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Milam & Idol, PLLC
Attorneys at Law

919-534-1200

401 North Mangum Street, Durham, NC 27701
 

Small Claims in North Carolina

Our firm does not generally handle legal disputes that are eligible for North Carolina small claims court. This page is for informational purposes only to help our visitors successfully handle a small claim action on their own.  There are other methods, known variously as alternative dispute resolution, mediation and arbitration, that are also available privately to assist in the resolution of disputes.  However, these topics are beyond the scope of this page.

What is Small Claims Court and What are the Requirements?

The North Carolina Small Claims court is a part of the overall North Carolina court system, but is specifically designed to allow people with eligible disputes to have them heard in a more expedited and relaxed setting.  North Carolina General Statutes Chapter 7A, Sections 210 through 232 set out the rules and procedures for small claims court.  In order to qualify for the Small Claims court, the amount is dispute must not be more than $5,000, and only the collection of money, the recovery of personal property or landlord/tenant summary ejectment (eviction) proceedings can be heard by a small claims court. Lawyers are optional in small claims court.

The plaintiff (person making the claim) must be at least 18 years of age and competent.  The defendant in a small claims action must be sued in the county where the defendant lives.  When the defendant is a North Carolina business or a corporation, it must be sued in the county where either it has its principal office or where its registered agent is situated.

How is a Small Claim Actually Filed?

If you meet the eligibility requirements, then you need to do some “homework” before you actually file the small claim lawsuit.  The first thing to do is determine who the defendant actually is and where you can find the defendant.  If the defendant is a person or persons, then all you need  is find a good address where the sheriff or the post office can deliver the small claims papers. 

If the defendant is a business or corporation, there is a little more digging to do.  Go to this corporate search link of the North Carolina Secretary of State.  Follow the directions at this site to find the name of your defendant.  If the company is a North Carolina corporation, LLC, or limited partnership, or is an out-of-state corporation, LLC or limited partnership doing business in North Carolina,  their name should be here.  Take down the name of the registered agent and  registered office for the company, and the addresses for each.  This agent or office and that address is what you must put down for the business.  If the county location for the office or agent is different that your own county (for example, you’re in Durham but the company’s agent or office is based in Raleigh, which is Wake County), then you must file your small claim lawsuit in that county.

If you can’t find the name of your defendant company at the Secretary of State, then you will have to check the Register of Deeds to see if they have an “assumed name certificate” for that company.  These certificates are supposed to be filed in the local Register of Deeds when the business is operating in that county, is not a corporation, LLC or limited partnership, and is run by an individual using a trade name, or by partnerships.  The Durham County Register of Deeds has many of its records, including assumed name certificates, searchable online.  In other counties you will probably need to go visit the Register of Deeds office. 

If you can’t find information on your business defendant in any of these places, then you can try to sue the business using its local business location address

Once you have identified your defendants and their addresses, then, depending on your claim, you have to fill out two forms (downloadable here if you have the Adobe Acrobat Reader):

    1.      Complaint for Money Owed,. OR

             Complaint To Recover Possession of Personal Property, AND

    2.      Magistrate Summons (one for each defendant)

    Once these forms are filled out, they must be taken to the filing office of the Clerk of Superior Court in the county where the small claim lawsuit is to be filed.  You must bring $96 to file the lawsuit, plus $30 for each defendant (to cover the cost of the sheriff delivering the papers to the defendants).  If you are too poor to pay for the filing fees, you can petition to court to waive the filing fee and let you file as an indigent, using the form:

             Petition to Sue as Indigent

It is best to bring cash for the filing fees, although some clerks will accept personal checks or money orders.  The Clerk will check over your forms, then fill in the rest of it.  The Clerk will also immediately assign a court date for you.  The court date cannot more than 30 days from the date you file the complaint.

Going to Trial

When you have filed the lawsuit, the sheriff will deliver your papers to the defendants.  The defendants may contact you to try and resolve the matter, which is strictly up to you.  However, if you have an attorney representing you, the defendants must talk to your attorney.  The defendants may also file a written answer to your complaint, but they are not required to do so. 

You need to make sure that during this period you get your case ready for trial.  You must assemble your evidence, such as receipts, letters, bills, checks, etc.  If you’re going to bring witnesses, you must make sure they can be present on the court date and are willing to testify for you. 

On the court date itself, you may be surprised at the appearance of the court.  Small claims courts are usually NOT like the courtrooms you’ve seen on TV shows.  The judge is called a civil magistrate, and usually the trial takes place in a small office where the magistrate sits behind a regular desk and everyone else sits in chairs in front of the magistrate in the office.  You should be on time, even a little early, for your court date.  This allows you time to park and find the small claims courtroom.  If for some reason you cannot come to court on your court date, you must contact the magistrate and arrange for a postponement.  If you do not appear, and no postponement was granted, then the small claims court will dismiss your action and the money you spent to file it will be lost.  If the defendant doesn’t show up, you don’t automatically win, but your chances of winning go up big time.

Don’t be nervous about presenting your case.  The magistrate knows you are not an experienced lawyer and will give you every opportunity to get your side of the story across without pressure.  Be familiar with your complaint, evidence and witnesses.  It might be a good idea to have a brief outline or notes ready to work from.  You will be put under oath (or affirmation) before you start, and you should be prepared to answer questions from the magistrate or the defendants.  If the defendants appear, they have a right to put on their side of the story, and you have rights to ask them questions also. 

When all the testimony is in, the magistrate will probably render an immediate decision.  However, if the case is complicated or unclear, the magistrate may wait to issue a decision later.  The magistrate can wait up to 10 days to make a decision.  The magistrate has several decision options:  (1) your case could be dismissed and the defendant wins, or (2) you could win your case in full or in part, and the magistrate will order the defendant to pay you, plus the court costs.  If the case is about recovery of personal property, then the order could be for the return of property.  If there is anything about the magistrate’s order you don’t understand, ask the magistrate about it while you are there. 

OK, you won, but now what?

Once the magistrate enters a judgment, either side can appeal the judgment to District Court within 10 days of the date the judgment is entered by the magistrate, using the

The person appealing has to pay the filing costs of the appeal.  An appeal to District Court means that everything that happened in small claims court is throw out, and the case has to be tried again in front of a District Court judge.  Since District Courts are much more formal, many parties find that it’s a good idea to have a lawyer help them with the case.

If the small claims case is not appealed within the 10 days, then the small claims judgment is final.  However, if you won, the court does not write you a check.  All the court has done is determine that you were right and the defendant owes you the money.  It is up to you, with assistance from the court system, to get the money out of the defendant.  If the defendant simply pays up in full, great!  All you need to do is notify the Clerk of Court that you have been paid on the case, so that the judgment can be officially marked paid.  If the defendant does not pay you, then you may have to file what are known as execution papers on the defendant.  Execution means that, under certain facts, the sheriff can seize non-exempt property of the defendant to pay your judgment.

In order to execute your judgment, you must first wait the 10 days from the judgment to make sure no appeal will be filed.  After that, you must send the defendants two forms:

The forms are sent to the defendants the same way the complaint and summons were sent, by the sheriff with another $15 fee per defendant.  After receiving these two forms, the defendants have twenty days to fill them out and send back to the Clerk, with a copy going back to you.  This is where things get tricky.  State law allows defendants to exempt from judgment certain property, but not all property.  If a defendant files an exemption form that you think looks wrong or incomplete, or the defendant exempted what you think is too much property, then you can have a hearing before a District Court judge to resolve your complaints. 

If the exemption form looks OK and there is available non-exempt property, OR in a contested exemption when the District Court judge makes a decision and there is still available non-exempt property, then you move to the next step of actual execution.  The Clerk issues an execution order for the sheriff to execute against the defendants.  You have to pay some more fees to file an execution and have it served again on the defendants, but these costs are added to your other costs as a charge against the defendants. 

If the sheriff is able to collect your money under the execution, he will pay it over to the Clerk of Court and you will be notified to come get it.  If the sheriff is unable to collect any money, he will report this to the Court, who will also let you know.  If you don’t get paid on the first execution, the judgment is good for 10 years, and you could always execute again.  If you discover later that the defendant has moved to another North Carolina county, you can have the Clerk transfer a copy of your unpaid judgment to that county to make sure it follows the defendant to the new location.

NOTICE:  All of the downloadable PDF files which are available on this page for filing Small Claims court actions are available free of charge from any North Carolina Clerk of Court office.  All forms are copyrighted by the Administrative Office of the Courts of North Carolina, and are not to be used for any purpose OTHER than filing Small Claims court actions in North Carolina.

For more information, check out these links:

A Guide to Small Claims Court (Legal Aid of NC)
NC Magistrate’s Association Small Claims Information Page
NC Attorney General Consumer Protection Division