Small Claims Court in North Carolina
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.
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.
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.
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.
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 File the Lawsuit
The DEFENDANT is the one who is being sued.
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.
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.
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
Small Claims Trial Required Before Eviction
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.
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.
Landlords and Tenants
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.
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
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
judgments against corporations.
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
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
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.
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.
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