How to file and respond to a lawsuit in the Small Claims Court of DuPage County, Illinois
The Civil Practice Committee of the DuPage County Bar Association in cooperation with Members of the Judiciary of the Eighteenth Judicial Circuit Court and Honorable Chris Kachiroubas DuPage County Circuit Court Clerk present the following information.
The following information does not constitute legal advice of any kind. Although every attempt at accuracy has been made, the authors and the DuPage County Bar Association, do not warrant the legal correctness of the information contained in this information and strongly urge you to consult with the attorney of your choice. Fees listed below are subject to change without notice.
What is Small Claims Court?
The Small Claims Court is a court specifically designed to hear those cases involving claims of $10,000.00 or less.
Who can use the Small Claims Court?
Anyone can file a lawsuit in the Small Claims Court, if the amount claimed is not more than $10,000.00. If you choose to act as your own attorney, you must do all the investigation and preparation normally done by the attorney, including representing yourself in Court, securing witnesses, collecting documents, photographs and the like. Neither the Judge nor the Clerk will do this for you. No Corporation may appear as claimant, assignee, subrogee or counter-claimant in a small claims proceeding, unless represented by counsel. When the amount does not exceed $1,500.00, a corporation may defend as defendant any small proceeding in any court of this State through any officer, director, manager, department manager or supervisor of the corporation as though such corporation was appearing in its proper person. For the purpose of this rule, the term "officer" means the president, vice president, registered agent or other person vested with the responsibility of managing affairs of the corporation. (Supreme Court Rule 282(b), effective August 1, 1987).
What can you sue about?
If someone owes you money or has damaged you in some way for no more than $10,000.00, you can file a lawsuit in the Small Claims Court.
How do you file a Small Claims Complaint?
If you file a Small Claims suit, you are called the PLAINTIFF. If you have been sued in the Small Claims Court, you are called the DEFENDANT. In order to begin a Small Claims action, you must file a COMPLAINT with the Clerk of the Circuit Court. A complaint is a paper explaining whom you are suing, where the person lives, how much money they owe you and why they owe you the money. The COMPLAINT is signed by the Plaintiff and the statement is sworn to before a Notary Public or Clerk of the Court. You must list the Defendant's exact name and address. The Clerk will not help you find that out. If the defendant is a corporation, you must serve an officer of the corporation or the registered agent. You can find this information out by checking a book called the Corporation Index in the small claims office located in the Judicial Center or by calling the Corporate Search Department of the Illinois Secretary of State at (312) 793-3380.
Remember that often times people are employees of someone else, another person or a corporation, and it may be that the employer is the one responsible for your claim. So, always be sure to sue the right party.
Where do I file the complaint and how much does it cost?
You must file the Complaint with the Clerk of the Circuit court - Civil Division located on the first floor of the Judicial Building, 505 N. County Farm Road in Wheaton, Illinois. If you are suing for under $250.00, the filing fee is $115. For suits between $250.00 and less than $1,000.00 the filing fee is $140. Over $1,000.00 and up to $2,500.00 the fee is $150. $2,501.00 to $4,999.99 the filing fee is $200. From $5,000.00 to $10,000.00, the fee is $250. (Note that fees are set by the court and are subject to change without notice.) If the defendant resides or is located within the State of Illinois, Certified Mail may be used for service. There is also a fee for service by certified mail for each person served. This is in addition to the filing fees.
If you win the suit, the Judge may award you the costs of bringing suit as well as the money you are seeking.
Before filing the Complaint, you should make sure that the defendant has money, income or property so your judgment will be collectible. Filing a Complaint against a defendant who is "Judgment-proof" is like throwing good money after bad. Also make sure that you sue the proper party. It is generally inexpensive to consult with an attorney before filing your complaint.
Our Illinois Constitution prohibits a Judge from putting a person in jail for failure to pay a debt. Therefore, if a person does not have money, income or property, there is no legal way for the Court to help you get the money owing to you. It is wise to make sure a Judgment will be collectible before paying the costs of a lawsuit.
Where should I file suit?
Generally speaking, every Complaint must be filed whether in the county where one of the defendant lives or in the county in which the transaction or some part of it took place.
What court date should I set?
When you file your suit, you should set a court date (called a Return Date) of not less than 14 nor more than 40 days after the issuance of the summons. It has been found that a court date 30 days from the filing of the suit is usually sufficient time for service upon the Defendant. Return dates are on any weekday Monday through Friday, except Legal Holidays, at 8:45 a.m. If the Defendant does not appear, it may be that he was not served with the Complaint and Summons. If this is the case, then you must prepare an Alias Summons, and in most cases it will now be necessary to have the Sheriff serve the alias summons. If the defendant disputes the claim, the case is set for trial on a future date. (The Plaintiff and or Plaintiff's attorney must always appear on the summons Return Date, regardless if service has been had or not. FAILURE TO APPEAR WILL RESULT IN THE CASE BEING DISMISSED FOR WANT OF PROSECUTION.)
The Rules of Court require that only cases where the summons is to be served by Certified Mail, that the Plaintiff must complete a sworn affidavit as to the last known address of the Defendant. This affidavit is located on the reverse side of the summons (white copy) that is retained by the Clerk in the court files.
What happens if the case is settled?
If you and the Defendant reach an agreement as to how much he/she is going to pay and how much you are going to accept, that is called a settlement. If you receive your settlement money before the court date, please notify the Clerk in Person or by mail, informing him that the case has been settled and asking that the case be dismissed. If the case has been settled, but you have not received your money, you should go to Court and ask the Judge to continue the case until you have received your money. After receiving your money, you must notify the Court that you would like to have the case dismissed. This can be done either in person at the Clerk's office or by writing the Clerk and requesting that the case be dismissed.
What do I do for trial?
The most important thing you can do is to know the exact date and time for trial and be there on time. You should bring any papers, pictures or other physical objects that have something to do with your case and show them to the Judge. You may also bring witnesses to testify in support of your case. A WITNESS is someone who can help explain why you should win the case. Make sure that your witness shows up on the exact date and time for the trial. If the witness is necessary for your case and is reluctant in coming to Court, you may need a SUBPOENA. (This is an order of the Court commanding a person to appear and testify at the trial.) In order for a subpoena to be legal you must advance the witness fees of twenty dollars and mileage to and from the courthouse at the time of service on the witness.
If you fail to show up for the trial, you will lose the case. If there is some very good reason why you cannot appear, have someone personally appear for you before the Judge and request a continuance to another date.
What happens at trial?
A trial in Small Claims court is a simple and somewhat informal Court hearing where the Judge listens to both parties as well as their witnesses and examines any physical objects that they have brought and then decides the case. The PLAINTIFF and his witness go first, followed by the DEFENDANT and any witnesses he/she may have. If the DEFENDANT fails to appear for trial the Judge will award Judgment for the PLAINTIFF. If the PLAINTIFF fails to appear, his/her case will be dismissed. When testifying, try not to be nervous and speak slowly and loudly. The Judge may ask questions. If so, answer them as clearly and directly as you can.
Getting your money.
If you are the Plaintiff and the Judge decides in your favor, he/she can order the person you have sued to pay the money that is owed. The Judge's decision in the case is called a JUDGMENT. If the Court has awarded a judgment in your favor, you should ask the Defendant to pay you immediately. If the Defendant is not present, you should let him/her know that a judgment has been awarded and ask him/her to pay.
If the Defendant refuses to pay you the money you have won in judgment, you must begin collection proceedings against him/her, as neither the Court nor the Clerk will collect the money for you.
Collection proceedings may be by a WAGE DEDUCTION SUMMONS, if you know where the Defendant is employed; or by a NON-WAGE GARNISHMENT SUMMONS, if you know where the Defendant has his bank account. The parties to whom you direct the Wage Deduction Summons or Non-Wage Garnishment Summons must file a sworn answer. After this is filed with the Court Clerk, you must appear in Court and the court will then enter a judgment against the garnishee for the amount shown in the sworn return and give you a turn over order. A certified copy of this order should be sent to the garnishee for your monies. You may use this step as often as necessary for the collection of the total judgment awarded plus the additional costs.
If you do not know where the Defendant works, has bank accounts or owns property, you should have the Clerk issue a CITATION TO DISCOVER ASSETS. This requires the Defendant to appear in court where he/she is placed under oath and must answer questions by you concerning his/her employment, locations of his banking accounts and other sources of income, as well as property owned.
The Clerk of the Small Claims Court will assist you with the necessary forms for collection of a judgment. Any additional costs of collection can be added to the amount recoverable from the Defendant, but if the Defendant is truly without assets, you may just end up wasting additional money, so make sure before you file your COMPLAINT.
Once a judgment has been collected, a form called a RELEASE AND SATISFACTION OF JUDGMENT should be given by you to the Defendant for filing with the Circuit Court Clerk.
A judgment can be appealed by either party to the 2nd District Appellate Court in Elgin, Illinois.
At the time of filing a complaint, the PLAINTIFF must make a demand for a jury trial and decide if he/she wants the matter to be tried by a jury of six or a jury of twelve. If the PLAINTIFF does not file the demand at the time that the suit is commenced, the right to a jury trial is deemed waived. The DEFENDANT must at the time of filing his/her answer make a demand for jury trial, otherwise the DEFENDANT shall be deemed to have waived a jury trial. The party demanding a jury must pay $12.50 for a jury of six and $25.00 for a jury of twelve (705 ILCS 105/27.2 S). IT IS STRONGLY RECOMMENDED that no jury demand be made without first consulting an attorney, as it is a complex proceeding.
How do you respond to a small claims complaint?
If you have been sued in Small Claims Court, you and/or your attorney must appear on the return date set forth by the summons. (Note-your attorney must file a document with the Clerk called an appearance.) The court will hear the case on the return date or it may set the case for trial at a later date.
A defendant, if he/she desires a jury trial must at the time of filing an appearance, or no later than the date he/she is required to appear, make his/her demand for a jury trial and pay the statutory fee. This demand and payment of the fee is made at the Circuit Court Clerk's office.
Legal Terms and Definitions:
Plaintiff - means the party who initiates the lawsuit.
Defendant - is the party being sued.
Pro Se - is a Latin term meaning "for himself/herself" or "in his/her own behalf" pronounced pro say. When a Plaintiff files his case without a lawyer's assistance he is PRO SE.
Complaint - The Court document that is filed by the Plaintiff to initiate the lawsuit.
Summons - The Court document issued by the County Clerk, commanding the Defendant to file an appearance or appear in Court for trial.
Service - A summons issued by the Clerk of Small Claims is either served by Certified Mail (DuPage County) or by the County Sheriff and a return is made either by the return receipt from the U.S. Post Office or an endorsement on the summons by the Sheriff. Until a summons has had service, a Court does not have authority to hear the case.
Alias Summons - a second summons issued in a case, in which a return of service has been made and the Defendant was not found.
Citation to Discover Assets - a process issued by the Court Clerk, after judgment which requires the Defendant to reveal under oath the location, if any, of his/her bank accounts, property owned or name of employer.
Execution-an order to the Sheriff to sell property owned by the Defendant after judgment has been entered to satisfy the judgment.
Notice Of Motion - a written instrument sent by either the Plaintiff or Defendant, notifying the other party of a Court date in which you are requesting the Court to take some action. If sent by U.S. mail, the postmark must be 5 days from the Court date requested. If the NOTICE is served in person, it must be at least 2 days prior to the requested Court date. The original must be filed with the Circuit Clerk before the Court date. This notice does not have to be sent by Certified Mail.
Rules To Show Cause - this is an order by the Court, directing a party to appear before the Court on a certain day, to show the Court why he/she should not be held in contempt because of failure to comply with the Court's previous order.
Writ Of Attachment - is an order by the Court to the Sheriff, commanding him/her to take a person into custody for contempt of Court and directing him/her to hold the person until the day of Court or admitting him/her to bail for a future Court date.
Mittimus - a sentence of the Court against a party who has been found guilty of contempt of Court and ordering the Sheriff to hold the person in the County Jail.
Subpoena - a writ of the Court commanding a person to testify in a pending Court case. (Note-in order that a subpoena is valid, you must at the time of service deliver the statutory witness fees and mileage.)
A number of downloadable pamphlets are available from the Southern Illinois University web site regarding collection advice once a claim has been awarded. See their website.
If you need additional information, you can call the Circuit Court Clerk's Small Claims office at (630) 407-8802 or go to www.dupageco.org/CourtClerk/CourtForms.aspx. You may also check the current 18th Circuit Court Rules regarding Small Claims suits. If you need legal assistance you can contact the DuPage County Bar Association Lawyer Referral Service at (630) 653-9109.