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Tips for Defendants

1. Settlement: There are many opportunities for the defendant and the claimant to come to some sort of a settlement agreement. The defendant may not realize there is a dispute until they actually receive the Notice of Claim in the mail. However, they will probably be contacted by the other party regarding the dispute before they are sued. Defendants should correspond in writing to the claimant and try to come to a settlement. If they can reach a settlement, they should draw up a written settlement agreement and have it signed and notarized by both parties. If they pay out money, repair items or repeat services, they should document that in writing and have it signed and notarized as well. If they reach a settlement agreement after they are sued, then they should file the agreement with the small claims clerk.

2. Counterclaim: If the defendant wishes to assert monetary damages against the claimant, the defendant can bring a counterclaim. Up to five days after the defendant receives the Notice of Claim in the mail, the defendant can file a counterclaim with the small claims clerk by filling out a Notice of Counterclaim and paying $3.32. After five days have passed, the defendant can file a counterclaim on the court day or night for $3. If the counterclaim is filed on the court day or night, the claimant (or counter-defendant) will most likely ask for and be granted an adjournment so they can prepare a defense to the counterclaim.

3. Preparing and Presenting a Good Defense: The burden to make a small claims case is on the claimant. Essentially, the defendant could say nothing and still be found not liable for any damages. However, it is prudent for defendants to anticipate the claimant's case and to gather evidence and witness testimony to counter the claimant's argument. Defendants should also prepare a narrative and practice the presentation of their defense. If the defendant brings a counterclaim against the claimant (or counter-defendant), the defendant or counter-claimant has the burden of proving the counterclaim.

4. Vacating Default Judgments: Default judgments are typically entered against a defendant who has either arrived too late or has chosen not to go to a hearing at which he/she is being sued. If a default judgment has been entered against the defendant, the defendant can request that the court vacate the default judgment and set a new date to re-hear the claim. To vacate the default judgment, the defendant generally needs to file an Order to Show Cause form with the small claims clerk and demonstrate, with an attached Affidavit that there is a "meritorious defense" and an "excusable default."

5. Satisfying Judgments: Defendants (and Judgment Debtors) who are willing to pay judgments that have been awarded against them are often concerned that they will have no "proof" that they satisfied their small claims judgment. Clients in this situation should obtain an Affidavit Upon Payment of Judgment form, fill it out, have it notarized, keep a copy and file the form with the Small Claims Court.

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