Counter Affidavit
Note: This summary is not intended to be an all inclusive
discussion of the law and procedures of small claims in Utah, 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 Utah:
$5,000.00
Which Court hears small claims in Utah?
In Utah, the Small Claims Court is a division of the District Court. This
division is responsible for adjudicating cases which have a value of $5,000.00
or less.
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 Utah may hear any of the following claims
if the amount in controversy does not exceed $5,000.00:
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, 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 $5,000.00.
Must you be represented by an attorney?
Generally, the parties do not need an attorney, and attorneys are discouraged from
attending the proceedings.
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:
The plaintiff must file the appropriate forms with the court clerk. Once the plaintiff
completes the forms, he or she must have four copies to file with the court
clerk. One of the forms the plaintiff must file is a Small Claims Affidavit.
This form must be signed and notarized.
If you are the Defendant, what should you do after
being served with a Statement of Claim?
You have had a lawsuit filed against you. If you wish to contest the plaintiff's claim,
you must appear at trial on the appointed day. If you fail to appear at
trial, judgment may be entered against you for the amount requested.
If you do not dispute the claim, make arrangements with plaintiff to pay
the claim and the court costs. If the plaintiff obtains judgment and pursues
collection through the court, additional court costs may be charged to
you. If the plaintiff owes you money, you may file a Counter Affidavit
on a form provided by the clerk. Click here to download a copy of the Counter
Affidavit. You must file the Counter Affidavit, pay the proper fee ($35
for claims $2,000 or less, $50 for claims over $2,000) and mail it to plaintiff,
no later that 2 working days prior to the trial date. When you file the
Counter Affidavit with the court, be sure to bring 4 copies for filing.
If you intend to file a Counter Affidavit, many of the "Instructions To
The Plaintiff will apply to you. Read them.
Removal to another Court:
The case may be removed from small claims court if the amount in controversy
exceeds $5,000.00.
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:
A party has the right to appeal the ruling to a higher court within ten business days after the original
judgment has been issued. Either party may appeal a Small Claims judgment
within 10 business days after the notice of entry of judgment is mailed
or hand-delivered to the losing party. A Notice of Appeal must be filed
with the court and the appropriate fee paid.
Collection of Judgment:
The winning party may collect judgment by placing a lien on the losing party's property.
Judgment may also be collected by writ of execution or garnishment.
If judgment is granted, the winning party has the right to enforce
the judgment. The losing party may be required to testify regarding assets
and income. A lien can be placed on the losing party's property, and non-exempt
wages, bank accounts, stocks and other assets can be seized and sold by
the sheriff or constable. A judgment can accrue interest and the prevailing
party may be entitled to recover court costs accruing after judgment. A
judgment must be collected or renewed within 8 years of the date it is
granted or it expires.
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:
Utah Code Title 78 Chapter 6:
78-6-1. Small claims -- Defined -- Biannual review --
Counsel not necessary -- Deferring multiple claims of one plaintiff -- Supreme
Court to govern procedures.
(1) A small claims action is a civil action:
(a) for the recovery of money where the amount claimed does not exceed $5,000 including
attorney fees but exclusive of court costs and interest and where the defendant resides or the action of indebtedness
was incurred within the jurisdiction of the court in which the action is
to be maintained; or
(b) involving interpleader under Rule 22 of the Utah
Rules of Civil Procedure, in which the amount claimed does not exceed $5,000
including attorney fees but exclusive of court costs and interest.
(2) The judgment in a small claims action may not exceed
$5,000 including attorney fees but exclusive of court costs and interest.
(3) Counter claims may be maintained in small claims
actions if the counter claim arises out of the transaction or occurrence
that is the subject matter of the plaintiff's claim. A counter claim
may not be raised for the first time in the trial de novo of the small
claims action.
(4) The Judicial Council shall present to the Judiciary
Interim Committee prior to the general session of the Legislature during
odd-numbered years a report and recommendations concerning the maximum
amount of small claims actions.
(5) Persons or corporations may litigate actions
on behalf of themselves in person or through authorized employees with
or without counsel.
(6) If a person or corporation other than a municipality
or a political subdivision of the state files multiple small claims in
any one court, the clerk or judge of the court may remove all but the initial
claim from the court's calendar in order to dispose of all other small
claims matters. Claims so removed shall be rescheduled as
permitted by the court's calendar.
(7) Small claims matters shall be managed in accordance
with simplified rules of procedure and evidence promulgated by the Supreme
Court.
78-6-1.5. Evening hours -- Judges pro tempore.
The district or justice court may request that the Supreme Court appoint a member of
the Utah State Bar in good standing, with the member's consent, as judge
pro tempore to hear and determine small claims at times, including evening
sessions, to be set by the court. Such judges pro tempore, after
being duly sworn, shall serve voluntarily and without compensation at the
request of the court, shall be extended the same immunities, and shall
have the same powers with respect to matters within the jurisdiction of
the small claims court as may be exercised by a judge thereof.
78-6-10. Appeals -- Who may take and jurisdiction.
(1) Either party may appeal the judgment in a small claims action to the
district court of the county by filing a notice of appeal in the original
trial court within ten days of the notice of entry of the judgment.
If the judgment in a small claims action is entered by a judge or judge
pro tempore of the district court, the notice of appeal shall be filed
with the district court.
(2) The appeal is a trial de novo and shall be tried in accordance
with the procedures of small claims actions, except a record of the trial shall be
maintained. The trial de novo may not be heard by a judge pro tempore appointed under Section
78-6-1.5. The decision of the trial de novo may not be appealed unless the court rules
on the constitutionality of a statute or ordinance.
This summary contains some of the provisions from the Utah Code
but does not include a comprehensive discussion of all statutes.
For all statutes which apply to Small Claims actions in Utah see http://www.livepublish.le.state.ut.us/lpBin20/lpext.dll?f=templates&fn=main-hit-h.htm&2.0.
