5,483
edits
Difference between revisions of "Starting a Small Claim (20:V)"
Jump to navigation
Jump to search
→C. Can the Defendant(s) Pay?
Desy Wahyuni (talk | contribs) |
Desy Wahyuni (talk | contribs) |
||
| Line 149: | Line 149: | ||
One cannot squeeze blood from a stone. If a defendant has insignificant assets or income, the defendant may have no means to pay a judgment; such a person is “judgment-proof” and a claimant with an uncollectible judgment is said to be holding an “empty judgment”. A claimant should consider whether it is worth the time, expense, and stress of suing a judgment-proof defendant. | One cannot squeeze blood from a stone. If a defendant has insignificant assets or income, the defendant may have no means to pay a judgment; such a person is “judgment-proof” and a claimant with an uncollectible judgment is said to be holding an “empty judgment”. A claimant should consider whether it is worth the time, expense, and stress of suing a judgment-proof defendant. | ||
A judgment is enforceable for ten years after it is issued55; after this time, unless it is renewed, the judgment expires and becomes uncollectible. On some occasions, a previously judgment-proof defendant will “come into money” by receiving an inheritance or winning the lottery. This is a rare occurrence and a claimant must invest time and effort to monitor the defendant’ s circumstances over the ten years that the judgment is enforceable. A more common change in a judgment-proof defendant’ s circumstances is the defendant securing a higher-paying job. | |||
A claimant should also consider the likelihood of the defendant going bankrupt. If the defendant goes bankrupt, the claimant may recover little or none of the amount of the judgment. For more detail on bankruptcy, see “Enforcement of a Judgment”. | |||
A claimant must decide whether or not to sue before the limitation period expires. If the limitation period expires, a claimant cannot later sue on that cause of action if the defendant’s circumstances change. | |||
== D. Drafting the Notice of Claim == | |||
The Notice of Claim is the document that starts an action in Small Claims Court. The Notice of Claim form is comprised of several sections and each section must be completed. The form can be either typed or handwritten. Hard copies are available from the court registry56 and an electronic copy is available online57. Where possible, a claimant should type the Notice of Claim form. | |||
A sample Notice of Claim58 is attached and may be a helpful guideline when drafting a Notice of Claim. | |||
=== 1. “From” === | |||
This section must contain the claimant’s full legal name, address, and telephone number. The claimant has an on-going duty to notify the court registry of any changes to the information in this section. Failure to provide the registry with current and accurate contact information may result in the claimant’s claim being dismissed and/or the claimant being liable for costs or penalties. | |||
=== 2. “To” === | |||
The claimant must list the full legal name, address for service, and, if available, the telephone number for each defendant. If additional space is required, the claimant may attach a piece of paper listing this information for each defendant. Alternatively, the Notice of Claim filing assistant59 can neatly add multiple defendants onto one Notice of Claim form. | |||
Failure to list the proper legal name of a defendant may result in the claimant’s claim against that defendant being dismissed or the judgment against that defendant being unenforceable. If the limitation period60 has already expired, the claimant may not be able to correct the error. | |||
=== 3. “What Happened?” === | |||
In this section, the claimant must list the facts that support the claimant’s cause(s) of action and the damages that the claimant has suffered.The claimant should adhere to the following general rules: | |||
#Don’t plead evidence – state what you will prove, not how you will prove it | |||
#Don’t plead law – unless you have a statutory cause of action | |||