How to file suit and complete Form.
1. Fill out a small claims complaint at the appropriate district court. A sample is located below and cannot be printed or filed in court. Type or use a ballpoint pen, pressing firmly and clearly. The Plaintiff will be provided with a copy of the form after it has been processed by court personnel. If filing the small claim on behalf of a business, please refer to the section entitled "Representation of Certain Corporations, Partnerships and Trusts." If filing the claim on behalf of another individual, the court will require a valid power of attorney before the claim will be accepted. District Court Rule 1.3 requires an affidavit which court staff may provide and which outlines the number of times the person filing has appeared in court on behalf of another as well as other information. Failure to provide the proper documentation will result in the claim being dismissed. To find which court covers your particular town, please click on the "Court Locations" link to the left.
2. Complete the Plaintiff section.
3. Enter a brief explanation of what happened including the factual basis for the claim. If additional sheets are necessary, extra copies should be included for the court to forward to the Defendant.
4. Enter the amount of money claimed; be sure to add the court cost on the line provided.
5. The person being sued is the Defendant. Fill in the exact name, address and zip code. NOTE: If suing a corporation the name and address of the corporate officer or the name and address of the registered agent must be provided. This information is available through the Secretary of State's Office at 603/271-3246.
Below is an example of a small claim complaint:
6. Complete a Military Affidavit, following instructions on reverse side of the form. If the military affidavit is not filed the court will not be able to issue a judgment if the Defendant fails to respond to the claim (defaults).
7. The filing fee is $72.00 if the claim does not exceed $5,000.00 If the claim exceeds $5,000.00 the filing fee is $127.00. Additional processing fees may be assessed pursuant to court rules.
8. Submit this to the court. Court personnel will send the Defendant a copy of the complaint by mail. If the Defendant resides out of state, service of the claim may be more complicated.
9. Within thirty (30) days of this mailing date, a hearing to contest the claim may be requested by the Defendant. When the hearing date has been scheduled, both parties will be notified of this hearing date by mail. If the amount of the claim exceeds $5,000.00 the court will schedule the case for a mediation session. Mediation is mandatory for claims in excess of $5,000.00 and the failure to appear for a mandatory mediation session may be considered a default and may result in a judgment against the defendant or dismissal of the plaintiff's claim. In addition, if the defendant has filed a counterclaim, a failure to appear may result in a judgment against the plaintiff on the defendant's counterclaim.
Below are the instructions to the Defendant attached to the reverse side of the Defendant's small claims copy.
10. If the defendant fails to reply to the claim or to request a hearing, the court may issue a default judgment in favor of the Plaintiff. If the claim is returned to the court as undelivered, the court will reissue the claim for service as in all other actions at law (i.e. via the Sheriff's Department). For defendants who reside out of state, reference is made to RSA 510:4. Service upon out of state defendants is not accomplished simply by forwarding the claim to an out of state sheriff, rather it is effected by service upon the New Hampshire Secretary of State, a registered mailing to the Defendant, and an affidavit filed with the court. The timing of these events is very important as held by the New Hampshire Supreme Court in the case of Impact Foods Sales, Inc. vs. Carl Evans d/b/a Warehouse Club Distributing Company. If the defendant fails to respond after being served by the Sheriff, the court will issue a default judgment in favor of the plaintiff. If the court issues a default judgment, the parties will be notified. This notice will be mailed to both parties and the defendant will have thirty (30) days to pay the claim in full.
11. Should the defendant wish to file a counterclaim, it should be filed as soon as possible once the claim is received. A filing fee of $72.00 will be required to file a counterclaim if the counterclaim does not exceed $5,000.00. A filing fee of $127.00 will be required to file a counterclaim in excess of $5,000.00.
12. If the claim exceeds $1500.00 or the title to real estate is involved, the defendant may request a trial by jury. The defendant will be required to check the appropriate box on the back of the Small Claim Complaint and return it to the court on/before the "return date" along with the transfer fee. This fee is the responsibility of the defendant.
Representation of Certain Corporations, Partnerships and Trusts.
- To the extent not inconsistent with court rules or as otherwise permitted by the court, corporations, partnerships, and trusts may be represented in any small claims action before a district court by an officer, employee, partner, owner or trustee who presents written authorization as follows:
- for a corporation, a resolution adopted by the board of directors.
- for a partnership, an authorization signed by all general partners.
- for a trust, an authorization signed by all trustees.
- The requirement for written authorization in paragraph one shall be met by a document signed by a duly authorized representative of the organization and containing a certificate of acknowledgement to the signature, authorizing the representation by a particular individual in a particular matter, and acknowledging that the organization shall be bound by any agreement entered into by such individual or any order of the court in the matter. Any such written authorization shall be presented to the court under oath by the representative.
For further information, please refer to RSA 503:11
- In addition to the documentation listed above, the court will also require an affidavit pursuant to District Court Rule 1.3. Court staff may have a form to use.
- The Court may deny representation by any individual it deems to be improper, inappropriate or unable to adequately represent the interests of the organization.
If the case is settled at any time the Plaintiff must so notify the court in writing.
Attachment - Pre-Judgment (before the case goes to trial)
A Plaintiff may now seek an attachment, or lien, upon the real estate of the Defendant or upon other property of the Defendant, even if held by others. Bank accounts are an example. To do so, the Plaintiff must file a Petition to Attach. There are two forms for the Petition to Attach: a Petition to Attach with Notice is used when the Defendant is to be notified of the request prior to the court taking action. An Ex Parte Petition to Attach is used in extraordinary circumstances when notice to the Defendant is, according to the Plaintiff, impossible, impractical or inadvisable. The court will charge a fee of $25.00 for an Ex Parte Petition to Attach. It is the Plaintiff's burden to establish the reason for not providing notice to the Defendant.
If the Plaintiff files a Petition to Attach with Notice OR if the Court grants an Ex Parte Petition to Attach and the Defendant files an objection to the Petition or attachment, the court will schedule a hearing to decide if the attachment will be made or if it will continue in place. That hearing will take place within 14 days.
Should the Court permit the attachment, court staff will prepare a document called a Writ of Attachment. This document is "served" by the sheriff upon the Registry of Deeds in the county where the Defendant's property is located. It is the Plaintiff's burden to see to it that the Writ of Attachment is served upon the Registry of Deeds, this is not done by the court. There will also be a cost for the sheriff to serve the Writ of Attachment and there may be additional costs at the Registry of Deeds.
If an attachment is made, it is equally important that the Plaintiff "discharge" or release the attachment if the Defendant wins the case or, if the Plaintiff wins, satisfies/pays the small claim. The Plaintiff must also see to it that the attachment is released if the parties reach a settlement. Court staff does not take care of this release nor does the court have a form for this. Parties may wish to consult either with an attorney for assistance or perhaps with the local Registry of Deeds for a form or simply a format for this discharge/release of the attachment.
A Petition to Attach, whether filed so as to provide the Defendant with notice or not, should be filed at the time the small claim complaint is filed but may be filed any point thereafter. It should not be filed before the filing of the small claim because the small claim complaint must be filed before it is served on the Defendant, which should happen at the same time the Petition to Attach is served. There is no additional fee for filing a Petition to Attach with Notice; however there is a fee of $25.00 to file an Ex Parte Petition to Attach. The Petition to Attach must be served upon the Defendant by a sheriff, so there will be added cost. If filed at the time the small claim complaint is filed then the small claim should be served as well, it would not be sent via first class mail. If filed after the small claim complaint has been filed, the Petition to Attach will have to be served by a sheriff separately.
If the Defendant files a written objection to the Petition to Attach or Ex Parte Attachment if granted, the court will schedule a hearing within 14 days to discuss the attachment. The hearing will likely be limited to that issue only; however you should review any notice of hearing received from the clerk's office carefully to see what is scheduled and contact the clerk's office should you have a question.
In addition, you may find further guidance in the District Court Rules, specifically Rule 3.4. While the process set forth in Rule 3.4 applies to "civil" cases and not to small claims, it is substantially similar.
When a hearing is requested.
- Gather all papers or documents that might have something to do with the case and take them to court. This is the only opportunity to present the case in district court.
- If the claim exceeds $5,000.00 the court will schedule the case for mandatory mediation. This is not a hearing on the merits before a judge; HOWEVER, you should review your scheduling notice from the court carefully. The court may schedule the hearing before the judge on the same day as the mediation in the event that mediation is unsuccessful.
- Arrange to bring any witnesses to the hearing on the merits when scheduled. Again, the court may schedule the hearing before the judge on the same day as the mediation session. If you have any questions about scheduling, contact the Clerk's office.
- The judge will hear both sides of the case and make a decision usually within fourteen days.
- If the defendant does not appear for the hearing, the Plaintiff may be granted judgment by default.
- If the Plaintiff fails to appear at the hearing, the case will be dismissed.
- If either party fails to appear for a mandatory mediation session (again, mediation is mandatory only for claims in excess of $5,000.00) then the party who fails to appear may be defaulted. This means that the defendant may have a judgment issued against him/her or a plaintiff may have the case dismissed and, should the defendant also have filed a counterclaim, may have a judgment issued on the counterclaim.
Either party can appeal the decision of the case, on issues of law only, by filing a notice of appeal with the New Hampshire Supreme Court. There is a fee for this process, and the appealing party should contact that court directly.
What if there is no payment?
- If the judgment is for the Plaintiff, the Plaintiff moves to the collection process. The Defendant may pay voluntarily. If the Defendant has no money or property, or is out of state, the Plaintiff may have difficulty collecting the judgment.
- After thirty days from the date of the written decision the Plaintiff may request a "Motion for Periodic Payments" hearing by filing a Motion for Periodic Payments. A fee of $25.00 will be charged to file this document. The required form must be completed and filed with the court along with the filing fee. The Plaintiff must mail the pink copy of this form to the Defendant.
- The court will schedule a hearing on this request and return the paperwork to the Plaintiff to make service. The Plaintiff must carefully follow the instructions which will accompany this form. If the Defendant is not served with notice of the hearing, the Plaintiff will have to request rescheduling. There is a $25.00 fee required for the court to reissue orders of notice when a hearing must be rescheduled.
- Some courts require the Plaintiff to appear at the payment hearing. If the Plaintiff fails to appear, the Plaintiff cannot contest the Defendants statements with regard to ability to make payments or review the financial affidavit which the Defendant filled out for the court.
- The judge may order the Defendant to pay a lump sum, or make weekly or monthly payments depending on the Defendants financial situation.
- If the Defendant fails to appear at this hearing and proper service has been made, the Plaintiff may request that a civil arrest warrant be prepared and forwarded to the Sheriffs Department for service.
- If the Court issues an order for payments and the Defendant fails to comply, the Plaintiff may choose to file an "Affidavit of Non-Compliance", for which there is no filing fee and which seeks to have the Defendant held in contempt. The clerk's office will issue an "order of notice" for a hearing which is returned to the Plaintiff for proper service upon the Defendant.
- A judgment is good for twenty years provided periodic review of the matter is sought no less than every two years.