Ask for a Statement of Small Claim and Notice of Trial form from the small claims court clerk of the appropriate courthouse in person, through mail, or over the telephone. A directory of small claims courts with their addresses and telephone numbers can be found in the brochure, `Consumer’s Guide to Small Claims Court.` Some clerks will mail the form to you for free while others will ask you to send a self-addressed, stamped envelope.
• Read the back of the form carefully. It gives instructions on how to file a small claim and directions for the plaintiff and the defendant. The instructions are pretty clear and straightforward. 18 common questions with their answers are listed on the back of the form.
• Fill out the form. If you are having a lot of trouble completing the form, do not be afraid to ask the clerk for help. They can help you if you need it. Print very neatly in permanent ink or type. If your handwriting is hard to read, ask a relative or friend to fill it out for you. A clean, legible form might not guarantee you a favorable judgment, but a messy form will not give a good impression. Don’t forget to press down firmly when writing because you are making carbon copies. It might be helpful to do a rough draft of what you plan to write down and then copy the information from your draft onto the actual form.
• In Part 1 of the form, write down the court in which you are bringing your small claims case. You can only file a claim at a court in the district where you or the defendant reside, work, or have a business. In landlord-tenant disputes, you can also bring a claim in the district where the apartment is located. Plaintiffs are strongly advised to sue in the district court of the defendant’s place of residence, employment, or business because it is easier to enforce a decision and collect judgment. This way, you can avoid:
1) paying a new filing fee if the defendant refuses to come before a court not in his district.
2) having to file for supplementary process (getting the money you win in court) in the court where the defendant is actually located if you win the claim and the defendant refuses to pay.
3) having a hard time getting a capias (a court order to force the defendant to appear before a judge to tell why he is not paying) if it becomes necessary to collect a judgment. This will be much simpler to arrange if the claim was filed in the defendant’s district court.
• Part 2 asks for the name of the plaintiff, or the person who is suing. Write down your name and address. Give a phone number at which you can be reached by the court during the day. Under Part 2, there is a section for `Plaintiff’s Attorney (if any).` Remember that small claims court is informal and lawyers are not at all necessary, so just leave the section blank if you do not have an attorney.
• Part 3 of the form asks for information about the defendant, the person being sued.
• For an individually owned business (i.e., a business which is not a corporation), write down both the owner and the name of the business. You can get the owner’s name from the City or Town Clerk where the company is located.
• For partnerships, list the names of all partners.
• For corporations, write down the name of the corporation. Do not list the name of particular individuals unless you are suing them directly. You must have the exact legal name of the corporation, which you can obtain from the Corporations Division of the Secretary of the Commonwealth, One Ashburton Place, 17th floor, Boston, MA 02108. The phone number for that office is (617) 727-9640.
• In the case of damage caused by motor vehicles, name the registered owner, not the driver.
• For a trust, name the title of the trust and trustee or principal officer.
• In Part 4 of the form, state the amount for which you are suing. The limit for the claim is $7000, but there is no maximum in cases involving property damage caused by a motor vehicle. In addition, you can sue for double or treble damages plus court costs and attorney fees in certain consumer and landlord-tenant cases.
If your claim is slightly over $7000, you can avoid going to a formal court and hiring an attorney by suing for only $7000. You cannot divide a large claim into two smaller ones. You can, however, sue the same person for two different claims at once. But, you may have to explain to the clerk-magistrate that these claims are different from each other, that they are not just one general case you separated into two so you can collect more judgment. The cases must not stem from the same cause. If the action is for double or treble damages, list the amount owed (which must be $7000 or less) on the line given, but clearly state in the description of your claim below that you are suing for double or treble damages.
In deciding for how much you are going to sue, claim (within reasonable limits) more than you expect to get. If you win, a judge can only award you up to the amount that you sued for, and no more.
• In cases involving contracts, sue for the difference between what you were owed and what you were paid. If the case involves a loan with interest, include interest in the amount that you have been asking for.
• For property damage cases, sue for the amount needed to repair your property. You cannot sue for more than what the property was originally worth.
• For used clothing, subtract from the original price the amount of depreciation. For example, if a coat is supposed to last 5 years and you’ve been wearing it for 2 years, subtract 2-years’ worth from its original price.
• For personal injury cases, consider medical costs you had to pay for yourself, loss of pay or vacation time, pain and suffering, and damage to property. The costs you sue for must be monetary in nature, so an example of what you cannot sue for is emotional trauma.
On the line for `court costs,` list the amount of the filing fee:
• For claims up to and including $500, the filing fee is 30.
• For claims from over $500 to $2000, the filing fee is $40.
The filing fee covers the entry fee and surcharge, plus the cost of sending a copy of the Statement of Claim and Notice form to the defendant.
If there is more than one defendant, there are no additional filing fees. Similarly, if there are multiple plaintiffs filing together and seeking joint relief, there is also only a single filing fee. If it happens that multiple plaintiffs are separately filing the same claim at the same time, then they may be asked to divide the single fee; otherwise, the first plaintiff to file must pay the whole amount.
If you cannot pay the filing fee, you may have your fee waived by the clerk or the court under the Indigent Court Costs Law. You must have your affidavit of indigency approved before you can apply for a fee waiver. How do you know if you should apply for the affidavit of indigency? An indigent is defined as follows:
• a person who receives public assistance under the Massachusetts Aid to Families with Dependent Children, General Relief, or Veteran’s Benefits programs, or receives assistance under Title XVI of the Social Security Act, or the Medicaid Program, 42 USC 1396, et seq., or
• a person whose income, after taxes, is 125% or less of the current poverty line set yearly by the Community Services Administration pursuant to § 625 of the Economic Opportunity Act, as amended, or
• a person who cannot afford to pay the fees and costs [not including attorney's fees] of the proceeding in which he is involved, or cannot do so without sacrificing the necessities of life, including food, shelter, and clothing.
If you meet one of the above requirements, you can file with the clerk an affidavit of indigency and ask for waiver, substitution or payment of the commonwealth of fees and costs. If you file the affidavit of indigency with your claim, the clerk must continue with filing the claim. This filing continues until:
• the affidavit has been granted or
• the affidavit has been denied, and you must pay the filing fee within 5 days of the affidavit being turned down (or whatever time the court allows) or
• if your affidavit has been turned down, you may appeal the rejection of the affidavit with the clerk within 7 days. If it is turned down again, you have 5 days to pay the filing fee.
The clerk can grant a fee waiver immediately without a hearing if your affidavit looks regular and complete. Otherwise, two things can happen after the clerk brings your affidavit to a justice or judge:
• the justice or judge will grant your request once they have examined your affidavit, or
• a hearing will be held in which the court will decide whether you satisfy the conditions of indigency.
You cannot be denied any fee waivers without first having a hearing. If you are found indigent by the court, then you will not be denied any further waivers of fees which are `reasonably necessary` to assure an effective claim.
You must repay the fees waived if you are awarded over three times the fees in your small claims proceedings.
Briefly describe your claim. Give the date of the incident or the date the money was owed. Keep it short and clear. State the facts in simple terms so that the defendant and the judge/magistrate will easily understand your claim. Make a rough draft (or several!) of what you will write. Revise and edit it carefully for spelling and grammatical mistakes. Ask friends or family to read it for you. As many clerk-magistrates have said, the defendant will have his day in court, so don’t spill your guts out on this small space. Do not be over-emotional and flowery. This will damage your case. Do not attach any evidence to your form.
Be sure to sign your name in the space marked, `Signature of Plaintiff.`
• In Part 5 of the form, indicate whether you are willing to try to settle your claim out of court through mediation or arbitration (see the chapter on “Mediation and Arbitration” to decide whether mediation is a good choice for your case).
• Part 6 of the form is the military affidavit. If you do not know whether or not the defendant is in the military, draw a line through the space and do not sign the affidavit. If the defendant is in the military and doesn’t show up for court, you may then obtain a judgment only by a judge’s special order. But if you do know for sure whether or not the defendant is in the military, check the appropriate box and sign in the space provided.
• Return all four copies of the Statement of Small Claims and Notice of Trial with all carbon papers intact. Include a check or money order for the filing fee. Do not use personal checks unless they are from an attorney or company. To whom you make the check payable is different from court to court, so check with the clerk first. But, as an example, write the check out to `Boston Municipal Court, Small Claims Division, Room 393-Old Court House, Boston, MA 02108.` You can either personally bring or mail the form and money order/check. If the case is an emergency, file a motion for speedy trial. If you mail your form, action does not start until the clerk actually receives the form.
• The clerk must give you a copy of the Statement of Claim and Notice form upon filing. The copy must show the date and time of trial. You will also get a docket number; use this number to identify your case when you contact the clerk.
• If you cannot appear on the date of the trial, you must apply in writing (unless the court allows an oral application) for the trial to be continued to another date. You must have the agreement of all parties or show good cause (i.e., give a good reason).
• The clerk must send a copy of the Statement of Claim and Notice Form to the defendant by certified mail (return receipt requested) and separately by first class mail. The defendant will be assumed to have notice as long as the first class mail is not returned to the court undelivered, even if the certified mail is returned unclaimed or refused. If the first class mail is undelivered, then the court may make special arrangements to send the form to the defendant.
New Limit and FeesATTN: The small claims limit has been raised to $7000 and filing fees are now: $40 for claims up to $500 $50 for claims up to $2000 $100 for claims up to $5000 $150 for claims up to $7000
DisclaimerWe are not lawyers, or even law students; rather, we are college undergraduates who have read up on small claims law in Massachusetts. The information we are able to provide you is simply that – information – and should not be considered “legal advice”, which you can only receive from a lawyer.