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Small Claims Court

Small Claims Court in North Carolina

What is Small Claims Court?

Small Claims Court is part of the North Carolina court system where people settle disputes regarding property or money worth $5,000 or less. Every county in North Carolina has a Small Claims Court, which is sometimes called Magistrate's Court. The judge called a magistrate, may or may not be a lawyer. There is no jury. The trial is quick and informal, usually lasting no more than 15 or 30 minutes. You don't have to have a lawyer to represent you in Small Claims Court, but you may have a lawyer. The person who starts the lawsuit is the plaintiff. The person being sued is called the defendant.

In the three cases below, you would be the plaintiff:

A repairman came to fix your refrigerator and in the process knocked a hole in your kitchen wall. The repair shop won't pay for the damages, so you sue the shop for your loss.  Someone dents your car but refuses to pay for the damage, so you sue that person.  Your landlord refuses to make your home or apartment meet housing codes, and you sue for damages, repairs, or lower rent.

You would be the defendant in these three cases:

Your landlord tries to evict you from your apartment and collect back rent.  A finance company sues you for money it claims you owe on a loan.  A finance company sues you for possession of property which you pledged as collateral for a loan.

What You Cannot Do in Small Claims Court

This court is not used for criminal offenses, traffic tickets, or disagreements over child support, among other things. You have to be 18 years old to use Small Claims Court. [More]

Do You Need a Lawyer?

Before you decide to handle your own case in Small Claims Court, you need to think about whether you need a lawyer. If you are facing eviction by your landlord or being sued by a finance company, you may need a lawyer.  If your income is no more than 125 percent of the poverty level, you may be eligible to get free legal assistance from the Legal Services office nearest you. You may want to call a Legal Services office to find out if a lawyer can help you with your case.

The Costs of Small Claims Court

Suing someone in Small Claims Court costs money. For each lawsuit, the plaintiff must pay a filing fee to the clerk of court. You pay an additional $15 fee for each defendant to cover the cost of the sheriff getting the proper legal forms to the defendant. The plaintiff can choose to mail the papers directly to the defendant, but this is more difficult and not much cheaper. If you win your case, the court may add these fees to the amount that the defendant is supposed to pay you.

If you cannot afford to pay the fees, you may not have to pay them. You have to fill out a form called "Petition to Sue/Appeal as an Indigent," shown on the next page. You get the form from the clerk. You fill out the top part of this form and sign it before a notary public.

There can be additional fees if you ask the sheriff's department to enforce the judge's order or want to appeal a judge's ruling.

If you receive food stamps, Aid to Families with Dependent Children (AFDC) or Supplemental Social Security (SSI), then the Clerk will automatically allow you to bring the lawsuit without paying any fees. If you do not receive any of those benefits, then the Clerk may ask for additional financial information to determine whether you can afford to pay the costs.

If You Are the Plaintiff

How to File Your Claim

To start a lawsuit, you deliver a complaint and a summons to the Office of the Clerk of Superior Court Small Claims Division in the courthouse of the county in which the defendant lives. This section explains where to sue, which complaint form to use, how to fill in the proper legal forms, how to file the claim, and how to get the forms to the defendant.

Where to Sue

If you are suing someone who lives in your own county, start the lawsuit there. If you are suing someone in a different county, you must start the lawsuit in that county. This means mailing or taking the forms and fees to the clerk of court in the other county.

Your trial will be held in the county where the defendant lives. If you are suing more than one defendant and they live in different counties, pick a county where one of them lives and sue them all in that county. For instance, if one of the defendants lives in your county but another defendant does not, you can sue both defendants in your county.

Choosing A Complaint Form

Before you start your lawsuit, you must fill out a complaint form. The clerk of court has different complaint forms for different kinds of problems. The three most commonly used are Complaint for Money Owed, Complaint in Summary Ejectment, and Complaint to Recover Possession of Personal Property.

If you want to get back some property which is in dispute, you should use the Complaint to Recover Possession of Personal Property. On that form, you as the plaintiff must say if you are a "secured party" or not. A secured party is usually a finance company or other institution of some sort rather than an individual. If you have a written statement that you may repossess property if payments are not made according to an agreed upon schedule, then you are a secured party.

Landlords use the Complaint in Summary Ejectment to collect back rent or evict tenants. This form is fairly complicated to understand both for landlords (the plaintiffs) and tenants (the defendants).

If none of the standard forms suit your exact situation, you may write your own complaint. Be sure to state what your claim is and include the type of information as indicated on the other forms.

How to Fill Out Complaint for Money Owed

If you are filing the suit, put your correct full name as plaintiff, with your address and telephone number, if any. You must include the name of your county.

Put the person's full name being sued as defendant, with the address and telephone number, if any, and the county where the person lives.

If you are suing a you must find out if it is a corporation or not. If the business is a corporation, you list the correct name of the corporation as the defendant. Your complaint and summons must go to the "registered agent" of the corporation, or to an officer, director, or managing agent of the corporation. If the business is not a corporation, you list the owners of the business as the defendants.

List the name and address of your attorney, if you have one. If you don't have an attorney, leave this blank.

List the county where you are bringing the lawsuit.

After "Principal Amount Owed," put the exact amount of money, which you claim the defendant owes you. If you are claiming interest on this money, put that amount on the next line. Add the two figures to get the "Total Amount Owed."

In the sample complaint form, note the choices of boxes the plaintiff may use. You can check a box and fill in the information on the on the line next to the box. Or you can check "other" and describe the purpose of your suit.

How to Fill Out the Summons and Assignment Card

You must also mail out a summons, which is available from the clerk's office. This notice of the lawsuit goes to each defendant. You fill out the top part of the form. Write the county where you are suing, your name as the plaintiff, the name of the defendant, and under "'TO:", the name and address of each defendant. If you are suing a corporation, list it as the defendant, and under "TO:", put the name and address of the registered agent, an officer, director, or managing agent of the corporation. [More]

The clerk will fill in the rest of the form, sign it, and set the date and time for the trial. This tells the defendant when to come to court. The date will be no later than 30 days from the day you file your complaint.

The clerk may also ask you to fill out a Notice of Assignment/Service card. Put your name on the back, so that it is like a postcard addressed to yourself. The clerk of court mails this card to you when your case is scheduled. It lets you know when your case will be heard and whether the defendant received the summons and complaint.

How to File the Lawsuit

Make a copy of the complaint and summons for yourself and a copy for each defendant you are suing. Give all the copies to the clerk of court, who stamps the date and time on them. When you file the complaint, you will need to pay the court cost or file the Case as an indigent.

For the filing of the lawsuit to be completed, a copy of the complaint and summons must then be delivered to each defendant. You can have this done through the sheriff's office, or you can do it yourself through a complicated procedure explained in the next section.

If you choose to use the sheriff's office, you must pay a $15 service fee for each defendant. You pay this $15 fee directly to the sheriff; by certified check or money order. If you filed as an indigent, you do not need to pay the $15 fee.

When filing by mail, use either a money order or cashier's check. Make separate checks for the filing fee, to the Clerk of Superior Court, and for the $15 service fee for each defendant, to the Sheriff's office. Do not send cash or a personal check.

Getting the Legal Papers to the Defendant

You can get the complaint and summons to the defendant using the sheriff, the mail, or other means. The sheriff's office is much simpler than other methods. Here's why.

By Sheriff. You must take the forms stamped by the clerk from the clerk's office to the sheriff's office. Keep a copy of the stamped complaint and summons for your records.

The sheriff's deputy keeps a copy of the summons and fills out the back telling how the complaint and summons were delivered to the defendant. The deputy will then file this information with the clerk of court.

If you use the sheriff, you should receive the assignment card from the clerk telling you whether the defendant received these papers and the date of your trial. If you do not receive the assignment card in several weeks, check with the clerk directly. The case cannot be heard in court if the defendant has not been notified.

By Mail. You may prefer to send the complaint and the summons to the defendant by registered or certified mail, but this is more difficult. You must do this yourself at the post office and ask for return receipt requested. You then have to write a statement and get it certified by a notary public that you followed the right steps in this process. Next, you have to file that statement with the clerk of court, along with the post card which the post office mails back to you showing that the defendant got what you mailed, The clerk must get this certified statement from you before completing the Notice of Assignment/Service card.

By Other Means. If you cannot get the complaint and summons to the defendant using these instructions, there are other ways to try to serve the defendant. For instance, you can start over with a new summons form, which you can get from the clerk. Or you can use what's called "service by publication," which is giving notice to a defendant through a newspaper. You may need a lawyer to help you do this.

If You Are the Defendant

What to Expect

If you are being sued, you will get a copy of the summons and a copy of the complaint from the sheriff or by registered or certified mail. Read both sides of the complaint and summons carefully. These court papers will tell you what the case is about and when you have to be in court.

If you think you will need a lawyer's help to defend your case, talk to one right away. Don't wait until the last minute to contact a lawyer. This is especially important if a landlord is trying to evict you.

If you are a tenant, there are several ways you can be notified of a proposed eviction. Besides receiving a complaint and summons from the sheriff or by certified mail, these forms can be posted on your home. Legal papers posted on your door are important! Pay attention to them and see a lawyer or decide immediately what you are going to do.

You may, if you wish, mail a formal answer to the clerk of court about the complaint or take this written answer to court. But you can also just wait and tell your side of the story at the trial.

You may have a complaint against the person who is suing you. If you want to file what's called a counterclaim you will probably need to contact a lawyer.

How to Prepare for the Trial

Remember:

     The PLAINTIFF is the one who is suing someone.
     The DEFENDANT is the one who is being sued.

If you are the plaintiff, YOU must prove in court:

why the defendant owes you money and the amount owed:

why the defendant should return certain property to you, which property should be returned, and in some cases, the value of the property (an Issue when the defendant claims that the disputed property is worth more than the $5,000, the highest amount allowed to be settled in this court); and

if you are the landlord seeking a summary ejectment action, why you are entitled to an order requiring the defendant to move out.

If you are the defendant:

you try to show that you do not owe the money or should not have to return the property, or that you owe less than the plaintiff says you owe; or

in a summary ejectment case, you need to show why you should not be required to move out, or that the landlord owes you money because of the landlord's failure to maintain your home in a livable condition.

Steps to Prepare for the Trial

Gather your evidence. Get together any materials you have that will help you prove your side of the story, including receipts, letters, photos, leases, cancelled checks, contracts, or ledgers. Bring them with you when you come to court.

Witnesses. Anyone who has first-hand knowledge about the case can be a witness - friends, family members, strangers, even a child. If they can help you prove your side of the story, they can help you in your trial. But they have to come to court to tell the judge themselves about what they saw or know. Be sure and tell your witnesses when and where the case will be heard. If a witness won't come to court, or can't get off work for the trial, you might want to force the witness to come to court by having the sheriff deliver a subpoena to that witness.

Practice what you are going to say. Before you go to court, practice. Think about what questions the other side and the judge may ask you in court. Think about how you should answer them. The magistrate may not give you much time to tell your story, so you have to be able to list the most important points briefly and clearly. But be sure you say everything important to your case.

Visit the Court. If you have time, go to Small Claims Court to see what its like. This can be especially helpful if you've never been in court. Small Claims Court is much more informal than other courtrooms.

Settling Out of Court

You may decide to settle out of court, whether you are the plaintiff or the defendant. If you do reach such an agreement, get it in writing. You may need a written agreement later if the other party does not follow through.

If you are the defendant, don't settle just to keep from going to court. If you think you don't owe what the plaintiff says you owe, then you should present your case to the magistrate.

If you can reach an agreement with the other side before the court hearing, you do not need to go to the trial. When a case is settled out of court, the plaintiff should notify the clerk of court so that the case is dismissed. If you are the defendant, check with the clerk of court before your trial date to be sure that the plaintiff has really dismissed the case. If the case is settled out of court, the plaintiff will not get back the court costs that were paid, unless the defendant agrees to pay them as part of the settlement.

The Small Claims Court Trial

Be On Time

Go to court fifteen minutes early! It is very important not to be late. If you are the plaintiff and not there when the magistrate calls your case, he or she can dismiss the case. If you are the defendant and not there when the magistrate gets to your case, the plaintiff still must prove the case. But the plaintiff will have a much easier job if you aren't there to tell your side of the story.

If you cannot make it to court on the day of your trial, call the small claims office ahead of time and ask for a later court date. The magistrate may or may not give you another court date. But if you are the plaintiff and don't call and don't show up at court, the magistrate will dismiss your case. If you are the defendant and don't call or show up, you are likely to lose.

Small Claims Trial Required Before Eviction
If your case is dismissed "without prejudice"; and you still want a hearing, you may either appeal the case to District Court or you will have to start all over, filing new forms and paying the fee again. If your case is just dismissed, it is considered "with prejudice" and cannot be filed again. However, you could still appeal the case to District Court.

The Events at the Trial

When it is your turn to speak, tell your story simply and truthfully. Focus on the facts, not your opinion. You should not try to act or sound like a lawyer. Just be yourself. Show the magistrate any evidence you have. After you have testified, your witnesses can testify and you can ask them questions.

The magistrate or the other side may ask questions of you and of your witnesses. Remember that you and your witnesses only have to answer questions about the facts. You do not have to answer questions about the kind of person you are or anything else that is not an issue in the case. Tell the magistrate if you do not want to answer, and why. It does not help your case to argue with the other side. The magistrate will tell you if you must answer a question. Here are the usual order of events at the trial.

The Oath. All those giving evidence or testimony during the trial must swear or affirm that they will tell the truth. This includes plaintiff, defendant, and witnesses. You do not have to swear on a Bible; you can affirm to tell the truth.

The Plaintiff's Case. The magistrate asks the plaintiff to present his or her case first, including any evidence and witnesses. The defendant gets to ask questions of the plaintiff and each of the plaintiff's witnesses after each one testifies.

The Defendant's Side. The defendant then presents that side of the case, with any evidence and witnesses. The plaintiff gets to ask questions of the defendant and each of the defendant's witnesses after each testifies.

The Magistrate Reaches a Judgment. The magistrate reviews the evidence and reaches a decision, which is called a judgment and explained in detail in the next section. No more evidence can be given to the magistrate after the trial.

The Magistrate's Judgment

The magistrate can make a decision at the trial or may wait up to 10 days to issue the judgment. In the judgment, the magistrate may:

dismiss the case, if the plaintiff has not proved the case;

order the defendant to pay either the full amount claimed by the plaintiff or part of that amount, including the plaintiff's filing fees;

order the defendant to return property to the plaintiff; or

in summary ejectment cases, order the defendant to vacate the premises and/or pay rent or damages that are due.

If the magistrate makes a decision that you do not understand, ask the magistrate to explain it to you before you leave the court. If the magistrate makes the judgment during the 10 days after the trial, you can call or go to the Clerk of Superior Court later to find out the judgment. Be sure to have the case file number with you.

Landlords and Tenants
Small Claims Trial Required Before Eviction
For a landlord to evict a tenant legally, North Carolina law requires that the landlord file an action in Small Claims Court called a "summary ejectment." The landlord cannot just lock you out of your home or try to force you to move through such actions as cutting off your electricity. If you are a tenant and your landlord is trying to evict you - have you put out of your house or apartment - you have other legal protections and rights which are not covered in this booklet. For more information on evictions, contact your local Legal Services office.

After the Trial

At the end of the trial, or up to 10 days after the trial, the magistrate will sign a written decision called a judgment. The magistrate gives this to the plaintiff, the defendant, and the clerk's office. The clerk files the judgment in the official court records, which are available to the public. These records include the losing person's name, the amount and nature of the judgment, and whether the judgment has been paid. Creditors use these records for credit checks.

The Plaintiff - Getting What is Owed You

If you are the plaintiff and have won your case, the defendant should pay you directly. The defendant must do this within 10 days after the judgment or appeal to District Court, which is explained in the next chapter.

If the defendant pays you directly, you must go to the clerk's office and personally note this payment in the official records. Do this within 60 days or the defendant can sue you to make you do this. In such a suit, you pay the defendant's attorney and court costs.

If the defendant has not paid or appealed in the 10-day period, you can come to the civil division of the Clerk of Superior Court's Office and have the clerk issue an order to the sheriff called an execution. This gives the sheriff the power to demand payment of your judgment from the defendant. If the defendant does not pay, the sheriff can then seize any cash, vehicles, goods or other property of the defendant, sell them, and use the money to pay the judgment. The sheriff turns over any money collected in this way to the clerk, who notes payment in the official records and gives the money to you.

There is a fee for issuing this execution order, and a fee to the sheriff's office for trying to collect the judgment.

Property Which the Sheriff Cannot Take - "Exempt" Property

The law lets the defendant keep some property, which is called "exempt" property. Therefore, before the clerk can issue the execution order, you must get two new forms from the clerk, called Notice of Right to Have Exemptions Designated and Motion to Claim Exempt Property. You must fill out portions of these forms, have the clerk sign the Notice and then have both forms served on the losing party. You can do this using the sheriff or the mail.

After receiving these forms, the defendant has 20 days to fill out the Motion to Claim Exempt Property, mail or deliver it to the clerk's office, and send you a copy. If the defendant does not return the form in the 20-day period or returns the form showing there is property to take, you can then ask the clerk to issue the execution to the sheriff. If the defendant returns the form but lists property as exempt that you believe should not have been listed, then you can ask for a hearing before a District Court judge. At that hearing, you and/or the judge can ask the defendant questions about the property listed on the Motion to Claim Exempt Property or any other property which you believe that the defendant may own but did not list on the Motion. If the defendant denies owning certain property, then you will need to prove that the defendant is wrong. The Judge will then make a decision about what property the defendant can keep. After that decision is made, then you can ask the clerk of court to issue the execution to the sheriff.

There is a fee for issuing this execution order, and a fee to the sheriff's office for trying to collect the judgment. Sometimes the defendant may give the sheriff the money that is owed on the judgment. If the defendant does not pay, then the sheriff will need to locate property that can be taken to pay the judgment, then there will be additional costs involved in taking the property and selling it. You will be required to post a bond before the sheriff will take the property and sell it to pay the judgment. You will be reimbursed for these costs from the money collected from the sale of the property.

Do not attempt to take the execution to the other party yourself. Only the sheriff can deliver an execution and collect the money. After an execution is in force, do not accept any money or property from the other party.

The execution papers are good for 90 days. If the sheriff cannot locate the defendant to deliver the execution or cannot locate property that can be taken to pay the judgment within that 90 day period, then he will lose his authority to try and collect the judgment for you. After the 90 days, the sheriff will return the papers back to the clerk of court with a written statement about why the papers are being returned. If you still want to try and collect the judgment, then you will need to pay additional fees and ask the clerk to issue another execution. There is no limit on the number of executions that the clerk can issue. However, you are required to give the defendant a new Notice of Right to Have Exemptions Designated and Motion to Claim Exempt Property before any new executions are issued.

If The Magistrate Rules Against You

If the magistrate orders you to pay money to the other side, and you decide not to appeal, you should pay the money directly to the other side. After you pay to the other side, get that party to go to the clerk's office to have the official records marked "paid." The plaintiff must do this within 60 days or you can sue to have it done, with the other side paying your attorney and court fees.

If the magistrate orders you to return property to the other side, and you decide not to appeal, return the property directly to the plaintiff. Be sure to get a receipt from the plaintiff or plaintiffs lawyer when you turn over the property.

Until the judgment is paid in full, the records in the clerk's office will show that the judgment is "outstanding." This could hurt your credit rating.

If You Lose and Can't Afford to Pay

If you get a judgment against you and do not pay it, the other side may ask the sheriff to enforce the judgment. Your car or other property could be sold by the sheriff to satisfy the judgment. However, before any property is taken by the sheriff, you can claim some of your property to be "exempt property" - that is, property that is protected from being collected. You may be able to keep your car, house, household property, or other property.

Before your property is taken for a debt, you must receive a Notice of Right to Have Exemptions Designated and a Motion to Claim Exempt Property. You must fill out the Motion to Claim Exempt Property, return it to the clerk of court, and send a copy to the plaintiff or plaintiff's attorney within 20 days OR YOU COULD LOSE EVERYTHING YOU OWN!

If you do not fill out the form or do not claim property as exempt, the plaintiff can then ask the sheriff to start the execution. The sheriff can then come to your home or place of work to collect the money or seize property to sell in order to pay the judgment.

The sheriff can check at your house from time to time to see if you have gotten any property that is not exempt or given away any that you claimed. For more information on exempt property, contact your local Legal Services office.

The sheriff will not put you in jail because you cannot pay the judgment. The judgment stays on your record for at least 10 years or until you pay it.

What Property Can Be Protected:

The exemption law lists different types of property, and sets limits for the amount of each type of property that can be exempt. Exemption limits are based on the "equity value" of your interest in each item of property. To determine your equity value in an item, follow these steps:

Determine the fair market value of your interest in the item. "Fair market value" means what you could sell the Item for (at the flea market, for example). If you co-own the item with someone else, only the fair market value of your share of the property is counted.

Determine the amount owed (pay-off) to each creditor who has a security interest in the item.

Subtract # 2 from # 1.

Following is a list of the types of property that can be exempted, with the "equity value" exemption limits for each type of property.

Each debtor can exempt:

up to $10,000 in land, house, mobile home or other property used as a residence, or burial plots. (Additional protections may apply to real property or mobile homes owned by married persons.)

up to $3,500 in any property (this amount is reduced by the amount of exemption claimed for residence or burial plot).

up to $1,500 in one automobile.

up to $3,500 in clothes, household furnishings and goods, appliances, books, animals, crops, and musical instruments which are used primarily for personal, family, or household use. (This amount increases $750 for each dependent of the debtor up to a maximum of four (4) dependents.)

up to $750 in books, tools, or other implements used in the trade of a debtor or dependent of the debtor.

life insurance policies listing dependents as beneficiaries.

items of health care aid necessary for you or your dependents to work or sustain health.

compensation for personal injury or for the death of a person upon whom you depend for support (unless the judgment is for services related to the compensated injury).

What Property Is Not Protected?

Exemptions don't apply to the following:

all of your property, if you fail to claim your exemptions on time!

the value of property in excess of the exemption amounts allowed.

personal property purchased less than 90 days before the judgment collection proceedings begin.

claims of the Federal government or its agencies, to the extent that federal law so provides.

claims of the State or its subdivisions for taxes, appearance bonds, or fiduciary bonds.

claims for liens placed by law against specific property.

if a creditor takes a security interest in connection with the purchase of an item, the item is not exempt from a judgment for the property by that creditor.

orders for child support, alimony, or property distribution related to divorce or alimony.

property owned by debtors who do not reside in North Carolina.

judgments against corporations.

Tips For Protecting Your Exemption Rights<, /SPAN>

Notify the Clerk of Court and judgment creditor(s) if you change addresses after a judgment is entered. If you cannot be located for personal service by the Sheriff or by certified mail, service of the exemption notice can be made by regular mail to your "last known" address, whether or not you actually receive it.

Carefully read all mail and Court notices you receive. Your 20-day time limit for claiming exemptions begins on the day after you are served with the exemption notice.

Read and follow the instructions stated on the Motion form. Complete each section of the Motion. Make sure you list all of your property, including your share of property owned with others. You can attach additional pages if necessary. Values should be based on what you reasonably believe you could sell the item for at a flea market, for example. If an item has no equity value (see above), you should list the item with a "$0" value.

Make sure to follow instructions at the end of the Motion for signing, dating, and serving your Motion. One copy of the Motion must be filed with the Court, and a copy must also be sent to the creditor - all within the 20 day time limit.

If you need help completing the exemption motion, if you own property in excess of exemption limits, or if the creditor objects to your exemptions, promptly contact an attorney or legal services program for assistance.

Appeals to District Court

After the judgment in Small Claims Court, either side can appeal to get a new trial in District Court. To appeal, you must either tell the magistrate at the trial after the decision is made or file a written Notice of Appeal to District Court form along with a court action cover sheet with the clerk within 10 days from the date of the judgment. If you file a written notice, you must mail a copy of it to the other side within 10 days of the judgment.

Cost

To appeal your case you must pay a fee to the clerk of court within 20 days after the judgment. If you cannot afford to pay this fee, ask the clerk for the "Petition to Sue/Appeal as an Indigent" form and file it within 10 days after the magistrate issues the judgment.

The clerk, magistrate, or judge will probably decide at the time you file the form whether you have to pay the fee. However, he or she may take up to 20 days after the judgment to decide this. If you don't get a decision right away, you will have to keep checking with the clerk of court throughout this 20-day period to find out if you can appeal as an indigent. If you are not allowed to appeal as an indigent, you must pay your fee before the 20-day period is up in order for your appeal to go forward in the courts.

Waiting for the Appeal To Be Heard

If you appeal a judgment made against you in Small Claims Court, you do not have to pay that judgment until the District Court decides the case. If the judgment requires you to deliver property to the other side, however, you may have to turn the property over, or post bond in order to keep the property during the appeal. Instead of a bond, the clerk might ask you to put up cash or other security to keep the property.

If you are a tenant and want to continue living in your residence while appealing the case, you must sign a statement agreeing to pay your rent to the court during the appeal process. Some of this rent may be due at the time you appeal.

District Court

When a case involving eviction or possession of property is appealed by either party, a new trial date is set for District Court. When a case involving money owed is appealed by either party, the court will set your matter for court-ordered arbitration. If an appeal of the court-ordered arbitration is given the case then goes to the District Court. It is handled as if the case has never been tried before. This means you will have to present your evidence and witnesses again. Either side may ask to have a jury to decide the facts, but this request must be made at the time the notice of appeal is filed. If neither side chooses to have a jury, the judge will decide the case. The procedure in District Court is more formal and takes more time. Legal papers that you may want to file are not available as forms from the clerk. Most people find they need a lawyer to take a case to district court. This is especially true if you are a tenant appealing an eviction.

Appendix

Age - A person under age 18 can have a Claim filed by a guardian ad litem who has been appointed by a clerk of court. A guardian ad litem must be over 18 and can be a parent. relative, or friend. If the person you wish to sue is under age 18 or under any legal disability, such as mental incompetence, you should ask a lawyer for help.

Businesses as Defendants - If you are suing a business, you must first find out whether it is a corporation or not. To find this out, along with the name and address of the corporation's registered agent, call the N.C. Secretary of State, Corporations Division, (919) 733-4201. If the business is a corporation, the Corporations Division will tell you the county, city, and street address of the corporation's registered office and principal place of business, which could be in different counties. You may sue this corporation in either county. If there is no record of the corporation's registered office or principal place of business, you may sue the corporation in any county where it does business.

If there is no record of that business as a corporation, then go to the Register of Deeds office in the county where the business has its main office. The Register of Deeds, which is located in the Pitt County Courthouse, has the name of owners of businesses in its county. Write the business owner and name on the court papers as the defendant. If the Register of Deeds office does not have information about the owners or their addresses or about any registered office, you may sue the business in any county where it does business.

Counterclaims - If you are the defendant and have a claim against the person who sues you, you can sue that person as part of the same case. You do this by filing a "counterclaim," also in Small Claims Court. For example, an appliance store may be suing for a repair bill you didn't pay. But you don't want to pay because the repairman knocked a hole in your wall, which you paid to have repaired. You want the appliance company to pay for that damage before you pay its repair bill. Your counter-claim cannot be more than $5,000.

To file a counterclaim, you need to write an answer to the complaint you get. Write what your claim is and your answer to what the plaintiff says under the heading "Answer and Counterclaim." Take the written answer and counterclaim to the clerk of court on or before the day of your trial. Include with the answer and counterclaim a signed statement of how you will give these papers to the defendant, which you can do in person or by regular mail. All of this must be done before the time set for the trial.

If you are the defendant and have filed a counterclaim against the plaintiff, the magistrate may order the plaintiff to pay part or all of your claim, or may order the property returned to you.

If you win your counterclaim, you can collect on it the same way that a plaintiff collects on a judgment.

Subpoena. If a person cannot get time off from work to come to court or is unwilling to come, you can get a subpoena from the clerk of court. This is a legal notice, which requires the witness to come to court. You will have to pay a $15 fee for the sheriff to deliver the subpoena to the witness. Each witness who is subpoenaed can collect a fee of $15 and, if the witness is from outside the county, travel expenses from the court, after the judgment is collected. These fees are then added to the court costs, which are paid by the person who loses, if the judgment is collected.

Suits Over $5,000. - The limit of $5,000 on suits in Small Claims Court does not include interest or court costs. If you have a claim over $5,000, you can either file your claim in District Court, where you will probably need a lawyer to represent you. Or you can lower your claim to $5,000 and file it in Small Claims Court; if you do this, you lose the right to any of the amount over $5,000.

Wrong Person is Sued. - If you are being sued and think someone else is at fault in the case, you can use a legal procedure to have this person appear in court as another party to the lawsuit. This person is called a "third party defendant" in a situation like this, you will need a lawyer to be sure that your rights are protected.

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