Q. I have a dispute with a small business that I want to resolve in small claims court. I know I can sue for up to $10,000, but I have some questions. Do I need an attorney? What is the statute of limitations in small claims court? How do I get my money if I win?
A. Small claims court is great place to resolve monetary disputes in amounts up to $10,000. It is a real “People’s Court.” It is presided over by the local justice of the peace, many of whom are not attorneys. The rules for small claims court are very informal and are designed to let you feel comfortable. Most people who appear in small claims court do not have an attorney. If you feel you can tell your side of the story to the judge, you probably do not need an attorney. Of course, if you believe you will be too nervous or uncomfortable to do a good job, the other side has an attorney, or the amount of money is large, you should consider having an attorney represent you. In most consumer cases you may recover your attorney’s fees from the other side if you win. The best way to see what small claims court is like is to go to the court and sit and watch. Then you will be able to make a decision about representing yourself.
The statute of limitations (the time within which a lawsuit must be filed) for small claims court is the same as any other court and is based on the nature of the claim, not the court. In most cases, you have two or four years to file a claim. For example, consumer suits under the Deceptive Trade Practices Act and torts such as negligence must be filed within two years. Claims based on a breach of contract must be filed within four years. Most claims against a business are either for a violation of the Deceptive Trade Practices Act (two years) or breach of warranty (four years).
Getting paid after you win in small claims court can be a problem. If you win, the court will issue a “judgment” in your favor. In most cases involving a business, no further collection efforts will be necessary because the business will pay the money owed. If you sued an individual running a small business and you are not paid, however, you should file what is called an “abstract of judgment.” This makes the judgment public record, and it will be reported on the person’s credit report. You then enforce the judgment by “executing” against non-exempt property. In Texas, wages, a homestead, retirement accounts and most personal property are “exempt,” and may not be taken to satisfy a judgment. This means you must find other “non-exempt” property against which to collect. For example, if you know where the person banks, you can file a “writ of garnishment” to take money that is in a checking or savings account.
To learn more about small claims court and how to collect if you win, visit the small claims court section on my Web site, www.peopleslawyer.net .
Q. I just got a notice to be out of my apartment in three days. Can I be evicted this fast? Will he just put my stuff on the street?
A. Assuming the landlord has the right to evict you – for example, you have not paid rent or violated the terms of your lease – the three day eviction notice is sufficient. You will not, however, be thrown out in three days if you do not move.
A landlord does not have the right to just remove your property from the apartment or lock you out. To evict you, the landlord must go to court. (He may change the locks, but if he does this he must make a key available for you to come and go, 24 hours a day.) If the landlord goes to court to have you evicted, a prompt hearing will be scheduled to determine whether the landlord has the right to evict you. Assuming he does, you will be instructed to leave, and if you do not the landlord can go back to court and get an order directing the constable to remove all of your property. The property will then be put in storage and you will have to pay a substantial fee to have it returned.The eviction process can take a few weeks, but my advice is to not wait to leave the apartment. You can’t be thrown out in three days, but I recommend you move out as soon as possible, and definitely before the constable shows up and takes your property.
To learn more about your legal rights, including landlord tenant law, or ask me a question, go to www.peopleslawyer.net .