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| Clerk of Courts - Small Claims - Instructions and Forms |
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This information is intended as a summary of basic procedures for Small Claims matters. Although you may choose to be represented by an attorney, it is not required. Should you choose to represent yourself, it is your responsibility to know the requirements of the law. The Clerk of Circuit Court, Court Commissioners and other court personnel are not authorized to provide legal advice. For the statutes governing Small Claims procedures, see Chapter 799 of the Wisconsin Statutes.
QUICK DEFINITIONS
INTRODUCTION A. A small claims action may be filed for a claim of $5,000 or less. Items that fall under small claims are: 1. Money 2. Eviction of Tenants 3. Earnest Money 4. Replevin (return of property) B. VENUE (Where to file) 1. For most claims, the proper county to file your lawsuit is: a. Where the claim arose; b. Where the subject property is located; c. Where the defendant resides or does substantial business. 2. If a case involves a consumer transaction, you can file in the county: a. Where customer lives; b. Where purchase was made; c. Where the collateral is located. It is your responsibility to review the facts of your case and to decide where to file your action. STARTING A SMALL CLAIMS CASE A. THE SUMMONS AND COMPLAINT 1. Both the summons and complaint form SC 500 must be filed to begin a lawsuit. The original of the summons and complaint must be filed with the Clerk of Circuit Court before a copy may be served on the defendant. It is the plaintiff’s responsibility to provide the Clerk of Courts office with at least three (3) copies of the summons and complaint. Initial Return Dates are held the first (1st) and third (3rd) Wednesdays of each month. You may choose your own date with certain restrictions. Your initial return date cannot be more than 30 days or less than 8 days from the date of service of the summons and complaint on the defendant. · For eviction actions, the defendant must be served at least five (5) days prior to the initial return date. · The restriction may be different for defendants residing outside of the state. Please see the statutes. · Be sure to allow adequate time to accomplish timely service when choosing your court date. It is usually recommended that you choose an initial return date at least three (3) weeks in the future. · On eviction matters, the plaintiff or their attorney must check the box on the summons directing the defendant to appear in addition to filing a written answer. 2. A case number will be assigned and your copies returned. It is the plaintiff’s responsibility to have the defendant personally served. B. SERVICE OF THE SUMMONS
1.
A copy of the summons and
complaint must be “personally served on” the defendant(s). Service
by mail is not authorized in · If you choose the sheriff to serve your papers, you will need to contact the Sheriffs Department in the county in which the defendant(s) resides or you may choose to hire a private process server. · If the defendant cannot be personally served, the plaintiff may either appear on the initial return date or send in a written request for adjournment to allow for service by publication. Plaintiff is required to file the affidavit of attempted service. · Publication is accomplished by placing a single notice in the legal section of the local newspaper and mailing a copy of the summons and complaint to the defendant’s last known address. Further instructions are available by selecting the link titled PUBLISHED SUMMONS. C. LETTER OF APPEARANCE AND AFFIDAVIT OF NON-MILITARY SERVICE 1. If the plaintiff does not wish to be present on the initial return date for a money or replevin judgment, the Clerk of Courts must receive a Letter of Appearance and Affidavit of Non-Military Service from the plaintiff no later than 12:00 noon the last business day prior to the initial return date. A sample of a letter of appearance format may be copied and is available by selecting the link titled LETTER OF APPEARANCE. · These rules do not apply to eviction matters (see section below marked Initial Return Dates for Evictions). Received means that the letter must be in the Clerk of Courts Office by the deadline specified; a postmark bearing the date that the letter was mailed is not sufficient to meet the requirements for filing a Letter of Appearance. 2. The plaintiff’s letter of appearance must state that he or she will not be in court on the initial return date and request judgment be entered if no answer is received from the defendant. If the Letter of Appearance is filed in compliance with this rule, the plaintiff is not required to appear in person on the initial return date. 3. If the Letter of Appearance is not filed in compliance with this rule and the plaintiff fails to appear on the initial return date, the case will be dismissed. 4. The Affidavit of Nonmilitary Service must be filed before a default judgment can be entered. If the defendant appears, Affidavit of Nonmilitary is not required. · Under Federal law, the court cannot enter default judgment against a defendant who is on active military duty. · If you are unsure as to whether the defendant is on active duty. You may contact the Department of Defense at http://www.dmdc.osd.mil/scra. You must provide a name and social security number. A birth date is also helpful, but it is not necessary. If you do not have the person’s social security number, you may submit your request in writing along with a self-addressed envelope to the following:
You may also submit your request by fax to 703-696-4156. The Wisconsin National Guard does not have a website for verifying active duty status. You may contact them at by calling the Army National Guard at 608-242-3406 and the Air National Guard at 608-242-3122.
D.
IF YOU ARE BEING SUED IN SMALL 1. To not contest the case - Admit. A judgment will then be entered against the defendant for the amount requested in the summons and complaint. (If you plan to admit to the claim, it is not necessary to appear at the initial return date.) 2. To contest the case by filing a written answer with the court no later than 12:00 noon the last business day prior to the initial return date or to appear on the return date to contest the claim – Deny. (Be sure to put the case number on your answer and supply a copy to the plaintiff or their attorney.) If more than one defendant, ALL defendants must sign the answer or supply their own answer. If this is not done, default judgment will be entered against the defendant that has not supplied the court with an answer. 3. The matter will then proceed to pre-trial conference and notices will be sent to all parties.
IF POSSIBLE, THE PARTIES SHOULD TRY TO
SETTLE THE CASE PRIOR TO THE THE FIRST HEARING A. APPEARANCES 1. All appearances shall be governed by Wis. Stat. 799.06(2) which states as follows: (2) a person may commence and prosecute or defend an action or proceeding under this chapter and may appear in his, her or its own proper person or by an attorney regularly authorized to practice in the courts of this state. Under this subsection, a person is considered to be acting in his, her or its own proper person if the appearance is by a full-time authorized employee of the person. An assignee of any cause of action under this chapter shall not appear by a full-time authorized employee, unless the employee is an attorney regularly authorized to practice in the courts of this state. Any individual who does not meet the definition above cannot "appear" for any "person" other than him or herself. IF THE PLAINTIFF FILES A LETTER OF APPEARANCE AND THE DEFENDANT FILES A WRITTEN ANSWER OR DOES NOT WISH TO CONTEST THE MATTER, NEITHER PARTY NEEDS TO APPEAR AT THE FIRST HEARING. (This pertains only for money judgments and replevin.) B. DEFAULT JUDGMENTS 1. If the defendant fails to answer by mail prior to the court date or in person at the court date, a default judgment will be entered against the Defendant. 2. Once the judgment is granted, it will be entered on the court record by the deputy clerk and a “Notice of Entry of Judgment” will be mailed to each party at their last known address. The notice will state the amount of the judgment, including statutory costs. (see below) 3. Costs – State law directs the Clerk of Circuit Court to compute costs and insert them in the judgment in favor of the successful party as follows: filing fee, service fee, statutory attorney fees, and any other costs which may be allowed by the court. (see below) 4. A financial disclosure will also be sent to the defendant(s). If the judgment cannot be paid within the next 15 days, the defendant(s) are to complete the financial disclosure and provide it to the plaintiff or their attorney. If this is not done, the plaintiff has the right to begin a Motion for Contempt. (see below) C. DISMISSAL 1. If the Plaintiff fails to appear either in person or by letter at the initial return date, the case will be dismissed. D. CONTESTED 1. The defendant who appears on the initial return date to contest the claim will be granted an additional two weeks to file a written answer. The answer should be a short, simple and concise written statement as to why the defendant is denying the allegations contained in the plaintiff's complaint. Failure to file the written answer within that time limit will result in a default judgment without further written notice from the court. 2. Upon receipt of a written answer, the small claims clerk will mail the parties notice of the mandatory pre-trial date with the Court Commissioner. The notice and order to appear will have additional instructions and information regarding the pre-trial conference. · If the matter is not resolved at the pre-trial conference, it will be scheduled for a court trial before a Circuit Court Judge, who will weigh the evidence presented and render a decision. The court trial will not take place on the same date as the pre-trial conference. E. INITIAL RETURN DATES FOR EVICTIONS 1. This is a mandatory appearance by all parties.
2. If the matter is contested, a Court Commissioner will be available to conduct a pre-trial conference at the initial return date on eviction matters only. If a resolution does not occur the matter will be set for an eviction hearing before a Circuit Court Judge at a later date. Any inquires regarding appearances made on the initial return dates will be available on the internet access as soon as possible at http://wicourts.gov . Please allow the Clerk of Circuit Court's staff time to post this information. Numerous phone calls regarding the status of your case will only delay this process. CONTESTED MATTERS A. PRE-TRIAL CONFERENCE 1. All parties are to attend a mandatory pre-trial conference. The Court Commissioner will preside over this proceeding with the goal of assisting the parties to entering into a stipulation and order. 2. If the parties do not come to an agreement, the matter moves forward to court trial unless a jury trial has previously been requested. B. TRIAL 1. A Circuit Court Judge will preside over this proceeding but can be before a jury. The judge will decide the case based on the evidence presented. AFTER THE TRIAL A. REIMBURSEMENT OF COSTS 1. The prevailing party is entitled to be paid filing fees, out-of-pocket court costs and statutory attorneys’ fees, if an attorney participated. · Lost wages, transportation expenses, and any costs related to coming to court are not allowed. 2. Costs -- State law directs the Clerk of Circuit Court to compute costs and insert them in the judgment in favor of the successful party as follows: filling fee, service fee, statutory attorney fees, witness fees, jury fee and any other costs which may be allowed by the court. B. FINANCIAL DISCLOSURE 1. State law provides that if a person obtains a judgment for money he or she is entitled to receive information regarding the financial status of the unsuccessful party within 15 days after entry of judgment. A form called "Order for Financial Disclosure and Financial Disclosure of Assets" is sent by the deputy clerk to the unsuccessful party when judgment is granted. *Failure of the judgment debtor (unsuccessful party) to provide this information in writing to the judgment creditor (successful party) is punishable by court-imposed sanctions. 2. The judgment creditor may compel the judgment debtor to appear in court and disclose this information by filing a "Petition and Order for Hearing on Contempt". This form SC-507 is available on-line. Further instructions are available by selecting the link titled HEARING ON CONTEMPT. If the judgment debtor fails to appear at this hearing, the court may issue a warrant for arrest. C. COLLECTION 1. A court judgment in your favor does not automatically result in the payment of money. If the debtor does not pay voluntarily, you must initiate collection of a judgment. Further court procedures are necessary. 2. The primary methods available to small claims litigants for enforcing the payment of judgments are: Garnishment and Writs of Execution. Garnishment is a method of collection that allows the judgment creditor to obtain monies owed by others to the judgment debtor, usually by attaching the judgment debtor's earnings or bank accounts. (See ss814 Wis. Stats.)
3. A judgment creditor may
ask the court for a Writ of Execution directing the sheriff to
seize specific, non-exempt personal or real property belonging to the
judgment debtor for the purpose of satisfying a judgment. You may want
to obtain professional legal advice to decide if a Writ of Execution is
appropriate for your case (See ss815
D. DOCKETING THE JUDGMENT 1. Once a judgment has been obtained, the judgment creditor may "docket" the judgment by rendering a $5.00 docket fee to the Clerk of Courts office. When a judgment is docketed, the effect is to place a lien on any real estate owned by the judgment debtor in the County where it is docketed for a period of 10 years. However, it is not required that a judgment be docketed to attempt collection from the judgment debtor. REOPENING JUDGMENTS A. REQUEST MAY BE MADE BY EITHER PARTY 1. The court may reopen a default judgment if it finds that "good cause exists", that is, there was a good reason for the plaintiff OR defendant's failure to appear in court. To reopen the judgment, you must file a Notice of Motion SC-515 with the court and serve a copy on the opposing party in any of the ways allowed for service of the summons and complaint. 2. The motion must outline your reasons, or "good cause", for having the judgment reopened. This paperwork may be obtained on-line. Please contact the clerk in order to obtain a hearing date for the motion. If the court grants your motion and reopens the judgment, you may have to pay court costs to the other party. LEGAL ASSISTANCE The Clerk of Circuit Court, Court Commissioners and other court personnel are not authorized to provide legal advise, should you need assistance you may contact: State Bar Lawyer Referral and Information Service 1-800-362-9082 FEE SCHEDULE Action, to Commence $94.50 Docketing Fee $ 5.00 Garnishment File Fee $92.50 (Earnings - fee to employer) $15.00 (Non-earnings - fee to institution) $ 3.00 Jury Demand $89.00 Service Fee set by process server |
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