What To Do When You Have Been Sued in Small Claims Court
If you have just been served with (given a copy of) a Summons and a Complaint to appear in Small Claims Court, you are now the defendant in a lawsuit. Small Claims Court is part of the District Court of Maryland.
- The Summons is the court document notifying you that a lawsuit has been filed against you. The Summons has the time and place of the hearing.
- The Complaint is the document that the Plaintiff filed to begin the lawsuit.
- The Plaintiff is the person filing the lawsuit.
- The Defendant is the person or business that the Plaintiff is alleging owes them money.
- This glossary of court terms may be helpful to review.
Small Claims are different from regular civil cases in the District Court. The rules and procedures in Small Claims Court are simpler and more informal. If you have been sued as the defendant in a regular civil case in the District Court, this article may still be helpful, but be aware that there are differences. Learn about the difference between large claims and small claims.
What to do when you have sued?
- Read everything very carefully.
- Consider your options.
- Decide on your strategy.
Read the Summons and the Complaint very carefully.
- Is everything accurate? If not, write down what you think is correct and what you think is incorrect.
- Write down your side of the story, point by point.
- Write down what proof you have for your side of the story, point by point.
- Are there differences between the Plaintiff’s story of what happened and yours? Are the differences important?
- Figure out how to answer each statement that the Plaintiff makes. Generally, you will answer the statements with a yes or no.
- Think about whether it would be fair if you paid the Plaintiff something. If you think that it would be fair to pay something, is it as much as the other side wants?
What are the deadlines?
- When must you respond?
- You must file a “Notice of Intention to Defend” within 15 days of being served the Summons and Complaint.
- In some cases, you have 60 days to respond (e.g., if you are out of state or own a business with a resident agent).
Did the Plaintiff ask for a “judgment by affidavit”?
- Check the Complaint to see if the Plaintiff asked for a judgment by affidavit.
- A request for an affidavit judgment means that the Plaintiff has documents that the Plaintiff believes prove that a Defendant owes the creditor a specific amount of money. The Plaintiff is asking the judge to make a decision without a trial.
- If you do not file a Notice of Intention to Defend and do not show up at the hearing, the court can enter a judgment against you without a hearing.
- Learn about affidavit judgments.
Read the Rule: Maryland Rule 3-307
Below are possible options. You may have more options, depending on the specific facts and circumstances of your situation.
- Try to Reach a Settlement Without Going to Court
- Raise Technical (Procedural) Issues
- Prepare Your Case and Defend Yourself
- File a Counterclaim, Cross-Claim, or Joinder of Additional Parties
- Propose Making Installment Payments
- Do Nothing
- Do you owe money?
- Does the other side have a good case?
- Is there room to compromise?
Negotiate - Talk directly with the other side without the involvement of a neutral third party
- Usually there is some acceptable middle ground.
- Remember that defending your case in court will cost you time off from work, possibly other costs, and maybe attorney’s fees. The same is true for the other side.
- Even if you and the other side tried negotiating in the past, still consider talking to your opponent to see what might be worked out at this point.
Mediate - Negotiate with the intervention of a neutral third person who assists in resolving the dispute.
- The District Court's Alternative Dispute Resolution (ADR) Office provides mediation and settlement conferences for civil cases pending in many District Court locations.
- These ADR services are offered at no charge, either on the day of trial or before the trial date, through the District Court ADR Program.
- Mediation offers the chance to deal with the emotional issues raised by the dispute. Do not let the word “emotional” throw you. Mediation can be particularly important if you have an ongoing relationship with the other side (e.g., family, friend, or neighbor).
- Mediation often results in reducing the initial amount claimed by the other side. You cannot count on reducing the amount if you go to court, especially if your defense is not particularly strong.
- In mediation, you may successfully reach a compromise that saves both of you the time, trouble, and expense of going to court.
Do not be fooled into thinking that you will be able to “split the difference,” that is, agree to reduce the money claim by half. The fact that it has gone this far means that the other side thinks they have a good case. If you are able to reach an agreement to reduce the claim by 20% to 30%, many people would consider this a victory. Of course, if you believe that the other side is completely wrong, and you owe nothing, this option may not be for you.
TIP- If you reach an agreement through your negotiation or mediation, ask the judge to enter the agreement as part of the court order. Just in case the other side does not live up to their side of the agreement, it is easier to enforce a judgment than a private agreement.
Raising a procedural issue may delay the hearing but, it is rarely a winning strategy. Below are some examples.
Improper Notice - The Plaintiff must make every effort to notify you about the lawsuit by making sure that you receive a copy of the Complaint and Summons and other papers filed with the court.
- Were you served properly? For example, if the notice was left with someone else in your apartment building, that would be improper.
- If you were not served properly, you can ask for the case to be dismissed by filing a pre-trial request. You can also make this request at the hearing.
- You can ask to have the hearing postponed to allow you time to prepare.
Wrong Court – Usually the clerks will screen out cases that should have been filed in Circuit Court rather than District Court, but something may have happened that leads you to believe that Circuit Court is the correct place for the case to be heard. You can request that the case be transferred to Circuit Court. Note that there are some cases that can be heard in either the Circuit Court or the District Court (called “concurrent jurisdiction”). Learn about the difference between large claims and small claims.
No Jurisdiction - If you do not live in Maryland or have a business here, it may not be appropriate to have a small claims case filed in Maryland. There are exceptions to this:
- You were served in Maryland and the dispute occurred here OR
- You had a car accident here OR
- The case involves real estate that you own here.
Wrong Venue - If the plaintiff filed in Dorchester County, but you live and have a business in Talbot County where the dispute arose, the lawsuit may have been filed at the wrong court location. If a suit is brought in the wrong county, it can be transferred or dismissed.
- Cases will be transferred for the convenience of the parties or “in the interests of justice”.
- If you both appear for the hearing, the case can be heard, even if the county is not the correct one.
Read the Rule: Md. Rule 3-326
Demand for Proof - You have the right to demand proof that the other side has done certain things correctly. For example, if the plaintiff sued you in your name and should have sued your business, you can make a “demand for proof.” Talk to an attorney before raising this type of procedural challenge.
- You must raise this type of issue before the trial is held.
- This tactic is most likely helpful only to delay the trial, not to make the case disappear.
- Make clear to the court why this option would benefit you. Do not raise it only to annoy the other side.
Read the Rule: Md. Rule 3-308
If you want to defend yourself against the claims made by the other side, file a “Notice of Your Intention to Defend” within 15 days of the date that you receive the Complaint. You have 60 days in certain circumstances (e.g., you are out of state or own a business with a resident agent).
- The Notice of Intention to Defend is located on the bottom of the Summons.
- You can write on the Notice the reasons why you should not have to pay the amount that the Plaintiff claims you owe.
- You do not need to describe your side of the story, but it may be helpful to do so.
- If you choose to respond, be brief but clear about your defense. State why the other side is wrong and mention the proof that you have.
- There are many possible reasons why you would choose (or not choose) to describe your defense. Consider:
- Why you might want to describe your defense in the Notice – If you have a good case, you may want to let the other side know before the trial. This may help you to negotiate a settlement.
- Why you might NOT want to describe your defense in the Notice – You might not want to give the other side a chance to prepare a response to your argument.
- Return the Notice of Intention to Defend to the court listed in the Summons.
- If you file a Notice of Intention to Defend, the court will notify the other side.
Read the Rule: Md. Rule 3-307
If you do not file the Notice to Defend, you may still appear at the hearing and offer a defense. The judge will likely question you to see if you have a defense. If the judge believes you have a defense, he or she may go ahead with trial that day. It is also likely that other side will ask to postpone (continue) the hearing to a later date. The other side will ask for the postponement in order to have more time to prepare.
Do you have a good defense?
- If there is a contract involved, read it carefully.
- Go through it point by point for obligations imposed on you or the other side.
- If you are not sure what the words mean, look them up in a legal terms glossary.
- Look for the key points in the plaintiff’s story.
- Can you dispute any of these?
- Look particularly at the parts of the story that show that you should be held liable (responsible).
- Look for receipts, take pictures, find witnesses, or put together any other proof of what happened.
- If you wish to have your witnesses appear at trial, contact the clerk's office at least 2 weeks before the trial date to request subpoenas. Learn more about subpoenas.
- Bring any evidence you want the judge to consider to the trial date.
- If the dispute involves goods or services, were they substandard? If you can show that the goods or services were substandard (e.g., by finding an expert or other proof of what is an acceptable standard), you may persuade the judge that you should not have to pay the full amount due.
- Read the law on your type of case.
- Talk with an attorney on the points you find confusing. Consider hiring an attorney for part of the case.
- Check if your homeowners or auto insurance cover this and provide representation.
- Consider what an outsider might think was fair. Based on your analysis, do you have a case?
- If you owe some money, you may be able to negotiate a lesser amount. Count this as a victory.
Counterclaim: If the plaintiff owes you money, you can sue him or her. You can file a counterclaim even if the other side owes you money from a different dispute.
Cross-Claim: Sometimes there is another defendant who was also sued by the plaintiff. If the other defendant actually owes you money in the same dispute, you can file a “cross claim.”
Joinder of Additional Parties: If someone else caused all or part of the harm but wasn’t sued by the plaintiff, you can “join” that party in the dispute through the counterclaim or the cross-claim.
Timing: File a counterclaim or cross-claim within 10 days after the deadline to file the Notice of Intention to Defend (i.e., 25 days).
Service: Serve any new party with a copy of all pleadings, scheduling notices, court orders, and other papers that have been previously filed in the action. Do not personally give them a copy. Learn more about Service of Process.
Be clear and concise. Explain your story. This is not an opportunity to criticize. It is not your chance to argue the whole case. Just include the highlights. Prepare for the trial just as if you had filed the complaint first.
- You cannot file for more money or other types of help (relief) than the District Court allows.
- If your claim is not right for District Court, your case can be transferred to Circuit Court.
- The maximum amount you can sue for in a small claims case is $5,000. The maximum amount in District Court is $30,000.
- The original complaint and your counterclaim or crossclaim will both be heard during the same trial.
- If there is a good reason, the court can order that the trials be held at different times.
Read the Rule: Md. Rule 3-331
If you have absolutely no defense, you can propose making installment payments.
Option 1 - Talk directly to the plaintiff as part of a negotiation.
- Assess how open the other side might be to negotiation.
- If you reach an agreement on installment payments, have the written agreement entered as part of the court order (i.e., Go to court, tell the judge that you reached an agreement, and ask the judge to enter the agreement as part of the court order). The advantage of the court order is that the plaintiff cannot change his/her mind in the future and harass you for the entire amount without going back to court.
Option 2 - Go to the trial and speak with the judge.
- Be prepared to make a good argument.
- A good argument means a summary of why you need to pay in installments and how you will be responsible for paying. Example – “I have just gone back to work after being out of work for 10 months. My bills are just about three quarters of my income. I can pay $30 every other week for 12 months to pay it off. I simply do not have the savings to be able to pay it all back now.”
- A bad argument describes all of your personal problems but does not offer a clear plan for how the installment plan might work. Example – “I have had a really hard time getting a job because of the problem with my leg, and the buses do not go by my house. I have a lot of other debts and my daughter has been sick. My car was repossessed and now I really need to take the bus to my job. I can’t pay back the money but maybe I could pay something periodically.”
Do this only if you have no defense at all. Even if you think that you owe the plaintiff the entire amount sought, it does not hurt to make an offer to the other side. You may be able to get the judgment reduced or pay it in installments. If you do nothing, you will likely have to pay the entire amount claimed by the plaintiff.
If the other side requests an “Affidavit of Judgment," and you do not answer or show up, the judge may decide in the Plaintiff's favor. The Court may not even require the plaintiff to come to the hearing. The Court may simply send you a notice with the amount of the judgment and the date the judgment was entered into official court records. The other side still has to prove its case. So, it is possible that the judge will find that the Plaintiff hasn’t done so. But don’t count on it.
What if I am collection proof? If you have a low income and few assets, you may be "collection proof" (or "judgment proof"). If you are collection proof, and a court enters a judgement against you, the Plaintiff will not be able to collect the judgment. However, the Plaintiff can collect the judgment from you once your situation improves. If you have a good case, present it to the court, even if you are collection proof.
Do not rely on the fact that you are collection proof if you have any defense at all. Although it may prevent the other side from pursuing you now, a judgment in Maryland lasts for 12 years, and the other side can renew the judgment for another 12 years. At some point, you may have assets that might be subject to an earlier judgment. If you can get the amount reduced, now is the time to ask the court to do so.
How much will I have to pay? The judge will decide on the exact amount. The court may add court costs or interest. By presenting your case at the hearing, you may be able to reduce the amount the judge orders you to pay.
Read the Law: Md. Code, Courts and Judicial Proceeding, § 5-102(a)(3)
Read the Rule: Md. Rule 3-625
If you are not sure what strategy to pursue, seek out legal advice from an attorney. Even if you handle the case yourself, it can be very useful to ask an attorney for some advice at key points where you need to make a decision.
- Keep track of the deadlines. Make sure that you respond to court deadlines on time.
- Review your options in detail. Consider the advantages and disadvantages to each.
- Consider your personal goals.