Suing on a Broken Agreement in Small Claims Court (FAQ)
You can sue someone in Small Claims Court if they broke their agreement with you. You need to sue the person who broke the agreement in the Montana County where that person is located. This article will help you learn:
- The process for the lawsuit
- What you must do before you sue
- When you can file in Small Claims Court
- How to file the lawsuit.
If you made the agreement outside of the State of Montana, this article is not right for you and you’ll want to find legal help in the state where you made the agreement.
The person who starts a lawsuit in Small Claims is called the Plaintiff. The other party is the Defendant. Small Claims Court is designed for people to represent themselves without a lawyer. Small Claims Court can handle cases where the Plaintiff is asking for less than $7,000. If you have any questions about Small Claims Court, you can ask a lawyer, but they may not be able to represent you in your hearing.
What is the process for a Small Claims lawsuit?
Here is the basic process for a Small Claims lawsuit. Depending on the facts of the case, it may be different:
- The first step is for the Plaintiff to send a Demand Letter to the Defendant. The Plaintiff must send a demand letter before going to Court, or the Judge may dismiss the case.
- You must give the other side a reasonable time to respond to the demand letter. 14 days is usually a reasonable time.
- If you don’t agree with the response to the demand letter, or do not get a response within 14 days, you may file a Complaint with the Clerk of Justice Court. Ask to file the Complaint with the Small Claims Division. You must swear that the Complaint is true before the Clerk of Court.
- You must pay a fee to file papers with the Court. If you cannot afford the fee, you can file paperwork to ask the Court to let you file without paying the fee.
- You must serve the other party with a copy of the Complaint that you filed and the Order for a Hearing. The Clerk of Court will give you an Order for Hearing when you file the Complaint.
- The Court will schedule a Hearing within 10 to 40 days after you file the Complaint.
- The other party may file a Counterclaim. A counterclaim is not required. If the other party chooses to file a Counterclaim they must file it at least 72 hours before the date of the Hearing. In a Counterclaim the other side will say that you owe them money. Unlike other courts, in Small Claims Court, the other party does not file an Answer.
- The Court holds a hearing and the Judge will decide based on the law and information the parties present during the hearing.
How do I send a Demand Letter?
You don’t need a special form to send a demand letter. You may write it yourself. Your demand letter should be polite and explain exactly what you want. It is a good idea to pay a little extra for a certificate of mailing. A certificate of mailing shows you sent the letter when you said you did. The Postal Service doesn’t keep a copy of the certificate of mailing. Be sure to keep your copy.
Sending the demand letter using Certified Return Receipt can show when the person actually got the letter. But, it does not always work because the other party could refuse to pick up the letter.
What if the Demand Letter doesn’t work?
You may be able to fix the problem you have with the other party by sending a demand letter. If the demand letter doesn’t work, you may file a Complaint in Small Claims Court.
When can you file in Small Claims?
There are 5 important rules about what kind of cases can be filed in Small Claims Court:
- You must send a Demand Letter and give the other party a reasonable amount of time to respond before you file.
- You have a limited amount of time to file. How much time you have depends on whether the agreement or contract was in writing. If it was in writing, you have 8 years to file your case. If the agreement was not in writing, the time limit is 5 years. Also, there are some kinds of obligations that have only a 3-year time limit. You start counting the time when there is a violation of the contract. Often the violation happens when the other person refuses to pay, or stops making payments. If you file a case after the time limit to sue has passed, then the Court may dismiss the case.
- You can sue for $7,000 or less in Small Claims. If you think the other party owes you more than $7,000, you will need to file in a different court. If you think the other party owes you less than $12,000, Justice Court is often the best choice. If you think the other party owes you more than $12,000, you will most likely file your case in Montana District Court. You may want to talk to an attorney before you decide what court to file your case in.
- You may not have a lawyer represent you. Small Claims Court is designed for people to represent themselves without a lawyer. The only exception is if both parties have a lawyer to represent them.
- If you sue a corporation, partnership, or some other kind of organization, the organization may choose to hire an attorney and move the case to Justice Court. The organization could also choose to have a member or officer of the organization represent the organization in Small Claims Court.
There are more rules for Small Claims Court. You may want to read the Key Differences between Civil Complaint and Small Claims Court. You might also want to check out the Montana Department of Justice’s Guide to Small Claims Court.
How do I file a lawsuit in Small Claims Court?
Here is a summary of the steps to file a Complaint in Small Claims:
- Make sure Small Claims Court is right for your case (see above)
- Complete the paperwork using a free Complaint for Small Claims Court form
- Complete the paperwork to ask the Court to waive the fee if you cannot afford the Court filing fee
- You must file the paperwork asking the Court to waive the fee before you can file the Complaint. File that paperwork with the Clerk of Justice Court. Ask for the Small Claims Division. The Judge will decide whether to let you file without paying the fee.
- File your Complaint with the Clerk of Justice Court. Ask for the Small Claims Division.
What do I put in my Small Claims Complaint?
The Plaintiff is the one the files the Complaint. When you fill out your Complaint it is important to tell the Court that you had an agreement or contract. If the agreement or contract was in writing you should attach a copy of the agreement or contract to your Complaint. In your Complaint you should tell the court:
- Who was part of the agreement,
- What the agreement was for,
- When the agreement was made,
- Who did not do their part of the agreement, and
- What you want the court to do to fix the problem.
You should be as specific as possible. You don’t need to try to sound like a lawyer in your Complaint. For example, you could file a Complaint that says:
“I made a deal with Bob Smith on May 15, 2019. I paid Bob $100 so he could buy the parts and fix my Stihl chainsaw. Bob promised to fix the chainsaw by June 3, 2019. I also gave Bob the chainsaw to fix. Bob did not fix the chainsaw. Bob won’t give me back the chainsaw or the $100. I sent Bob a letter on June 17, 2019 asking him to give me back the chainsaw and the $100. I have attached a copy of that letter to this complaint. He told me he would not give back the chainsaw. I want the court to make Bob give me back my chainsaw and my $100.”
How do I file a Counterclaim in Small Claims Court?
The Defendant may file a Counterclaim. A Counterclaim tells the Court that the Defendant thinks the Plaintiff owes the Defendant money. The Defendant must file the Counterclaim at least 72 hours before the hearing. You can find a free Counterclaim form on the Montana Judicial Branch’s website.
A Counterclaim is just like a Complaint except that the Defendant files a Counterclaim after being served with the Plaintiff’s complaint. The Judge will decide on the Complaint and the Counterclaim at the same hearing.
- The State Bar Lawyer Referral Service may provide you with contact information for attorneys who provide the type of assistance you are seeking, for a fee. You can contact the State Bar Lawyer Referral Service at (406) 449-6577 or montanabar.org.
- Montana Legal Services Association (MLSA) provides free civil, non-criminal legal help to eligible clients. Learn more about how to apply for free legal help in Montana.
- If you qualify for help from MLSA, you may be able to get free legal advice from a volunteer attorney by email using Ask Karla.
- Contact your nearest Self Help Law Center for free legal information and forms.
- Both the Plaintiff and Defendant may use the Small Claims Court Checklist
- Find the free Small Claims Complaint form to start a lawsuit
- Find the free Small Claims Counterclaim form if you are the Defendant