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Small Claims

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1. Are there any types of cases that cannot be filed in Magistrate Court?

Certain types of cases cannot be filed in Magistrate Court, regardless of the amount in recovery being sought, such as, divorce and family matters and any case in which the Court would be called upon to decide who is the legal owner of real estate. Furthermore, the Magistrate Court cannot issue an injunction, which is an order directing a party to take some action such as repairing or returning property.

2. Can I electronically file my case in the Magistrate Court?

The Magistrate Court of Fulton County is also referred to as small claims court. You can electronically file a claim when you are seeking $15,000.00 or less. If your claim exceeds $15,000.00 principal, the Magistrate Court does not have jurisdiction (the legal authority) to hear your case, and it must be filed in another court; such as, State Court or Superior Court. This limit applies to both the claim of the Plaintiff and any counterclaim of the Defendant. Interest and court costs do not affect the jurisdictional amount.

3. Can the defendant file a late answer?

On the thirty-first day after service on the defendant, the case goes into default. However, the defendant has additional fifteen (15) days to open the default by filing a late answer and paying all court costs along with the answer. No Answer may be filed beyond the forty-fifth day following service.

4. How do I electronically file my case?

To start the process of electronic filing a small claims case, you must first fill out a Statement of Claim Form. On this form, you will enter the name and address of the person or corporation you are suing, state the exact amount of money you are suing for, and explain why you are suing. You may represent yourself, act as an agent for your corporation, or you may sue on behalf of a minor should you be the guardian. However, you cannot represent someone else if you are not an attorney. Remember that you must sue a corporation in the county where it is doing business or where it is incorporated. You may also sue a corporation in the county where the registered agent is located. (The registered agent is the party that should be served for the corporation.)

5. How does one appeal a judgment?

If either party is dissatisfied with the judgment, that party may appeal (request a review of the judgment by a higher court). Either the state court or the superior court in the county will hear the appeal, and either party may request a jury trial. Appeals must be made within 30 days from the judge's decision. The court that hears the appeal will charge a filing fee.

6. How does one collect the award?

In many cases collecting the court award is more difficult than proving the case in court. A judgment granting the plaintiff an award gives the plaintiff the right to collect the money damages from the defendant, but the plaintiff is responsible for actually collecting the award. The court cannot, and will not, collect awards for any party.

If the defendant is unable to make full payment immediately, the plaintiff may ask the court at the hearing to order a payment plan. The plaintiff must pay the clerical and accounting costs of such payment plan, which costs are not to exceed 10 percent of each payment made. If the defendant is unwilling to pay, the plaintiff may: 

• Place a lien on the defendant's property, giving the plaintiff the right to sell the defendant's property to collect the money award. The clerk of the court, when asked by the plaintiff, can place a lien on the defendant's property. A small fee is charged to place a lien.
• Garnish the employer or bank account of the defendant in order to seize the defendant's wages or bank deposits. The garnishment process allows the plaintiff to collect installment payments on the debt the defendant owes. The plaintiff must file a separate garnishment action and pay a filing fee.
  
  If you do not know the name of the defendant's bank or the location of other assets, you can file a post-judgment interrogatory. Mail the form, which can be obtained from the clerk of the magistrate court, to the defendant, who must respond under oath within 30 days. Note that the defendant may close the bank account when advised of the pending garnishment, and then you would need to obtain information about any new account.
• Hire a collection agency to recover the money damages owed. These services can be costly and are usually based on a percentage of the money collected from the defendant.

7. How does one prepare for the hearing?

Before the hearing date, both parties should: 

• Collect all documents that would help to prove their case. Make extra copies for the judge and the other party.
• Contact any witnesses who have agreed to testify and inform them of the hearing date.
• Subpoena documents or summon witnesses to appear in court, if needed. A subpoena is a command to appear before the judge in order to give testimony or produce evidence. A subpoena can be obtained from the clerk of the magistrate court.

8. How does the defendant know that he or she is being sued?

The Marshal, the Sheriff or any certified process server will serve the defendant(s) a copy of the complaint and summons filed with the court. These papers will inform the defendant of the nature of the suit. The defendant has thirty (30) days from the date that he or she was served with the complaint in which to answer the complaint. If the defendant fails to file an answer to the complaint within thirty (30) days, the law provides the defendant an additional fifteen (15) days in which to file an answer by paying all court costs along with the answer (totaling 45 days). If the defendant answers the claim, the Clerk will notify all parties and their attorneys of the trial date by regular U.S. mail.

9. How does the plaintiff know that an answer has been filed?

The defendant must serve a copy of the Answer on the Plaintiff. Either personal delivery or first class U.S. mail may be used to file an Answer and all subsequent pleadings (court filings).

10. Is there a cost to filing an answer or a counterclaim?

No. The plaintiff pays court costs when the case is filed. However, the defendant may be ordered to pay these costs to the plaintiff if the Plaintiff wins his or her case.

11. May I reschedule a court date?

If one of the parties is seeking a continuance less than seven days prior to the court date, then it is the requesting litigant's responsibility to contact the opposing party(s) to seek mutual agreement to the reset; however, if the opposing party(s) objects then the requesting party can submit a written request to the court. In some circumstances, the requesting party may have to appear in open court to request a continuance.

12. The party who sued me actually owes me money. What can I do?

Along with your answer, you can file what is called a counterclaim, which is essentially, a Statement of Claim filed by the defendant against the plaintiff. If your counterclaim exceeds the jurisdictional limits of the Magistrate Court, the case will be transferred to a court that has proper jurisdiction. Usually the entire case will be transferred. However, there may be some cases where the plaintiff's claim will remain in Magistrate Court and the defendant's counterclaim will be transferred separately.

13. What do I bring to court?

You should bring all persons who have direct knowledge of the facts related to your case and any documents, photographs, repair bills, receipts, samples, or other physical evidence which you feel would help the Court better understand your case.

14. What happens after the defendant is served with the Statement of Claim?

The defendant has thirty (30) days from the date of service to file an answer with the Court. The day after the date of service is counted as day one. If the thirtieth (30th) day falls on a day when the Court is closed (a weekend or legal holiday), then the answer is due on the next day the Court is open. What happens after the defendant is served with the Statement of Claim? The defendant has thirty (30) days from the date of service to file an answer with the Court. The day after the date of service is counted as day one. If the thirtieth (30th) day falls on a day when the Court is closed (a weekend or legal holiday), then the answer is due on the next day the Court is open.

15. What happens if I file a case in the wrong court?

If you file a case in Magistrate Court over which the Court does not have jurisdiction or where venue is improper, the case will be transferred to a court that does have jurisdiction. An order will be entered transferring the case to the appropriate court. The order may contain a requirement that you pay a transfer fee within twenty (20) days.

16. What is a default judgment?

If the defendant fails to answer the plaintiff's claims or fails to appear at the hearing, the judge may, upon the plaintiff's request, hear and decide the case without hearing the defendant's side. This is called a default judgment. If the judge grants a default judgment, the plaintiff is entitled to the amount of money damages specified in the suit, plus court costs. If the plaintiff is asking for any non-money damages (such as property), a separate hearing must be held to determine the dollar value of the damages. If the defendant doesn't file an answer to the claim within 30 days, the defendant shall be in default. However, after the expiration of the 30 days, the defendant has 15 days in which to "open the default" by filing an answer and paying court costs.

17. What is the procedure for the hearing?

Certain cases will be referred to mediation prior to a hearing before the judge. This allows the parties to try to settle the case without a hearing. Even if the parties agree to settle out of court, the plaintiff may ask the defendant to pay the court costs. If they cannot agree to settle, the judge will instruct both parties about courtroom procedure and hear the arguments presented by both sides.

The plaintiff and defendant may question or dispute each other's testimony during the hearing. When both parties have completed their presentations, the judge will make a decision. The judge may grant an award of monetary damages to the plaintiff, to the defendant or both.

The plaintiff must appear in court on the day of the hearing, or the judge may:

• Allow the defendant to present testimony and give a judgment, without hearing from the plaintiff.
• Postpone the case until a later date.
• Dismiss the case.

The defendant must appear in court on the day of the hearing, or the judge may grant a default judgment in favor of the plaintiff.

18. Where should I file my case?

You must file your case in the County in which the Defendant (the party you are suing) resides. This requirement is referred to as "venue."  All civil documents in Fulton County Magistrate Court are electronically filed at eFileGA.

Businesses - The type of business determines the proper venue for a business named as the defendant. For a sole proprietorship, the suit should be filed in the county in which the owner of the business resides. For a partnership, the suit should be filed in the county in which at least one of the owners resides. For a corporation, the suit should be filed in the county where the corporation has designated its registered office with the Secretary of State's Office.

Multiple Defendants - For multiple defendants, you can file your case in any County in which venue would be proper for at least one of the defendants, if they are jointly and severally liable.

19. Who may file a claim or have a claim filed against?

The party who electronically files a claim is referred to as the "Plaintiff." The party who is sued is referred to as the "Defendant." A claim must designate the proper Plaintiff(s) and Defendant(s). The determination of the proper party will depend on whether the party is a person or a business and how that business is set up. Failure to name the proper parties may result in an unsatisfactory judgment.

Individuals - If the party is a person, you should designate that party by his or her legal name.

Minors - If the party is a minor (under the age of 18), the proper party depends upon whether the minor is the Plaintiff or the Defendant. A minor may not be a Plaintiff directly, but must be sued through the minor's parent or legal guardian. Example: "John Doe, a minor, by Joe Doe, next best friend." A minor may be sued directly or through the minor's parent or legal guardian.

Businesses - If the party is a business, you must name the proper legal entity. The proper legal entity is determined by how the business is set up. You can contact the Georgia Secretary of State at (404) 656-2817 to get information on a corporation.

Sole Proprietorship - A sole proprietorship is a business owned by one person that is not in the form of a corporation. The person may or may not use a trade name in the operation of the business. In either case, the proper party is the individual owner. Example: "John Doe, individually and d/b/a John's Garage."

Partnership - A partnership is a business owned by two or more persons that is not in the form of a corporation. The proper parties are the actual partners. Example: "John Doe and Jane Doe, individually and d/b/a John's and Jane's Garage."

Corporation - A Corporation is a legal entity separate and distinct from its owners. The proper party is the legal name of the corporation. Example: "John's Garage, Inc." You can obtain information on a corporation from the Georgia Secretary of State by calling (404) 656-2817. You should determine the correct legal name of the corporation, the County in which its registered office is located, and the name and address of the Registered Agent.