1. What is Civil Magistrates Court?
2. Do You Need a Lawyer?
3. Costs - for plaintiff
4. Some Tips
5. Defendants
6. Prepare for trial
7. The Trial
8. The Magistrate's Judgment
9. After the Trail
10. If You Lose and Can't Afford to Pay
11. Tips for Protecting your Exemption Rights

1. WHAT IS CIVIL MAGISTRATES COURT?
1. The Civil Magistrates Court is part of the North Carolina court system. People can easily and cheaply bring lawsuits regarding claims worth $5,000 or less.
   Every county in North Carolina has a
   Small Claims Court. The case normally must be
   filed in the county the Defendant lives, or in the case of a business Defendant, where the Defendant conducts business.
2. The Magistrate may not be a lawyer. There is no jury. The trials are informal. You can represent yourself without a lawyer, but you may have a lawyer, if you want. If either party is a corporation, and the complaint is for a money judgment, a lawyer must represent a corporation, or the corporation cannot present evidence.
3. The person who starts the lawsuit is called the “Plaintiff”. The person being sued is called the “Defendant”
4. Common types of cases
1. Most common cases are Landlord-Tenant cases, where the Owner of real estate is trying to evict a tenant. THOSE MUST BE FILED IN MAGISTRATE COURT. Before a landlord can put out (evict) a tenant, North Carolina law requires that the landlord file an action in Small Claims Court called a "summary ejectment." The landlord cannot just lock a tenant out or make a tenant leave by threats, or by turning off heat. All tenants (even non paying ones) have legal protections and rights. If a landlord does not use the Magistrate Court, the penalties can be severe.
2. Next most common cases are for money owed. Complaints for money owed can be filed in Magistrate Court if less than $5,000.00, but can also be filed in District Court if you prefer to do that. There are benefits to each. For example, Magistrate Court is easier to do yourself. Magistrate Court has cheaper filing fees. Magistrate Court is quicker to get heard.
3. However, you can file suit for anything, as long as claim is not less than $5,000.00. Example: to reclaim possession of property wrongfully held by another.
   
   
2. DO YOU NEED A LAWYER?
1. NO. HOWEVER, you may want a lawyer. The exception is a corporation. A CORPORATION IS REQUIRED TO HAVE AN ATTORNEY, if the lawsuit is for money owed.
2. If you are the Defendant, you may be able to get free lawyers from the Legal Services office nearest you. The local office in Durham is at 919-755-9928. You may want to call a Legal Aid office, if you are being evicted.
   
   
3. COSTS - FOR PLAINTIFF
1. For each complaint, the Plaintiff must pay a $65 filing fee to the Clerk of Court. You pay an additional $15 fee for each Defendant, if you want the Durham County Sheriff to serve the forms to the Defendant. There are other ways to serve the Defendant (example- by certified mail, or publication), but service by Sheriff is the better idea. If you win your case, the Court is may require the loosing party to pay the filing and service fee for the case, and will usually do so.
2. If you cannot afford to pay the fees, you can ask the Clerk to waive the fees. This is called a "Petition to Sue/Appeal as an Indigent". You need to ask the Clerk for the forms. If you are on food stamps, Temporary Assistance to Needy Families (TANF) or Supplemental Social Security (SSI), then the Clerk will allow you to file a lawsuit without paying any fees. If you do not receive any of those benefits, then the Clerk will want to know why you cannot afford to pay the costs.
   
   
4. SOME TIPS
   1. Businesses as Defendants. If you are suing a business, you must first find out whether it is a corporation or not. GO ON THE INTERNET. The web site is http://www.secretary.state.nc.us/Corporations/.
• Type in the name of the business and you can learn if the business is a corporation (Co., Inc., or Ltd.) or a limited liability company (LLC).
• You must get the name and address of the corporation’s registered agent, to serve the complaint.
• The phone number of the N.C. Secretary of State, Corporations Division is (919) 733-4201. You can call and ask if the business is a corporation. The Secretary of State will tell you the county, city, and street address of the corporation’s registered office and principal place of business, which could be in different counties.
• You may sue this corporation in any county where it does business. (Calling may take a lot of time and the better way is to use the internet.)
• If there is no record of that business as a corporation , then go to the Register of Deeds office in the county where the business has its main office. The Register of Deeds, which is usually in the county courthouse, should have the name of owners of businesses in its county, in the “assumed name index”. If the business is listed, use the business owner’s name on the court papers as the Defendant.
• If the Register of Deeds office does not have information about the owners then go to the business (or call) and ask to speak to the owner. Ask for his name or ask others who work there who the owner is. Look at business cards and just use your common sense to find out who is the owner, and he or she can be served at the business location, if you cannot find his or her home address.
• You can sue the business in any county where it does business.
1. Counterclaims. If you are the Defendant, you can sue the Plaintiff as part of the same case. You do this by filing a "counterclaim," also in Small Claims Court. For example, a landlord can sue you for not paying rent. But you didn’t pay because the house has no heat. You can sue to get the past rent back that you did pay. YOU SHOULD FILE A COUNTERCLAIM IF THE PLAINTIFF OWES YOU MONEY. If you fail to do so you won’t be able to sue for many of the claims you may have against the Plaintiff. Your counterclaim cannot be for an amount more than $5,000. To file a counterclaim, you must do so in writing. Write what the claim is calling it "Answer and Counterclaim." Mail a copy to the Plaintiff. Attach a “certification” that you mailed it to the Plaintiff. Take the written answer and counterclaim to the Clerk of Court on or before the day of your trial, and it will be filed in the court record. The counterclaim must be filed in the court file before the case is called for trial.
   
   
5. DEFENDANTS
1. If you are being sued, you will be given a summons and a complaint. Read these carefully, and several times. These court papers will tell you what the case is about and when you go to court.
2. If you are a tenant, there are other ways you can be notified of a proposed eviction. Besides receiving a complaint and summons from the sheriff or by certified mail, these are often nailed on the front door of your home. Legal papers posted on your door are important! Pay attention to them.
3. You are allowed to mail a written answer to the Clerk of Court about the complaint. But you can also wait and tell your side of the story at the trial.
4. You may have a complaint against the person who is suing you. If so, file a counterclaim.
   
   
6. PREPARE FOR TRIAL
1. If you are the Plaintiff
1. THE PLAINTIFF MUST PROVE THE CASE: THE BURDEN OF PROOF IS ON THE PLAINTIFF, AND IF HE OR SHE CANNOT PROVE THEIR CASE, THE PLAINTIFF SHALL LOSE.
• Explain how and why the Defendant owes you money and the amount owed.
• The Plaintiff must also prove the amount owed.
• If you are the landlord seeking to evict your tenant, you must prove why the Defendant must leave the property.
2. If you are the Defendant:
1. You try to show that you do not owe the money or should not have to return the property, or that you owe less than the Plaintiff says you owe; or
2. In a summary ejectment case, you need to show why you should not be required to move out, or that the landlord owes you money because of the landlord's failure to maintain your home in a livable condition.
3. Steps To Prepare for the Trial
1. Written evidence.
   What paperwork do you have to prove your side of the story? Look for receipts, copy of cancelled checks, or anything else you can think of to prove your claim
2. Witnesses.
   Anyone who has knowledge can be a witness. They have to appear in court to tell the judge what they know. You cannot use written letter or notes. Make sure your witness knows when and where to come. If a witness won't come to Court you might want to force the witness to come to Court by having the sheriff deliver a subpoena to that witness.
3. Think about the case.
   DO YOU WANT TO SETTLE WITH THE OTHER SIDE? Sometimes a little money is more that the Plaintiff expects and they will take a small amount to dismiss the case. If so, make sure you have written proof the case is settled and how much for. If a Plaintiff, get the money before dismissing the case. If a Defendant, get written agreement to dismiss the complaint in return for the money. Maybe you can pay his the money at the courthouse so the judge can see the case is resolved. The Magistrate always prefers the parties resolve their dispute by mutual agreement rather than having to resort to a hearing. DO YOU HAVE A COUNTERCLAIM?
4. Know where the case is to be heard.
   
   
7. THE TRIAL
1. Be on Time
1. If the Plaintiff does not show up the Magistrate will dismiss the case. If you are the Defendant THE MAGISTRATE WILL ONLY HEAR ONE SIDE AND YOU WILL LOSE.
2. If you cannot make it to Court on the day of your trial, call the Magistrate ahead of time and ask for a continuance of the case. The Magistrate will ask why you need another date. You must have a reason. For example to hire a lawyer, to get witnesses, you are ill, sick child, need more time to get exhibits together, etc. The Magistrate usually will say ok if you have a good reason. A bad reason is “I don’t want to pay the Plaintiff any money.” Or “I don’t feel like coming today”. Remember, if you are the Plaintiff and don't call and don't show up at Court, the Magistrate will dismiss your case.*
2. The Plaintiff goes first
1. Tell your story - BE TRUTHFUL AND STRAIGHTFORWARD. GIVE THE FACTS, NOTHING BUT THE FACTS, AND SHOW YOUR EVIDENCE TO SUPPORT WHAT YOU SAY. YOU CAN THEN CALL YOUR WITNESSES AND LET THEM TELL WHAT THEY KNOW AND HOW THEY KNOW IT.
2. The Magistrate and the Defendant are allowed to ask questions of you and of your witnesses.
3. If you give testimony you will be asked to swear that you are telling the truth. You do not have to swear on a Bible, if you prefer not to. In the alternative, you may affirm your testimony will be truthful.
4. Bring enough copies of your written evidence so the Defendant gets one, the judge gets one and you still have one.
3. The Defendent goes second
1. The Defendant now has the opportunity to present their side of the case. In doing so, the Defendant may present any evidence and witnesses. The Plaintiff gets to ask questions of the Defendant and any witnesses.
4. Magistrate goes last.
1. The Magistrate Reaches a Judgment. The Magistrate tells you what he believes, who he believes and the verdict. AFTER THE MAGISTRATE RENDERS A VERDICT, THE CASE IS AT AN END IN SMALL CLAIMS COURT.
   
   
8. THE MAGISTRATE'S JUDGMENT
1. The Magistrate can make a decision at the trial or may wait up to 10 days to issue the judgment. Almost always he or she will give a verdict right away so you can hear it in open Court. In the judgment, the Magistrate may:
1. Give the Plaintiff nothing;
2. Order the Defendant to pay either the full amount claimed by the Plaintiff or part of that amount, including the Plaintiffs filing fees;
3. Order the Defendant to return property to the Plaintiff; or
4. In summary ejectment cases, order the Defendant to vacate the premises and/or pay rent or damages that are due.
2. If the Magistrate makes a decision that you do not understand, ask the Magistrate to explain it to you. If the Magistrate makes the judgment during the 10 days after the trial, you can call or go to the Clerk of Superior Court later to find out the judgment. Be sure to have the case file number with you.
   
   
9. AFTER THE TRIAL
1. EITHER SIDE CAN APPEAL FOR A NEW TRIAL BEFORE A DISTRICT COURT JUDGE, within 10 days of the Small Claims Court verdict.
1. When a case is appealed by either party, a new trial date is set for District Court. It is handled as if the case has never been tried before. This means you will have to present your evidence and witnesses again. Either side may ask to have a jury to decide the facts, but this request must be made at the time the notice of appeal is filed. If neither side chooses to have a jury, the judge will decide the case. The procedure in District Court is more formal and takes more time.
• The Clerk will ask for an appeal fee and will provide the form necessary to appeal. Follow the directions carefully. If the forms are not properly served, or completed, the curt will dismiss the appeal.
2. If Neither Side Appeals
1. If you are the Plaintiff and won your case, the Defendant may pay you directly or pay it to the Clerk of Court, who will then mail it to you.
2. If the Defendant pays you directly, you must tell the Clerk's office so they can show payment in the court records. DON’T FORGET! Do this within 60 days or the Defendant can sue you to make you do this. In such a suit, you may have to pay the Defendant's attorney, a civil penalty, and Court costs.
3. If the Defendant will still not pay, you can talk to the Clerk to get the rules on an execution. The Clerk will give you the necessary forms for an order to the sheriff called an execution. This gives the sheriff the power to demand payment of your judgment from the Defendant. If the Defendant does not pay, the sheriff can then seize any cash, vehicles, goods or other property of the Defendant, sell them, and use the money to pay the judgment. The sheriff turns over any money collected in this way to the Clerk, who notes payment in the official records and mails the money to you.
4. THIS IS NOT A SIMPLE PROCESS. For example, each debtor is entitled to exempt certain property, after you notify of your intention to take property
3. Property Which the Sheriff Cannot Take -"'Exempt" Property
1. i.The law lets the Defendant keep some property, which is called "exempt" property. The Clerk will require each Plaintiff to send two forms to the Defendant, called Notice of Right to Have Exemptions Designated and Motion to Claim Exempt Property.
2. ii.After receiving these forms, the Defendant has 20 days to fill out the Motion to Claim Exempt Property, mail or deliver it to the Clerk's office, and send the Plaintiff a copy. If the Defendant does not return the form in the 20-day period or returns the form showing there is property to take, the sheriff is free to take any property the Defendant owns. If the Defendant does return the form, property listed cannot be taken unless the property should not be listed (there are many times people incorrectly fill out the exempt property form) but the sheriff can take any of Defendant’s property not listed. The Plaintiff can challenge what property is listed
3. iii.If the Defendant denies owning certain property, then you will need to prove that the Defendant is wrong. The Judge will then make a decision about what property the Defendant can keep. After that decision is made, then you can ask the Clerk of Court to issue the execution to the sheriff.
4. iv.The Clerk's fee for issuing this execution order is $25. The fee to the sheriff’s office for trying to collect the judgment is $15. Sometimes, the Defendant may give the sheriff the money that is owed on the judgment. If the Defendant does not pay, then the sheriff will try to locate property that can be taken to pay the judgment, then there will be additional costs involved in taking the property and selling it. The Plaintiff is sometimes asked to advance these cost, but they are repaid from the money collected from the sale of the property.
5. v.Execution papers are good for 90 days. If the sheriff cannot locate the Defendant to deliver the execution or cannot locate property that can be taken to pay the judgment within that 90-day period, then he will lose his authority to try and collect the judgment for you. After the 90 days, the sheriff will return the papers back to the Clerk of Court with a written statement about why the papers are being returned. The Plaintiff can issue new papers anytime with 10 years of the judgment. There is no limit on the number of executions that the Clerk can issue. However, the Plaintiff is required to give the Defendant a new Notice of Right to Have Exemptions Designated and Motion to Claim Exempt Property before any new executions are issued.
6. vi.Until the judgment is paid in full, the records in the Clerk's office will show that the judgment is "outstanding." This information is made available to the credit agencies. Many landlords check the Court records before allowing a tenant to rent an apartment. Some employers check the Court records. Many merchants check the Court records before letting persons buy on credit. Lenders for real estate usually require all judgment to be paid before loaning money for a home purchase.
   
   
10. IF YOU LOSE AND CAN'T AFFORD TO PAY
1. YOU MAY BE ELIGIBLE FOR PROTECTION BY THE BANKRUPTCY LAWS.
   
   
11. TIPS FOR PROTECTING YOUR EXEMPTION RIGHTS
1. Notify the Clerk of Court and judgment creditor(s) if you change addresses after a judgment is entered. If you cannot be located for personal service by the Sheriff or by certified mail, service of the exemption notice can be made by regular mail to your "last known" address, whether or not you actually receive it.
2. Carefully read all mail and Court notices you receive. Your 20-day time limit for claiming exemptions begins on the day after you are served with the exemption notice.
3. Read and follow the instructions stated on the Motion form. Complete each section of the Motion. Make sure you list all of your property, including your share of property owned with others. You can attach additional pages if necessary. Values should be based on what you reasonably believe you could sell the item for, at a flea market, for example. If an item has no equity value (see above), you should list the item with a "$0.00" value.
4. Make sure to follow instructions at the end of the Motion for signing, dating, and serving your Motion. One copy of the Motion must be filed with the Court, and a copy must also be sent to the creditor - all within the 20-day time limit.
   

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