Free Procedures and Instructions - Oregon

LINN COUNTY CIRCUIT COURT- SMALL CLAIMS DEPARTMENT PROCEDURES AND INSTRUCTIONS
PLEASE READ THESE INSTRUCTIONS CAREFU LLY. THE COURT CLERKS W ILL BE GLAD TO HELP YOU WITH PRO CEDURAL QUEST IONS, BUT WILL NOT BE ABLE TO GIVE YOU LEGAL ADVICE OR COMPLETE THE FORMS. TALK TO YOUR ATTORNEY FOR ANY LEGAL ADVICE. The purpose of the Small Claims Department is to decide certain civil disputes promptly and economically. Small claims proceedings are governed by Oregon Revised Statutes (ORS) 46.405 through 46.560. The hearings are informal. Unless the Court has given prior approval for an attorney to be present, all parties appear without an attorney. Forms for the proceedings are available in Room 107 of the Linn County Courthouse or online @ web address below. All forms must be printed legibly in ink or typed. FILIN G THE CLAIM: The party filing the claim is the P LAIN TIFF. The party that the claim is aga inst is the DEFENDANT. To initiate a case, the plaintiff must complete and file a Claim a nd Notice of Claim and pay the necessary fees. All claims for $750 or less must be filed in the Small Claims Department. A claim for more than $750 and up to $7500 m ay be filed in the Small Claims Department. Before filing the claim, the plaintiff must have made a bona fide effort to collect the claim from the defendant such as a written letter of demand. The Claim a nd Notice of Claim form must be sign ed in the presence of the court clerk or a n otary public. WHEN THE C LAIM MAY BE FILED IN LINN COUNT Y: At least one of the following requirements must be met: 1) the defendant resides in Linn County; 2) the alleged tort occurred in Linn County; 3) the defendant contracted to perform an obligation in Linn County. IDENTIFYING THE PA RTIES IN VOLVE D IN THE CLAIM : All parties must be identified correctly and all names m ust be spelled correctly: 1) ALL INDIVIDUALS must be listed by their prop er na me . For examp le, JAME S L S MIT H, SUSAN R. SMIT H, No parties are to be listed as Mr. and Mrs. Jam es Smith. 2) If a BUSINESS is involved and is not a corporation, the plaintiff must list the owner's name plus the name (d.b.a.-doing business as) of the business. For examp le, JAME S L S MIT H dba JIM'S AUTO REPAIR .. 3) If the business is a CORPORATION, the plaintiff must identify the business and provide the name and address of the corporation's registered agent. Fo r examp le, ABC LOAN INC., an Oregon Corp. (registered agent: Jam es Smith, 123 Happy Stree t, Albany, O R 97321). If you need assistance in the proper listing of a business, call the Corporation Commission in Salem at (503)986-2200 (5, 5) or via the interne t @ http://www.filinginoregon.com. 4) If a party is a PARTNERSHIP, the plaintiff must list the name of the partnership plus the name of each partner. For example, JAMES SMITH & WILLIAM JONES, dba SMITH & JONES, a Partnership. 5) If any party is under the age of 18 years or in the military service or mentally incapacitated, an attorney should be consulted prior to filing a claim. FEES REQUIRED AT FILING: At the time of filing, you must pay a filing fee (if the claim is $1500 or less, the fee = $47.50: if the claim exceeds $1500, the fee= $89.50). Make the che ck or money o rder payab le to "TH E STATE OF OR EG ON ." Upon receip t of your claim a nd filing fees, the Clerk will file the claim and issue the Notice of Claim . In some situations, the fees may be deferred; see the information at the bottom of the next page. NOTIFYING THE DEFENDANT ("Service of Process"-refer to ORCP 7): The Notice of Claim may be served by: 1) The Sheriff of the county in w hich the defendant resides. Sheriff service fees start at $28.* 2) A Private Process Server (service fees vary)* 3) Any competent person 18 years or older who is a resident of Oregon and who is neither a party to the action, nor an officer, director, em ployee, or attorney for an y party to the action. A prop er Proof o f Service m ust be filed w ith the court.* 4) Certified mail. Specify "Deliver to Addressee Only," return receipt requested (check with the Post Office for cost). Proof of service by certified mail is filed in the court by filing the green card, containing the defendant's own legible signature, attached to a copy of the claim.

*Note: If personal service is not performed on defendant, refer to ORCP 7 of the Oregon Revised Statutes for information as to completion of service by mailing notice to the defendant (form available at stationery/book sto res w ho sell legal form s an d through the cou rt.) If the Proof of Service is not returned to the court within 30 days of filing the claim, the court will take action to dismiss the case.

DEFENDANT'S RESPONSE: The defendant has 14 CALENDAR DAYS after being served to respond to the plaintiff's claim. (14 days from date of personal service or 14 days from date of mailing notice after substituted service.) If the defendant does not respond within the 14 days, the plaintiff may apply to the Small Claims Department (available with the Clerk of the Court) for
a DEFAULT JUDGMENT. Wh en the claim is filed, a Defendant's Answer form will be supplied by the court. Each defendant answering the complaint must sign the Answer form. The defendant may elect to: 1) Admit and pay th e claim: The defendant may settle the claim by paying to the plaintiff the amount of the claim plus the amount of the filing fees and service expense paid by the plaintiff, and mailing proof of payment to the court. If the claim is for the recovery of specific personal property, the defendant may settle the claim by delivering the property to the plaintiff and paying the plaintiff the amount of the filing fees and service expense paid by th e plaintiff and mailing pro of of delivery and payme nt to the court.

2) Deny the claim and demand a hearing: The defendant is required to pay a fee (in some situations the fee may be deferred--see below). If the am ount claim ed by p laintiff is $1500 or less, the fee is $44.50. If the amount claim ed by p laintiff excee ds $ 1500, the fee is $8 2.50. A cou rt date will be set by the court and the court will notify the parties of the date via mail. The hearings are informal. Unless the Court has given prior approval for an attorney to be present, all parties appear without an attorney. 3) Deny the claim , dem and a h earin g an d file a co unterclaim: If the amount claimed by plaintiff is $1500 or less, the fee is $44.50; if the amount claim ed exceeds $1500, the fee is $82 .50 (in som e situa tions th e fee may be deferred--see below). The counterclaim must involve the same matter as th e pla intiff's claim . If the counterclaim exceeds $7500, it m ust be accom panied by a m otion requ esting that the case be tran sferre d to the circuit court or the court will disregard the counterclaim. Upon filing the motion requesting transfer, the defendant shall pay to the clerk of the court the transfer fee required by ORS 46.570 (1)(c) and an amount equal to the difference between the fee paid by the defendant as required by ORS 46.570 (1)(a) and the fee required of a defendant by ORS 21.110. Upon filing a reply to the counterclaim, the plaintiff shall pay to the clerk of the court a n am ount equal to the difference between the fee paid by the plaintiff as required by OR S 46.570 (1)(a) and the fee req uired of a plaintiff by ORS 21.110. THE CASE WILL NO LONGER BE CONSIDERED A SMALL CLAIMS CASE AND WILL BE PROCESSED AS A CIVIL MATTER. 4) Deny the claim and d ema nd a jury trial: This choice can be made if the amount or value of the claim exceeds $750. Tthe defendant must pay $128 and deposit a jury fee of $116 (total $244). In some situations the fee may be waived or deferred--see below. The Court will notify the plaintiff by mail that within 20 days, the plaintiff must file a civil COMPLAINT with the Court and the case is processed as a civil matter (ORS 46.455, 46.465). The plain tiff's claim is no longer limited to the amount stated in the original claim, though it must involve the sam e controversy. If the defendant fails to do one of the above within 14 calendar days after receiving the Notice, then upon written request from the plain tiff, the Court may enter a DEFAULT JUDGMENT against the defendant for the amount claimed, filing fees, service expenses paid, plus a prevailing party fee of $85 (ORS 20.190). The form (REQUEST FOR JUDGMENT/NON MILITARY AFFIDAVIT) is included in this packet or available from the Small Claims Department or online. If no default judgment is requested by the plaintiff within 30 days of the date of service, the court will take action to dismiss the case. Hearing: If your case proceeds to a hearing, you must have ALL of your evidence ready at the hearing, witnesses, documents, photographs, business records, etc. You must also be prep ared to pro ve your costs (filing fees, service fees paid and any other a ssociated costs). **Linn County provides mediation on small claims cases. The med iation orientation scheduled by the court requires mandatory attendance by all parties, though actual participation in the mediation process is voluntary. Collection of Judgment: If a judgment is awarded and the losing party (judgment debtor) does not voluntarily make payment, the winning party (judgment creditor) , upon payment of the required fees, may do one or more of the following: Issue a Writ of Garnishment to the Sheriff's office or a bonded process server in order to obtain money or other property of the judgment debtor which is in the possession of a third party (e.g. debtor's emp loyer, bank, etc.). Issue a Writ of Execution to the Sheriff's office in order to seize property of the judgment debtor and to use the property toward the payment of the amount involved. File a TRANSCRIPT OF JUDGMENT in the circuit court to place a lien against the debtor's real property if the money judgment is greater than $10 and less than $3000. An attorney should be consulted if there are questions concerning which remedy is most appropriate. NOTE: A JUDGMENT IS THE FINAL DECISION OF THE C OURT. THERE IS NO APPEAL FROM A SMALL CLAIMS CASE. PAYMENTS ARE TO BE MADE TO THE JUDGMENT CREDITOR. THE COURT IS NOT A COLLECTION AGENCY AND WILL NOT SECURE PAYMENT FOR THE JUDGMENT CREDITOR. ONCE THE JUDGMENT HAS BEEN PAID, THE CREDITOR IS LEGALLY RESPONSIBLE FOR FILING A FULL SATISFACTION WITH THE COURT. IF THE CLAIM IS SETTLED PRIOR TO THE ENTRY OF JUDG MENT, THE PLAINTIFF MUST FILE A MOTION OF JUDGMENT OF DISMISSAL. THE FORM IS AVAILABLE FROM THE COURT.
For additional information you may call 1-800-452-4776 and ask for tape #7004. This is a TelLaw tape provided by the Oregon State BAR. FEE WAIVER AND DEFERRAL FORM: If you are financially unable to pay the fees, you may request a waiver or deferral of fees. A form is available at the Circuit Court Clerk's Office or online.

LINN COUNTY CIRCUIT COURT-SMALL CLAIMS DEPARTMENT 300 SW 4th AVE/PO BOX 1749 ALBANY, OR 97321 www.ojd.state.or.us/linn

Telephone (541)967-3845

Rev 2/08