ÿþ<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> <html xmlns="http://www.w3.org/1999/xhtml"> <HEAD> <title>26th Judicial District SelfServe Center</title><!-- InstanceBegin template="/Templates/ITSCore_1-4.dwt" codeOutsideHTMLIsLocked="false" --> <!-- DW6 --> <meta http-equiv="Content-Type" content="text/html; charset=iso-8859-1"> <meta name="keywords" content=""> <!-- InstanceBeginEditable name="doctitle" --> <!-- InstanceEndEditable --> <!-- favorites ico --> <link rel="shortcut icon" href="http://www.icandocs.org/testsite/images/16_article.ico"> <!-- replace the key below - replace the key below - replace the key below--> <link href="css.css" type="text/css" rel="stylesheet"> <!-- replace the key above --> <!-- print style sheet --> <link href="print.css" rel="stylesheet" type="text/css" media="print"><script id=clientEventHandlersJS language=javascript> <!-- function A1_onclick() { } //--> </script> </HEAD> <body> <!--Beginning of the WSU Identifier Zone. Refer to www.wsu.edu/identity/ for more information. --> <noscript> <div id='logo'><a href='http://www.legal-aid.com'><img src='../images/logo5.gif' alt="I-CAN!&trade; Logo"></a></div> <div id='globalnav'><ul> <li> <a href="http://www.legal-aid.com">Legal Aid Society of Orange County</a></li></ul> </div> </noscript> <script language="Javascript" src="js/wsuidentifier.js" type="text/javascript"></script> <!--<script language="Javascript" src="js/smoothscroll.js" type="text/javascript"></script>--> <script language="javascript" type="text/javascript"> var strHeader; strHeader = getHeader(); document.write(strHeader); </script> <!--End of the WSU Identifier Zone. --> <div id="idwrapper"> <div id="siteID"> h <h1><font size="+1">26th Judicial District</font> <font size="+4"> SelfServe Center </font> </h1> </div> <div id="toolbar"><a href="locate.html">Locate the Center</a>&nbsp;&nbsp;&nbsp;&nbsp; | &nbsp;&nbsp;&nbsp;&nbsp;<a href="hours.html">Center Hours</a>&nbsp;&nbsp;&nbsp;&nbsp; | &nbsp;&nbsp;&nbsp;&nbsp;<a href="disclaimer.html">Disclaimer</a>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; | &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Already have an I-CAN!&trade; password?<a href="https://secure.icandocs.org/nc2/Start.aspx"> Login Here </a> </div> </div> <div id="content"> <div id="nav"> <div id="featured"> <ul> <li><a href="ssc.html" class="navparentpath"><font size = +1>English</font></a></li> <li><a href="ssc_1.html" class="navparentpath"><font size = +1>Español</font></a></li> </ul> </div> <font color= "tan">&nbsp;SelfServe Center</font> <ul> <li><a href="ssc.html">Home</a></li> <li><a href="calendar.html">Calendar of Services</a></li> <li><a href="staff.html">Staff Assistance</a></li> <li><a href="videos.html">Educational videos</a> </li> <li><a href="clinics.html">Free legal clinics</a> </li> <li><a href="aod.html">Attorney of the Day</a></li> <li><a href="library.html"> Resource Library</a></li> <li><a href="forms.html">Court Forms</a></li> <li><a href="care.html">Free Child Care</a></li> <li><a href="disclaimer.html">Disclaimer</a></li> </ul> <font color= "tan">&nbsp;Online Self Help</font> <ul> <li><a href="faq.html">FAQ</a></li> <li><a href="attorney.html">Finding an Attorney</a></li> <li><a href="gloss.html">Legal Glossary</a></li> <li><a href="self.html">Representing Yourself</a></li> <li><a href="http://www.icandocs.org/nc" target="resource window">I-CAN!&trade; Legal</a></li> <li><a href="ccv.html">Child Custody and Visitation</a></li> <li><a href="cs.html">Child Support</a></li> <li><a href="div.html">Divorce</a></li> <li><a href="dv.html">Domestic Violence</a></li> <li><a href="evict.html">Eviction</a></li> <li><a href="exp.html">Expungement</a></li> <li><a href="dp.html">Limited Driving Privileges</a></li> <li><a href="nc.html">Name Change</a></li> <li><a href="sc.html">Small Claims</a></li> </ul> </div> <div id="main"> <!-- InstanceBeginEditable name="MainContent" --> <h2>Frequently Asked Questions (FAQ) </h2> <p><br> <img class="imagefloat" src="images/meck.jpg" alt="" width="153" height="230" border="0"> <h4>Small Claims FAQ</h4> <p><b>Q. What is Small Claims Court?</b> <p><b>A.</b> Small Claims Court is part of the North Carolina court system where people settle disputes regarding property or money worth $5,000 or less. Every county in North Carolina has a Small Claims Court, which is sometimes called Magistrate s Court. You must be at least 18 years old to use Small Claims Court.</p> <p>The judge, called a magistrate, may or may not be a lawyer. There is no jury. The trial is quick and informal, usually lasting no more than 15 or 30 minutes. You don t have to have a lawyer to represent you in Small Claims Court, but you may have a lawyer. The person who starts the lawsuit is the plaintiff. The person being sued is called the defendant. </p> <p>For example: <ul> <li>1. If your landlord refuses to make your home or apartment meet housing codes, and you sue for damages, repairs, or lower rent then you are the plaintiff.</li> <li>2. If your landlord tried to evict you from your apartment and collect back rent then you are the defendant.</li> </ul> </p> <p><b>Q. What are the costs of Small Claims Court?</b> <p><b>A.</b> Suing someone in Small Claims Court costs money. For each lawsuit, the plaintiff must pay a $75 filing fee to the clerk of court. You pay an additional $15 fee for each defendant or plaintiff you serve to cover the cost of the sheriff getting the proper legal forms to the defendant. The plaintiff/defendant can choose to mail the papers directly to the defendant, as explained in Chapter 2, but this is more difficult and not much cheaper. If you win your case, the court may add these costs to the amount that he defendant is supposed to pay you. If you cannot afford to pay the fees, you may not have to pay them. You have to fill out a form called <b>Petition to Sue Appeal as an Indigent.</b> You get the form from the clerk. You fill out the top part of this form and sign it before a notary public. If you receive food stamps, Temporary Assistance to Needy Families (TANF) or Supplemental Social Security (SSI), then the Clerk will automatically allow you to bring the lawsuit without paying any fees. If you do not receive any of those benefits, then the Clerk may ask for additional financial information to determine whether you can afford to pay the costs. There can be additional fees if you ask the sheriff s department to enforce the judge s order or want to appeal a judge s ruling. NOTE: The information in this section is from the Legal Aid of North Carolina Website and can be found <a href='http://www.legalaidnc.org/public/learn/publications/small_claims_court/Small_Claims_Chapter_1.aspx' target="resource window">here. </a> <p><b>Q. Do you need a Lawyer?</b> <p><b>A.</b> Before you decide to handle your own case in Small Claims Court, you need to think about whether you need a lawyer. If you are facing eviction by your landlord or being sued by a finance company, you may need a lawyer. If your income is no more than 125 percent of the poverty level, you may be eligible to get free legal assistance from the Legal Services office nearest you. You may want to call a Legal Aid office to find out if a Lawyer can help you with your case. For current poverty level information please click <a href='http://aspe.hhs.gov/poverty/07poverty.shtml' target="resource window">here. </a> <h4>Housing FAQ</h4> <p><b>Q. My landlord is taking me to court for non-payment of rent. What do I do?</b> <p><b>A.</b> If the only reason for your eviction is for non-payment of rent, you can avoid the eviction. At the hearing, before judgment is entered, tell the magistrate that you have the amount of money owed plus the court costs. The magistrate must dismiss the landlord's complaint if you pay the landlord all of the rent owed and court costs. <p><b>Q. My landlord is taking me to court for reasons other than rent owed. What do I do? </b> <p><b>A.</b> If your landlord is evicting you because you have done something prohibited by the lease or failed to do something required by the lease, you must first be sure that the lease specifies the conduct alleged by the landlord. It should also be clear in the lease that violation of that specific requirement gives the landlord the right to evict you. You can avoid the eviction if you can show that you did not breach the lease or that, even if you did, there is nothing in the lease that specifies that the specific conduct alleged will result in your eviction. <p><b>Q. I went to Magistrate s court and lost. What do I do? </b> <p><b>A.</b> You can appeal. You have ten days from the day that the judgment was entered to appeal. If you want to remain in the rental property during the appeal, you have to post a bond. The process to appeal may be complicated. Contact the Legal Aid office in your area for further help. (Review the instructions about the appeal process and bond) <p><b>Q. I have received a notice from the Sheriff saying that I must be out or the Sheriff will padlock the rental property. What do I do? </b> <p><b>A.</b> You have received a writ of execution. This happens when: <ul> <li>1. A judgment evicting you was entered and you did not appeal the judgment; or</li> <li>2. You appealed but did not pay the rent bond in court on time. If the second one happens, you can still have a new trial and be put back into the home if you win. </li> </ul> <p>A write of execution is an order telling the Sheriff to restore possession of the rental property to your landlord. The sheriff will come and order you to vacate the rental property. You have ten (10) days from the day you were removed by the Sheriff to remove your personal belongings.</p> <p><b>Q.The property I rent needs repairs and the landlord ignores my request. What can I do? </b> <p><b>A.</b> Make the request for repairs to your landlord in writing. Keep a copy of the letter. Give your landlord a reasonable amount of time to repair. If your landlord does not respond or refuses to make repairs, contact the local legal aid office. You can also contact the local housing inspector if you have worries or concerns about the health and safety of you or your family. <p><b>Q. I live in subsidized housing and I have received a letter of termination. What do I do?</b> <p><b>A.</b> The notice of lease termination is required before you can be evicted from subsidized housing. The notice tells you the reasons alleged by your landlord for terminating your lease. It should specify the date when your lease will end. The notice will also give you your right to appeal and your right to request a hearing or to request a meeting or conference. Follow the directions in the letter to request a conference or hearing. You may contact the local legal aid office for further help. If you do not move out by the date specified in the notice of termination your landlord will have to proceed with legal process to evict you. <p><b>Q. Can I withhold rent if my landlord refuses to repair? </b> <p><b>A.</b> That is complicated and depends upon a number of circumstances. It is best to consult with an attorney before withholding rent. <p><b>Q. I moved out and my landlord has not refunded my security deposit. What can I do? </b> <p><b>A.</b> After you have moved for thirty (30) days or more you are entitled to a refund of your security deposit or an itemized accounting from your landlord. The charges against the security deposit are controlled by the Landlord/Tenant Act. Your landlord can charge against the security deposit rent owed, damages and court cost, if any. The balance of your security deposit, after subtracting any legitimate charges, must be returned to you. NOTE: The information in this section is from the Legal Aid of North Carolina Website and can be found <a href='http://www.legalaidnc.org/client/housing/default.aspx' target="resource window">here. </a> <h4>Forms and Filing FAQ</h4> <p><b>Q. Where do I get the forms to file for small claims?</b> <p><b>A.</b> You can pick up the forms you need in a Small Claims packet provided by the Selfserve Center, located on the third floor of the Mecklenburg County Court House. <p><b>Q. How much does it cost to file a small claim?</b> <p><b>A.</b> The filing fee is $75.00 and is to be paid to the Clerk of Court at the time of filing. The method of payment required is cash or money order (no personal checks). If you cannot afford the court cost, you may ask the Clerk of Court if you can sign a form to proceed as an indigent without paying. <h4>Procedural FAQ</h4> <p><b>Q. When should I file the <b>Answer</b> or <b>Answer and Counterclaim</b> (in response to the landlord s Complaint)?</b> <p><b>A.</b> You should file your <b>Answer or Answer and Counterclaims</b> with the Clerk of Court no later than the day BEFORE your trial. If you need more time to prepare/fill out the document(s) you should file a <b>Motion for Continuance</b> no later than the day BEFORE your court (hearing) date. This is because your hearing may begin at 9am and the Clerk of Court doesn t open until 9am, and you don t want to be filing the paperwork and then showing up to court late, as the judge may rule in favor of the other party if you are absent from court. <p><b>Q. Will there be an actual court hearing? </b> <p><b>A.</b> Yes. The Civil Clerk of Court will assign the hearing date when the landlord files the Complaint for Summary Ejectment. The hearing will be 12 days after the <b>Complaint for Summary Ejectment</b> is filed. This date can be found on the bottom half of the page of the <b>Magistrate Summons</b> form you received with the <b>Complaint for Summary Ejectment</b>. You should file your <b>Answer or Answer and Counterclaim</b> no later than the day BEFORE your hearing date. On the hearing date, the file will be reviewed by the assigned judge. (WARNING: If you do not have enough time to file your Answer or Answer and Counterclaim on or BEFORE your hearing date, you should file a <b>Motion for Continuance</b> no later than the day BEFORE your hearing date so you can have a little more time to complete the appropriate forms before your case is heard by the judge. If you are served with the Complaint too late in the day to get to the Courthouse to file a <b>Motion for Continuance</b> you can request one at your hearing, but this should be a last resort.) What if I want to sue the landlord before the landlord has initiated any lawsuit against me? <p><b>Q. What do I do once I have filled out the Complaint?</b> <p><b>A.</b> Take the <b>Complaint</b> to the Clerk of Court and file all your paperwork. Once you have filed everything you will need to serve the defendant with a copy of the paperwork. North Carolina law does not permit a plaintiff to personally serve the defendant. Service of process must comply with Rule 4 of the North Carolina Rules of Civil Procedure. </p><p>There are three methods of service that may be used to serve the other party.</p> <ul> <li>The first method of service is referred to as personal service. The proper person to personally serve the other party of the action is a sheriff in the county where service is to be made or by a private process server appointed by the court. If personal service is to be made outside of the State, personal service may be completed by anyone who is not a party to the action and is not less than 21 years of age or anyone authorized by the law of the place where service is to be made. </li> <li>The second method of service is by certified mail, return receipt, restricted delivery. If this method is used, a copy of the summons and complaint must be mailed to the other party by registered or certified mail, return receipt requested addressed to the party to be served. </li> <li>The third method is referred to as notice of service of process by publication. This is a last resort method of service of process and should not be used unless the party cannot otherwise be served. To use this method a notice regarding the action is placed in the newspaper in the county where the defendant last resided. The notice shall be published once a week for a period of three consecutive weeks. This alternative method for service is technically more complicated than the other methods, so that it may be difficult to effectuate without the assistance of an attorney. Service by publication also increases the standard waiting period from thirty to forty days (measured from the date of the first newspaper notice). </li> </ul> <p><b>Q. What should I do when I cannot get the defendant served by one method of service?</b> <p><b>A.</b> You should attempt all other methods of service and/or attempt to obtain a new address for the defendant prior to using notice of service of process by publication as a method of service. <p><b>Q. What should I do if the defendant is not served within the initial 60 days of service?</b> <p><b>A.</b> If service is not completed within the initial 60 days after filing the complaint then the plaintiff must go to the Civil Clerk of Court and ask for an endorsement (extension). An endorsement gives you an additional 60 days to attempt to have the defendant served. The original file must be pulled and the clerk may issue an endorsement on the original summons. If you do not complete service of process within the first 90 days after filing, the Clerk s Office will automatically close your file on default. To prevent closure, you must keep your summons active. How this is accomplished depends on your method of service and the location of your original summons. When the original summons is in the court file: <ul> <li>1. You must go to the Civil Clerk of Court,</li> <li>2. Pull your small claims file, </li> <li>3. Get the original summons out of the file, and </li> <li>4. Ask the clerk to issue an endorsement. An endorsement gives you an additional 60 days to complete service </li> </ul> When the original summons is not in the court file: <ul> <li>1. Obtain a blank <b>summons</b> from the Civil Clerk of Court, the SelfServe Center, or from the <a href='http://www.nccourts.org' target="resource window">court website, </a> </li> <li>2. Write your name and address in the plaintiff s section and write the opposing party s name and address in the defendant s section of the summons</li> <li>3. Take the summons to the Civil Clerk of Court, pull your divorce file, and request that the clerk issue the summons.</li> </ul> If the date the Clerk issues the summons is within 90 days of the last preceding summons or within 90 days of the last prior endorsement, you should check the box labeled  Alias and Pluries on the summons. You must complete one of the two options as many times as necessary until service is complete.</p> <p><b>Q. What should I do if I do not have a serviceable address for the Defendant?</b> <p><b>A.</b> Attempt to locate a new address for the defendant through a process called <b>due diligence</b>. Due diligence is a series of tasks that the plaintiff must complete to prove to the court that he/she has done everything reasonable to obtain a serviceable address for the defendant. The process may include, but is not limited to, sheriff service, certified mail, conducting a department of motor vehicle s address history search in the state of the defendant s last known address, and/or checking the official sheriff or police website for detainee information. </p> <br> <!-- InstanceEndEditable --> </div> <div id="secondary"></div> <div id="additional"></div> <div id="localfooter"> I-CAN!&trade; Copyright © 2008 <a href="http://www.legal-aid.com" target="resource window"> Legal Aid Society of Orange County</a> </div> </div> <!--Beginning of the WSU Global Footer Zone. 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