"A Guide to Small Claims Court"

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Chapter 2 - If You Are the Plaintiff -
How to File Your Claim.
 

   Where to Sue
   Choosing A Complaint Form
   How to Fill Out Complaint for Money Owed
   How to Fill Out The Summons and Assignment Card
   How to File the Lawsuit
   Getting the Legal Papers to the Defendant

 
To start a lawsuit, you mail or deliver a complaint and a summons to the Office of the Clerk of Superior Court at a county courthouse.  This part of the booklet 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 file 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 forms are:
 

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" form 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 suits your exact situation, you may write your own complaint.  Be sure to state what your claim is and include the type of information shown on the sample that follows.
 

.How to Fill Out Complaint for Money Owed FORM

Step 1. 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.

Step 2. 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 business, 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.  For more explanation of businesses as defendants, see the Appendix.

Step 3. List the name and address of your attorney, if you have one.  If you don’t have an attorney, leave this blank.

Step 4. List the county where you are bringing this lawsuit.

Step 5. 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."

Step 6. 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 line next to the box. Or you can check "other" and describe the purpose of your suit.

Step 7. Sign and date the complaint. If you have a lawyer, he or she may sign it.
  

FORM:  "Complaint for Money Owed"

How to Fill Out The Summons and Assignment Card

You must also fill out a summons, which is available from the clerk's office.  This notice of the lawsuit goes to each defendant.  [See the blank "Magistrate's Summons."]  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 (for more, see "Businesses As Defendants" in the Appendix).

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" (This NCR postcard-size form is available only from the Clerk of Superior Court).  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 $96 court cost* or file as an indigent, as explained in Chapter 1.

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 $30 service fee* for each defendant.  Sometimes, you pay this $30 fee directly to the sheriff; sometimes the clerk gives the forms to the sheriff and takes the fee for you.  If you filed as an indigent, you do not need to pay the $30 fee.
 

FORM:  "Magistrate Summons"
(back of form is used only by the sheriff)
 

FORM:  "Notice of Assignment/Service"
(This NCR postcard-size form is available only from the Clerk of Superior Court) 
 

When filing by mail, use either a money order or cashier's check.  Make separate checks for the $96 filing fee*, to the Clerk of Superior Court, and for the $30 service fee* for each defendant, to the sheriff of that county.  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.  Often, a clerk's office will take your papers and your $30 fee* over to the sheriff's office.  Sometimes, however, you must take the forms stamped by the clerk from the clerk's office to the sheriff's office. In either case, 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.
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* NOTE:  Fees effective July 1, 2011

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**Copyright May 1990, April 1994, February 1997, March 1998, June 2001, November 2003, October 2005, Legal Aid of North Carolina, Inc.**
 

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