RULE TITLE AND SCOPE

Transcription

1 RULE TITLE AND SCOPE (a) Title. These rules shall be cited as Florida Small Claims Rules and may be abbreviated Fla. Sm. Cl. R. These rules shall be construed to implement the simple, speedy, and inexpensive trial of actions at law in county courts. (b) Scope. These rules are applicable to all actions at law of a civil nature in the county courts in which thecontain a demand for money or value of property involved, the value of which does not exceed $5,000 exclusive of costs, interest, and attorneys fees. If there is a difference between the time period prescribed by these rules and section , Florida Statutes, the statutory provision shall govern. Committee Notes 1978 Amendment. The addition to (b) is designed to eliminate confusion caused by denomination of section , Florida Statutes, as Summary Procedure Amendment. Subdivision (b) is amended to clarify that the Florida Small Claims Rules apply to a claim for money or property even when expressed as, or coupled with, a claim for equitable relief. State Farm Mutual Automobile Insurance Company v. Green, 579 So. 2d 402 (Fla. 5 DCA 1991). Appendix B-1

2 RULE CLAIM COMMENCEMENT OF ACTION; STATEMENT OF (a) Commencement. (1) Statement of Claim. Actions are commenced by the filing of a statement of claim in concise form, which shall inform the defendant of the basis and the amount of the claim. If the claim is based on a written document, a copy or the material part thereof shall be attached to the statement of claim. All documents served upon the defendant with initial process shall be filed with the court. (2) Party Not Represented by Attorney to Sign. A party, individual, or corporationbusiness entity recognized under Florida law who or which has no attorney handling such cause shall sign that party s statement of claim or other paper and state that party s address and telephone number, including area code, and may include an address. However, if the trial court in its discretion determines that the plaintiff is engaged in the business of collecting claims and holds such claim being sued upon by purchase, assignment, or management arrangement in the operation of such business, the court may require that corporationbusiness entity to provide counsel in the prosecution of the cause. A corporation may be represented at any stage of the trial court proceedings by an officer of the corporation or any employee authorized in writing by an officer of the corporation. Any business entity recognized under Florida law may be represented at any stage of the trial court proceedings by any principal of the business entity who has legal authority to bind the business entity or any employee authorized in writing by a principal of the business entity. A principal is defined as being an officer, member, managing member, or partner of the business entity. (b) Parties. The names, addresses, and, if known, telephone numbers, including area code, of all parties or their attorneys, if any, must be stated on the statement of claim. A party not represented by an attorney may include an address. Additionally, attorneys must include their Florida Bar number on all papers filed with the court, as well as an address, in compliance with the Florida Rules of Judicial Administration. A statement of claim shall not be subject to dismissal for the failure to include a telephone number. (c) Clerk s Duties. The clerk shall assist in the preparation of a statement of claim and other papers to be filed in the action at the request of any litigant. The clerk shall not be required to prepare papers on constructive service, substituted service, proceedings supplementary to execution, or discovery procedures. Appendix B-2

3 (d) Memorandum on Hearing Date. The court shall furnish all parties with a memorandum of the day and hour set for the hearing. (e) Replevin. In those replevin cases to which these rules are applicable, the clerk of the county court shall set the hearing required by section (2)(a), Florida Statutes (prejudgment replevin order to show cause hearings) and rule 7.050(d) (pretrial conferences) at the same time. Committee Notes 1988 Amendment. Subdivision (a)(2): To clarify who may appear and represent a corporation in a small claims case. Subdivision (b): First sentence is to conform Florida Small Claims Rules with Florida Rules of Judicial Administration 2.060(d) and 2.060(e). Second sentence is to conform to proposed amendment to rules of judicial administration. Subdivision (e): Require that the order to show cause hearing required in small claims replevin cases and the pretrial conference required by the small claims rules be held at the same time to save time and avoid confusion Amendment. A sentence is added to subdivision (a)(1) to ensure that the courts have access to all documents served with initial process Amendment. Subdivision (b) is amended to clarify that a party is required to list an opposing party s telephone number only if that telephone number is known. Additionally, the rule is amended to clarify that the requirement of including a telephone number is not grounds for dismissal. Court Commentary 1972 Amendment. The statement of claim need not be verified. Subdivision (c) is amended so as to provide that the clerk shall not be required to prepare papers on substituted service. Appendix B-3

4 RULE TRIAL (a) (b) summarily. Time. The trial date shall be set by the court at the pretrial conference. Determination. Issues shall be settled and motions determined (c) Pretrial. The pretrial conference should narrow contested factual issues. The case may proceed to trial with the consent of both parties. (d) Settlement. At any time before judgment, the judge shall make an effort to assist the parties in settling the controversy by conciliation or compromise. (e) Unrepresented Parties. In an effort to further the proceedings and in the interest of securing substantial justice, the court shall assist any party not represented by an attorney on: (1) courtroom decorum; (2) order of presentation of material evidence; and (3) handling private information. The court may not instruct any party not represented by an attorney on accepted rules of law. The court shall not act as an advocate for a party. (f) How Conducted. The trial may be conducted informally but with decorum befitting a court of justice. The rules of evidence applicable to trial of civil actions apply but are to be liberally construed. At the discretion of the court, testimony of any party or witness may be presented over the telephone. Additionally, at the discretion of the court an attorney may represent a party or witness over the telephone without being physically present before the court. Any witness utilizing the privilege of testimony by telephone as permitted in this rule shall be treated for all purposes as a live witness, and shall not receive any relaxation of evidentiary rules or other special allowance. A witness may not testify over the telephone in order to avoid either the application of Florida s perjury laws or the rules of evidence. Committee Notes Appendix B-4

5 1984 Amendment. (a) Changed to conform this rule with the requirement for pretrials. (c) Allows the cases to proceed to trial with consent of the parties. (f) This is similar to the proposed amendment to the Florida Rules of Civil Procedure to allow depositions by telephone. Since the court has discretion to allow this testimony, all procedural safeguards could be maintained by the court. Since the court is also the trier of fact, the testimony could be rejected if unreliable Amendment. Extends the taking of testimony over the telephone to include parties, deletes the agreement of the parties provision, and adds authorization for an attorney to represent a party or witness over the telephone without being physically present before the court Amendment. The revised version of subdivision (e) addresses the need to expressly provide that the judge, while able to assist an unrepresented party, should not act as an advocate for that party Amendment. Subdivision (e)(3) was added so that a judge can assist an unrepresented party in the handling of private information that might otherwise inadvertently become public by placement in the court file. Appendix B-5

6 RULE INFORMATION FOR HOLDERS OF A FINAL JUDGMENT The following brochure shares pertinent information for holders of final judgments. Court personnel are encouraged to share this brochure with appropriate parties. The Following Information May Help You To Collect Your Judgment PLEASE UNDERSTAND THAT JUDGES, JUDCIAL ASSISTANTS, CLERKS OF COURT AND THE SHERIFF S OFFICE CANNOT PRACTICE LAW OR GIVE LEGAL ADVICE. The clerk and the judge cannot take any steps on their own to assist you in the collection of your final judgment. This is your responsibility. The judge may approve certain actions that you ask permission to use and the clerk s office may have forms available, but at no time will they give advice as to whether a particular step is a good idea. THIS WOULD BE CONSIDERED LEGAL ADVICE AND ONLY A LAWYER CAN GIVE LEGAL ADVICE. 1. FINAL JUDGMENT. The Final Judgment itself must contain the address of the Defendant. A certified copy of the final judgment should be recorded with the clerk in any county where you think a Defendant owns property. This certified copy must be rerecorded within seven years and this may be done three times. Therefore the effective life of the judgment can be as long as 20 years. 2. CONTACT DEFENDANT. After you have obtained a final judgment against a Defendant, a Defendant might not automatically pay this judgment and you may be forced to take further steps on your own. Initially, you should contact the Defendant directly, preferably in writing, and give them a period of time, perhaps thirty (30) days, to make arrangements to pay the judgment. 3. REOPEN FEES. After a Final Judgment is obtained, the Clerk of Court may consider that a case is closed in its file system. To proceed with collections procedures, the clerk may charge you a reopen fee, usually about $50.00, to begin collection proceedings. You should speak with the clerk to see when they consider the case is closed in your county. 4. FACT INFORMATION SHEET. When obtaining a judgment, or afterwards, you may wish to request the judge to order the Defendant to fill out a Fact Information Sheet, which may reveal potentially significant financial Appendix B-6

7 information. The clerk should have available a form Motion and Order requiring completion of this form available for your submission to the court. 5. HEARING IN AID OF EXECUTION. As an alternative, you can ask for a Hearing in Aid of Execution in which you ask that a Defendant be required to appear at a hearing and bring information concerning his or her earnings, financial status and assets to the Court. The clerk may have a form for this procedure as well. 6. SEARCHING ON YOUR OWN. You also may want to search on your own for assets of the Defendant. There are asset search companies, which you can locate on the internet or in the local phone book that will search for this information, usually for a fee. You also may want to check the County property appraiser s office for any land that the Defendant may own. You could also check the county clerk s Official Records to see if there are any land deeds involving the Defendant. You could also inquire with the state s Division of Corporations and search whether there are any corporations or other entities which are, or may be, owned by the Defendant ( You may also search for vehicles owned by the Defendant through the Florida Department of Highway Safety and Motor Vehicles. To obtain further information from the DHSMV, call DEPOSITION IN AID OF EXECUTION. Another way to locate the debtor s property is a deposition in aid of execution. A deposition is a method in which the debtor is subpoenaed to appear before a court reporter or notary public and made to answer questions under oath about his or her property. This procedure is complicated and you may wish to consult with a lawyer for more details. 8. LEVY OF PROPERTY. If you wish to try to seize tangible property owned by a Defendant, this is called a levy on the property. After the Final Judgment is obtained and the time for appeal is passed, upon your request, the Clerk of the Court will issue a Writ of Execution and this writ should be docketed with (sent to) the county sheriff. There is a clerk s fee for this. It is possible there are other persons who have already docketed a Writ of Execution concerning this Defendant with that sheriff. If any property is seized, the sheriff will have a public sale and pay monies obtained to persons in the order that the Writs of Execution were docketed with its office. If you become aware of tangible property for the sheriff to seize and you have docketed your Writ of Execution with the sheriff, you should speak with the Appendix B-7

8 Civil Process Unit of the county sheriff's office about the procedure for seizure of the property. There will be a fee for each seizure and each county charges a different fee. 9. GARNISHMENT. A Garnishment is a request to seize property belonging to a Defendant that is held by a third party. This is usually used for seizing bank accounts and a defendant s wages. The clerk should have a form for a Motion for Writ of Garnishment. This motion will ask you to identify the particular person or company that has monies to be garnished. The Writ will ask those holding the money to identify the property and state whether anyone else has claims to same. After an answer has been filed from the Garnishee, within five days you will need to send a Notice to the Defendant including copies of this garnishment writ, the answer and a form for an exemption request that the Clerk will provide. The Defendant has 20 days to object to the garnishment and if they do not, the garnished amounts will be paid to you. 10. POTENTIAL EXEMPTIONS. Under Florida law there are numerous exemptions to levying and garnishment of property. These include, but are not limited to: homestead property, wages of a head of household, disability benefits, retirement accounts, assets owned jointly by husband and wife, among others too numerous to detail here. The burden is on a defendant to show he or she is entitled to any of these exemptions. A lawyer should be contacted if you have questions about possible exemptions. 11. BANKRUPTCY. Occasionally during the collections process, a Defendant will file bankruptcy. This bankruptcy is filed in an entirely separate Court and if you receive a Notice of Bankruptcy, you should immediately stop all collection efforts and consult with an attorney. 12. SATISFACTION OF JUDGMENT. If your collection efforts are successful and the judgment is paid off, you should complete and file a Satisfaction of Judgment in the court file of the county where the judgment was obtained. The court clerk should have this form available. It is impossible in this brief statement to explain all of your rights and obligations upon obtaining a court judgment and this form is meant only to give you a basic understanding of your judgment and the possible means to collect it. This brochure is intended merely as a guide to some of the various steps that may be available for your benefit. There are other potential avenues available under Florida law. You should not rely upon this brochure as advice as to what Appendix B-8

9 course to take or not take, as the most appropriate steps will differ in each circumstance. Instead, you should seek legal counsel to decide which, if any, of these is best suited to your circumstance. Appendix B-9

10 FORM STATEMENT OF CLAIM FOR REPLEVIN (FOR RETURN OF PERSONAL PROPERTY/WEAPON FROM GOVERNMENT ENTITY) (CAPTION) STATEMENT OF CLAIMS FOR REPLEVIN Plaintiff(s).. sues Defendant(s) and alleges: 1. This is an action to recover possession of personal property. 2. The description of the property is: 3. To Plaintiff s best knowledge, information, and belief the value of the property is $... and its location is.. 4. Plaintiff is the owner of the claimed property or is entitled to possession of it by virtue of the following source of title, or right of possession: (If interest is based on a written instrument a copy is attached.) 5. The property cannot be released by the defendant without a court order, or the property is wrongfully detained by the defendant who obtained possession by:. 6. To Plaintiff s best knowledge, information, and belief, defendant detains property because: Appendix B-10

11 7. The property has not been taken for any tax, assessment, or fine pursuant to law, nor has it been taken under an execution or attachment against plaintiff s property, or if so taken, it is by law exempt from such taking by the following reference to the exemption law relied upon: 8. Written demand for return of the property was provided to Defendant and [if Defendant is not a municipality] also to the Department of Financial Services at least 90 days prior to the filing of this Complaint. Section (6)(a), Florida Statutes. A copy of the demand is attached hereto. 9. The property is not contraband, was not the fruit of criminal activity, and is not being held for some evidentiary purposes. 10. The property came into possession of Defendant on or about..(date) Plaintiff has the legal right to possess the property and is not subject to any legal prohibition against such possession. Pursuant to section , Florida Statutes, under penalties of perjury, I declare that I have read the foregoing Statement of Claim and the facts stated in it are true. Plaintiff NOTE: This form is to be used by those seeking return of personal property (including weapons) taken by a government entity for purposes other than for a criminal investigation, as an incident to arrest, pursuant to a search warrant, or any other seizure for which the Florida Statutes provide a specific procedure for return. Rather, this form is for use by those who seek return of personal property taken for other purposes, such as safekeeping, and for which the Florida Statutes provide no procedures. Appendix B-11

12 FORM CORPORATE AUTHORIZATION TO ALLOW EMPLOYEE TO REPRESENT CORPORATIONBUSINESS ENTITY AT ANY STAGE OF LAWSUIT (Caption)(CAPTION) AUTHORIZATION OF CORPORATE OFFICER...(name)... is an employee of...(name of corporationbusiness entity under Florida law that is a party to this action)... This individual has authority to represent the corporationbusiness entity at any stage of the trial court proceedings, including mediation. The undersigned giving the authority is an officer of the corporationa principal of the business entity. Pursuant to section , Florida Statutes, under penalties of perjury, I declare that I have read the foregoing Corporate Authorization and that the facts stated in it are true. Dated:... SIGNING AUTHORITY: Print name and title:... (president; vice-president; secretary; treasurer) Address: Phone number:... I certify that a copy of this form has been furnished to [list all parties to this action] by...(hand delivery/mail/fax)... on...(date)... Appendix B-12

13 Name and title:... Editor s Note: West s Florida Rules of Court State (2012 Revised Edition) has the title for Fla. R. Sm. Cl. R. Form incorrectly published as Corporation at any Stage of Lawsuit. The correct rule title is Corporate Authorization to allow employee to Represent Corporation at any Stage of Lawsuit, (In re Amendments to the Florida Small Claims Rules, 931 So. 2d 78 (Fla. 2006)). Appendix B-13