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Present Affidavits in Place of Live Witnesses in Small Claims Court

What to Expect from a Small Claims Defendant

After the defendant is served, she should follow the directions on the summons and complaint, and either go to small claims court and file a written answer if that is the practice or appear in court on the return date in the summons and file an oral answer — her response to your complaint. Because you filed the complaint, you should know which procedure your small claims court uses.

Counterclaims: When the person you’re suing sues you

The defendant can file what’s called a counterclaim against you. In doing this, the defendant is essentially saying, “What! You’re suing me? I should be suing you!”

Counterclaims can arise from the same incident or transaction or from another incident or transaction between you and the defendant.

If the defendant files a counterclaim, your name and the defendant’s are reversed on the court documents. The defendant is called the plaintiff on the counterclaim and you’re the defendant on the counterclaim.

In some situations, you have to file a response to the counterclaim. Your answer is the equivalent of the defendant’s answer, but it’s called a reply. In your reply you may issue denials or affirmative defenses like the defendant did to your complaint.

Situations that often give rise to counterclaims include

  • Minor car accident: You’re involved in a fender-bender. You start your action first and claim the defendant was at fault — negligent, in legal terms — and that the defendant’s negligence caused property damage to your car. The defendant can file a counterclaim against you, alleging you were the person at fault and you caused damage to her car.

  • A contract lawsuit: The tenant who moved out of an apartment sues the landlord to get her security deposit back. The landlord may file a counterclaim alleging that the tenant still owes a month’s rent, or damaged the apartment in moving, or left the apartment so dirty that she had to hire people to clean and repaint and dispose of abandoned property.

    Suppose, however, that when the tenant sues the landlord for the return of the security deposit, the landlord doesn’t assert a claim arising from the tenancy, but instead says that a month before she loaned the tenant her car and the tenant damaged it.

    This, too, is a valid counterclaim because it involves the same parties. In this situation, the tenant would want to file a reply to the counterclaim, because the underlying issue is negligence arising from a different event and not the landlord-tenant relationship.

Sometimes, the defendant starts her own lawsuit against the plaintiff. This can happen when both people go to the courthouse to file shortly after the incident, and service of process hasn’t been made in the first filed suit.

If this occurs, either person or both should notify the court and make sure the cases are scheduled at the same time for what’s called a joint trial.

Counterclaims that exceed the court limits

The defendant can file a counterclaim for whatever amount she feels she is owed from the plaintiff. If the counterclaim is less than the monetary jurisdictional limits of the court, this is not a problem. The problem is if it is more than the jurisdictional limit of the court.

Let’s say a tenant sues to get back a security deposit of $3,000. The landlord files a counterclaim, asserting that she had to repaint the apartment, redo the floors, and buy new appliances. The bills total $6,000 and the jurisdiction of the small claims court in that state is only $5,000.

Can the defendant counter sue in small claims court? The not-so-straightforward answer is, “It depends.” It depends on the law in that particular state.

When the person you’re suing blames someone else: Third-party actions

You bring your claim against the defendant, but the defendant alleges that she is not responsible for the event but that some other person actually caused the problem. The defendant would file a third-party complaint against that person.

In some states, the defendant can do this when she files her written answer. In other states, you need permission from the judge to file a third-party action, because it will delay the current action by the plaintiff.

The defendant can also bring a separate action against the third party claiming the third party is responsible. You may not be part of that suit. The defendant in that case would be called the plaintiff and the third party a separate defendant.

  • You’re stopped at a traffic light when your car is rear-ended. You sue the owner and driver of the car that hit you, making that person the defendant in your lawsuit. The defendant asserts that she was also stopped at the light and the operator of car #3 hit her car and pushed it into yours. The defendant’s claim against car #3 is a third party claim.

Cross-claims: When defendants point fingers at each other

A cross-claim occurs when you sue two different people and each defendant claims the other person is responsible.

The following examples should help you make more sense of this practice:

  • Your neighbor decides to trim the dead branches off the tree that straddles your property line. She hires the A Tree No Longer Grows In Brooklyn ’Cause I Cut ’em All Down Tree Service to do the work. While trimming the tree, a branch or two fall onto your vegetable garden, turning your entire tomato crop into tomato paste.

    You sue both your neighbor for hiring an incompetent company and the tree trimming service for failing to perform the work properly. Your neighbor can file a cross-claim against the tree trimmer asserting that she didn’t do anything wrong and if she has to pay you, the tree trimming service should have to reimburse — or indemnify — her.

Remember, you sued both parties, and it’s up to you to prove they’re both responsible for your injuries and should pay your damages.

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