Order for Release of Property Held for Lien
Note: This summary is not intended to be an all inclusive
discussion of the law and procedures of small claims in North Carolina,
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 offers 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 North Carolina:
$4,000.00.
Which Court hears small claims in North Carolina?
The Superior Court of North Carolina will hear all small claims actions.
Who hears the claims in small claims court?
In small claims court, the trial is an informal hearing before a judge. There
is no jury and the plaintiff presents his or her evidence and witnesses.
The defendant is also responsible for presenting his or her witnesses.
After hearing both sides of the dispute, the judge will render a judgment
based on the law and the facts presented.
Claims over which the Small Claims Court has Jurisdiction:
The small claims court in North Carolina may hear any of the following
claims if the amount in controversy does not exceed $4,000.00:
4. 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, 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 $4,000.00.
Must you be represented by an attorney?
The parties may be represented by attorneys if they so choose.
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 North Carolina General Statutes Chapter 7A, Article 19, the plaintiff
must file his/her complaint in a small claim action in the office of the
clerk of the superior court of the county wherein the defendant, or one
of the defendants resides. The designation of "Small Claim" on the face
of the complaint is a request for assignment. If, pursuant to order or
rule, the action is assigned to a magistrate, the clerk issues a magistrate
summons substantially in the form prescribed in Article 19, Section 7A-213,
as soon as practicable after the assignment is made. The issuance of a
magistrate summons commences the action. After the service of the magistrate
summons on the defendant, the clerk gives written notice of the assignment
to the plaintiff. The notice of assignment identifies the action, designates
the magistrate to whom assignment is made, and specifies the time, date
and place of trial. By any convenient means the clerk notifies the magistrate
of the assignment and the setting.
Who serves the Defendant with summons or process
and how is the defendant served:
The clerk issues a magistrate summons. The issuance of the summons commences the action. After the service
of the magistrate summons on the defendant, the clerk gives written notice
of the assignment to the plaintiff. The notice of assignment identifies
the action, designates the magistrate to whom the assignment is made, and
specifies the time, date and place of trial. By any convenient means the
clerk notifies the magistrate of the assignment and the setting. The defendant
may be served by the sheriff or by certified mail return receipt requested.
Return of Summons:
The sheriff, constable, or other process server shall, after effecting service, 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.
If you are the Defendant, what should you do after
being served with a Statement of Claim?
Any time prior to the time set for trial, the defendant may file a written answer admitting
or denying all or any of the allegations in the complaint, or pleading
new matter in avoidance. No particular form is required, but it is sufficient
if in a form to enable a person of common understanding to know the nature
of the defense intended. A general denial of all the allegations of the
complaint is permissible.
Removal to another Court:
The claim may be transferred out of small claims court if the amount in dispute 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 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:
After judgment is entered, the losing party is entitled to appeal. The appeal will be perfected by oral
announcement of appeal in open court; by filing notice of appeal in the
office of the clerk of superior court within 10 days after entry of judgment;
and by serving a copy of the notice of appeal on all parties.
Collection of Judgment:
Judgment may be collected by writ of execution or the issuance of a lien against the
judgment debtor's property.
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 county clerk can provide
the proper forms. The defendant must provide a concise statement of why
the money is owed by the plaintiff. The counterclaim must be filed with
the court and notice must be served on 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
Statutes:
For more information concerning the Small Claims procedure in North
Carolina please see the North Carolina General Statutes Chapter 7A, Article
19.
See also http://www.jus.state.nc.us/cpframe.htm.
