant.
D. All forms required by this article shall be prescribed by the
Supreme Court of Virginia.
E. The trial shall be conducted on the first return date. However,
by consent of all parties or upon order of the court, the time for trial
may be changed from the time set for the first return. A continuance shall
be granted to either the plaintiff or defendant only upon good cause shown.
F. There shall be no pleadings in small claims court actions other
than the warrant and answer, grounds of defense and counterclaims not to
exceed $1,000.
This summary contains some of the provisions from the Virginia Code
Annotated but does not include a comprehensive discussion of all statutes.
For all Statutes which apply to Small Claims actions in Virginia see
http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+TOC16010000006000000000000.
