How to Give Notice of Your Small Claims Suit via Mail - dummies

How to Give Notice of Your Small Claims Suit via Mail

By Judge Philip Straniere

Because small claims court is designed to keep litigation costs down, the most common method of giving notice to the defendant in small claims court is by mail. Mail is the cheapest method.

Interestingly, snail mail is the least-preferred method in almost all other courts because it lacks the certainty of all the other delivery methods. If mail service is not successful, the rules of small claims court authorize another method of personal service to be used.

In most small claims courts, the clerk does the mailing. The mailing is made by regular first class mail, certified mail return receipt requested, registered mail, priority mail, overnight mail, or by a combination. The rules or the clerk of your small claims court will tell you which method is used.

The mail service method authorized usually provides some mechanism so that the sender gets proof that the defendant actually received the papers. If the clerk does the mailing, you pay an additional fee to the court for the cost of the mailing. This fee is collected when you file your complaint and is usually included in the filing fee.

In all likelihood, the clerk will mail two notices to the defendant: one by regular mail and one by certified mail return receipt requested. If both notices are returned as undeliverable, you will have to look to getting a better address for mail service or try a different notification methods.

There’s one recurring problem with the commonly used service by certified mail return receipt: Often, if the letter is unclaimed or undelivered, the court doesn’t receive notice of the failure until after the scheduled trial date.

You may obtain a default judgment because the defendant never appeared. But, at some point, the defendant will find out about the judgment and try to get the case restored to the calendar for a hearing on the merits. Remember small claims court tries to give everyone their day in court so if the defendant can establish that she never got the mail notice, it’s likely to be restored.

If the court record shows that the mail was unclaimed, meaning the address was accurate and the defendant ignored the notice, rather than undeliverable, meaning the address was incorrect or the person you’re suing doesn’t live there, the court may allow you to go forward, feeling the defendant is trying to ignore the service of process.

If the court record shows that the address is accurate but the mailing was returned unclaimed, it usually means that the notice was received but ignored, and the court may decline the defendant’s request to schedule a new trial. Courts generally are not that sympathetic to litigants who are too busy to pick up or accept certified mail.

But in many small claims courts, no matter how long after you got the judgment, and no matter that the defendant chose not to respond to the service of process, the court may decide to put the case back on the court calendar for a trial on the merits, as it is the policy of most small claims courts to give all litigants their day in court.

If the mailing is returned as “moved, left no forwarding address,” then it’s obvious you won’t have a valid judgment because the defendant didn’t get notice. In this case, you can ask for a new court date or withdraw the case without prejudice and bring the case back when you locate a new address where you can serve the defendant.

If given the choice, go ahead and get the judgment. For one thing, maybe the defendant will just pay it when she receives notice of the judgment. Or the court may deny her application to restore the case. If the defendant tries to get a new trial date, you have current contact info, because she’s shown up in court to make the application, and maybe you can settle the case.

Worst-case scenario is you have to try the case again. But now that you have had the experience of trying a case, you’re familiar with court process and know what evidence the judge felt was important in awarding you the judgment, all of which gives you an advantage in court for the second go-around.

If you get a notice from the court that the defendant has filed an application to have the case restored to the calendar, don’t you ignore it. Show up on the court date of that application and be prepared and ready to go.

Often plaintiffs get a copy of the notice to restore the case and don’t appear on the return date because they are consenting to the restoration of the case for trial. Unfortunately in some courts, the judge will grant the defendant’s application to restore the case for that date and if you’re not there your case will be dismissed.

The better practice is to show up and, if you’re not ready, consent to the case being restored and ask the court for a new trial date.

There’s also the possible advantage that if you show up on the return date of the defendant’s application and you’re prepared but the defendant isn’t, the judge may deny the application and let the judgment stand.