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Circuit Court District Division Rules Table of Contents

RULES OF THE CIRCUIT COURT OF THE STATE OF NEW HAMPSHIRE -- DISTRICT DIVISION

SMALL CLAIMS ACTIONS PILOT RULES TO ACCOMPANY THE ELECTRONIC FILING PILOT RULES

  PREAMBLE

Pursuant to the authority conferred by Part II, Article 73-a of the New Hampshire Constitution, the Supreme Court of New Hampshire hereby adopts on a temporary basis the attached Small Claims Actions Pilot Rules to Accompany the Electronic Filing PilotRules. These rules shall take effect in a particular court location as of the date set forth in an administrative order by the administrative judge of the circuit court implementing small claims e-filing in the circuit court – district division in a particular location, and shall apply on a pilot basis to small claims actions in the circuit court – district division in those locations. For a list of the locations in which electronic filing will be, or has been implemented, and a link to the relevant orders, see http://www.courts.state.nh.us/circuitcourt/efilingcourts.htm.

  Rule 4.1. Filing Small Claim Complaint

(a) The Claim

(1)  Small claim cases shall be filed electronically as required under the New Hampshire Circuit Court – District Division Small Claims Electronic Filing Pilot Rules unless an exemption to electronic filing as allowed under the Rules is requested and granted.

(2)  A small claim shall be set forth on a court generated Small Claim Complaint form. It shall not be considered filed until the fee has been paid or a properly supported motion to waive filing fee has been submitted. (See District Division Rule 3.3 for filing fees.)

(3)  The small claims filing fee shall not be waived except upon presentation of facts which demonstrate extraordinary circumstances.

(4)  The claim must include:

(A) The business or other relationship between the plaintiff and defendant and a description setting forth with specificity the reason(s) the plaintiff believes that the defendant owes money to the plaintiff;

(B) The amount that the plaintiff claims that the defendant owes. NOTE: If the plaintiff claims to be owed more than $7,500.00, the filing of the small claim complaint will waive any amount due beyond the small claims limit of $7,500.00. If the plaintiff does not want to waive the amount over $7,500.00, a civil writ must be filed instead of a small claim;

(C) If the basis for recovery asserted in the small claim complaint is the extension of consumer credit, the plaintiff shall file a Statement of Consumer Debt which provides the following:

(i)  If the plaintiff is a person or entity other than the original creditor, a statement that the plaintiff has a right to assert the claim and a listing of all prior owners of the claim commencing with the original creditor;

(ii) The account number/account identifier, if any, assigned to the obligation. The account number/account identifier shall be redacted to show only the last four digits;

(iii) The date of the last payment made, if any;

(iv) A designation of principal, interest, charges and fees calculated either in accordance with the laws applicable to the obligation or in accordance with the practice in credit card cases of treating the charge off balance as principal and itemizing any additional interest or fees after that date.

(b) The Parties

(1) The following information shall be included in the small claim filing:

(A) Name, address (residence and mailing) and date of birth of the plaintiff(s). The date of birth shall be submitted on the Small Claim Confidential Information Sheet and shall be confidential as to non-parties to comply with the New Hampshire Circuit Court - District Division Small Claims Electronic Filing Pilot Rules. Access to these documents shall be pursuant to District Division Rule 1.26;

(B) Name, address (residence and mailing) of the defendant(s);

(C) If the plaintiff is a business entity, the nature of the business entity;

(D) If the defendant is a business entity:

(i)  The nature of the business entity; and

(ii) The individual who is to be served with the small claim and the capacity in which that individual is to be served (e.g. agent for service, corporate officer, member, manager, owner) and that individual's address (physical and mailing) if different from that of the business entity.

(2) A person who files or responds to a small claim on behalf of another individual or entity must file the statement required by District Division Rule 1.3(D). In addition, one of the following authorizations must be filed with the court:

(A) For an individual acting on behalf of another, a power of attorney or other valid authorizing document authorizing the filing of legal actions; or

(B) For an individual acting on behalf of an entity:

(i) For a corporation, a resolution adopted by the board of directors;

(ii) For a partnership, an authorization signed by a general partner;

(iii) For a trust, an authorization signed by a trustee;

(iv) For a limited liability company, an authorization signed by a member with management authority. (See also RSA 503:11.)

(C)The requirements of this paragraph (2) do not apply to attorneys who are licensed to practice law in the State of New Hampshire

Rule 4.2. Notice

(a)  Unless the plaintiff is seeking a pre-judgment attachment (See Rule 4.13) upon the filing of a small claim, the court shall send written notice of the claim to the defendant via first class mail. The notice shall be sent to the defendant's mailing address as provided by the plaintiff. If there are multiple defendants, written notice of the small claim shall be sent to each defendant.

(b)  If the notice is returned to the court as undeliverable by the United States Postal Service, the court shall provide notice to the plaintiff that a new or alternate address is required for the defendant. If the plaintiff provides an alternate mailing address for the defendant, the court shall forward the new notice to the defendant via first class mail. If the plaintiff does not provide an alternate mailing address, the plaintiff may request that the claim be served as in all other actions at law (see RSA 510:2, et seq.), and the court shall deliver the new notice to the plaintiff. It shall be the responsibility of the plaintiff to ensure that proper service is made upon the defendant and that proof of service is filed with the court thereafter. In all notices, the court shall set a date by which the defendant must respond.

(c)  If the notice is returned as undeliverable and the plaintiff does not provide a new mailing address or request alternative service pursuant to RSA 510 within sixty (60) days of the court's notification, the action shall be dismissed.

(d)  If the plaintiff is requesting a pre-judgment attachment of the defendant's property, the notice and the attachment request and any order shall be served according to Rule 4.13 below.

Rule 4.3. Responding to Small Claim Complaint or Counterclaim

(a)  Response

(1) The defendant shall file a court generated Response to Small Claim form electronically, as required under the New Hampshire Circuit Court - District Division Small Claims Electronic Filing Pilot Rules. When the defendant is served by first class mail, the response shall be filed by the date indicated on the notice which shall be thirty (30) days from the date the court mails the notice, or if the defendant is served as in all other actions at law the response shall be filed by the return date selected by the court which shall be not less than 45 days from the date the court forwards the notice to the plaintiff for service.

(2)  The response shall include the name, address (residence and mailing) and date of birth of the defendant(s). The date of birth shall be submitted on the Small Claim Confidential Information Sheet and shall be confidential as to non-parties to comply with the New Hampshire Circuit Court - District Division Small Claims Electronic Filing Pilot Rules. Access to these documents shall be pursuant to District Division Rule 1.26. If the response includes a request for a hearing, the defendant shall indicate the amount of the claim which is not in dispute and provide a brief explanation of the basis for the amount in dispute.

(3)  If the defendant is filing a response on behalf of another individual or entity, the defendant must comply with Rule 4.1(b)(2).

(b)  Demand for Jury Trial. When the debt or damages claimed exceed $1,500.00, the defendant may claim trial by jury pursuant to RSA 503:1 III within the time allowed by statute or at the same time as the filing of a timely response. The small claims transfer fee shall be paid by the defendant at the time the request is made.

(c) Failure to Respond. If the defendant fails to file a timely response, upon the filing by the plaintiff of a Military Statement and any other documents required by the court, a default judgment may be issued for the plaintiff.

(d) Counterclaim

(1)  Any claim that the defendant wishes to file against the plaintiff that is related to the plaintiff's claim is known as a counterclaim and may be filed with the defendant's response, but shall be filed no later than the return date indicated on the original notice. If the defendant fails to file a counterclaim with the response or before the return date selected by the court, the defendant may file a request with the court to allow a late counterclaim, which may be granted only upon good cause shown.

(2)  A counterclaim shall not be considered filed until the filing fee has been paid or a properly supported motion to waive filing fee has been submitted. (See District Division Rule 3.3 for filing fees.)

(e) Response to Counterclaim. The plaintiff is not required to respond to a counterclaim. When the debt or damages claimed in the counterclaim exceeds $1500.00, the plaintiff may claim trial by jury pursuant to RSA 503:1, III within the time allowed by statute but in no event later than 14 days from the date that the counterclaim is filed with the court. For good cause shown, the court may permit a request for transfer to Superior Court to be filed after the 14 day limitation. The small claim transfer fee shall be paid by the plaintiff at the time the request is made.

  Rule 4.4. Pre-trial hearing

(a)  In every small claim case in which the defendant has filed a timely response requesting a hearing, the court may schedule a pre-trial hearing.

(b)  Attendance at the pre-trial hearing shall be mandatory. Anyone appearing on behalf of another, including an attorney, will be expected to have settlement authority or telephonic access to the represented party. Failure by either party to attend the pre-trial hearing shall result in a judgment in favor of the other party. If neither party appears at the pre-trial hearing, the case shall be dismissed. A default judgment shall not be stricken except upon a finding of good cause by the court.

(c)  The court will provide the opportunity for parties to mediate on the day of the pre-trial hearing. The court may require parties in cases subject to mandatory mediation to mediate on the day of the pre-trial hearing or on a later date. If the parties reach an agreement, the agreement shall contain an acknowledgement that they understand that exempt income and assets may not be used in the enforcement of any judgment or agreement, and that failure to comply with the terms of the agreement may result in the matter being returned to the court's docket for a hearing as may be necessary.

(d)  If a pre-judgment attachment has been requested or if an attachment has been granted on an ex parte basis and the defendant has filed an objection, the court may schedule a hearing on the attachment at the time of the pre-trial hearing. If the court schedules the attachment hearing to be held on the same date as the pre-trial hearing, the parties will be notified by the court.

(e)  As a result of the pre-trial hearing, the court will make pre-trial orders on all issues deemed appropriate and schedule the trial.

(f)  Parties are not required to bring witnesses or evidence to the pre-trial hearing. Parties may bring evidence which would be helpful during any discussion between the parties, including mediation.

Rule 4.5. Discovery and Rules of Evidence

  Formal discovery, such as interrogatories, depositions, requests to produce documents, requests for admissions and other forms of discovery are not permitted in small claims cases unless ordered at the pre-trial hearing. The Rules of Evidence shall not apply in small claims cases.

Rule 4.6. Trial

(a)  The trial in small claims cases shall be informal. All parties shall be required to take an oath or affirmation but may be permitted to testify informally. The court may hear the case by offers from each of the parties as to what their evidence would prove if the court were to hear all witnesses and documents submitted. However, either party has the right to object to this procedure.

(b)  Parties shall bring to the trial all witnesses, documents or other evidence upon which they intend to rely to prove or defend their case. The court will not make contact with persons not in attendance or accept evidence not presented during the trial.

(c)  If the plaintiff fails to appear, the judgment shall be issued in favor of the defendant. If the defendant fails to appear, a judgment shall be issued in favor of the plaintiff. If neither party appears, the case shall be dismissed.

Rule 4.7. Judgment

(a)  At the conclusion of the trial, the court may render its decision immediately. In no event shall the court issue a written decision more than thirty (30) days from the date of the trial.

(b)  If the court issues judgment for the plaintiff immediately after the presentation of the case during a trial at which both parties are present, the court shall inquire into the defendant's ability to pay the judgment from non-exempt assets and may require the defendant to complete a Statement of Assets and Liabilities from which the defendant's ability to pay the judgment from non-exempt assets in full or in installment payments may be determined. The court may then issue an order regarding the defendant's ability to pay the judgment, including any payment over time. The Statement of Assets and Liabilities shall be confidential as to non-parties. Access to these documents shall be pursuant to District Division Rule 1.26. The court may, in its discretion upon request of the defendant, continue the hearing to a future date to allow the defendant additional time to complete the Statement of Assets and Liabilities. In this circumstance, the plaintiff shall not be required to file a Motion for Periodic Payments.

(c)  If the court does not issue its decision immediately and address payment issues as set forth immediately above, and the judgment is for the plaintiff, the plaintiff will be required to file a Motion for Periodic Payments (Rule 4.10) if the plaintiff wishes to have a hearing to determine the defendant's ability to pay the judgment.

(d)  If the defendant confesses judgment at any time, the court shall immediately schedule a payment hearing or the plaintiff may file a Motion for Periodic Payments (Rule 4.10) upon receipt of written notice of the confession of judgment. If the defendant fails to appear at the hearing after notice is given, the court may proceed, and orders may be made in the defendant's absence or an order for arrest may be issued. In all other respects the process outlined in Rule 4.10 below shall be followed.

(e)  The plaintiff may be required to file a separate statement referred to as a Statement of Damages/Taxation of Costs.

Rule 4.8. Motion for Reconsideration

(a)  A motion for reconsideration or other post-decision relief shall be filed within ten (10) days of the date on the clerk's written notice of the order or decision. The motion shall state the particular points of law or fact that the court has overlooked or misapprehended and shall contain the arguments in support of the motion as the filing party decides to present. A hearing on the motion shall not be permitted except by order of the court.

(b)  No response to a motion for reconsideration or other post-decision relief shall be required unless ordered by the court, but any answer or objection must be filed within ten (10) days of the filing of the motion.

(c)  If a motion for reconsideration or other post-decision relief is granted, the court may revise its order or take other appropriate action without re-hearing or may schedule a further hearing.

(d)  The filing of a motion for reconsideration or other post-decision relief shall not stay any order of the court unless, upon specific written request, the court has ordered such a stay.

Rule 4.9. Appeal

The party against whom a judgment has been issued may appeal the decision to the New Hampshire Supreme Court according to its Rules. The appeal must be filed with the Supreme Court within thirty (30) days of the rendition of judgment or of the clerk's notice of the judgment, whichever is later.

Rule 4.10. Periodic Payments

(a)  A Motion for Periodic Payments may be made at the time judgment is issued or electronically thereafter. This motion may be made orally in the courtroom if the defendant is present when the verdict or judgment is awarded, in which case the court shall conduct a payment hearing. If the Motion for Periodic Payments is filed electronically, the court shall issue orders of notice, subject to paragraph B below, requiring the defendant to appear for a court hearing. The court may require the plaintiff to file a Statement of Damages/Taxation of Costs prior to the issuance of orders of notice or prior to a hearing on the motion.

(b)  Upon receipt of the notice of filing from the court or upon receipt of the copy forwarded by the plaintiff, the defendant may waive formal service of process of any notices related to the Motion for Periodic Payments.

(c)  If the defendant does not elect to waive formal service, the court shall forward the orders of notice to the plaintiff. The plaintiff shall cause the orders of notice to be served upon the defendant either in-hand or by certified mail, restricted delivery, return receipt requested. If the plaintiff elects to serve the orders of notice by certified mail, restricted delivery, return receipt requested, and if the return receipt is not signed by the defendant, then in-hand service shall be required.

(d)  At the hearing on the Motion for Periodic Payments, it shall be the burden of the plaintiff to establish that the defendant has the ability to pay the judgment from non-exempt assets either in full or in installments. The defendant may be required to submit a Statement of Assets and Liabilities which shall be confidential as to non-parties. The defendant may be questioned under oath as to his/her property and ability to pay the judgment. Either party may introduce oral and written evidence as the court deems relevant. If the parties reach an agreement for payment, the agreement shall include an acknowledgement that the parties understand that exempt income and assets may not be used in the enforcement of any judgment or agreement, and that failure to comply with the terms of the agreement may result in the matter being returned to the court's docket for a hearing as may be necessary.

(e) If the defendant fails to appear at the hearing and proof of service has been provided by the plaintiff, the court may proceed, and orders may be made in the defendant's absence or an order for arrest may be issued.

(f)  If a Motion for Periodic Payments is denied, the plaintiff shall not file another motion against the same defendant upon the same judgment within three (3) months unless the court otherwise allows for good cause.

(g)  Reasonable costs and fees incurred by the plaintiff in carrying out the provisions of this rule, in addition to statutory interest, shall be paid by the defendant.

Rule 4.11. Contempt (Following Payment Order)

(a)  Contempt proceedings for failure to comply with a payment order may be initiated by the plaintiff by Motion for Contempt for Non-Compliance with Payment Order and will result in the issuance of an order of notice to the defendant to appear before the court to show cause why the defendant should not be held in contempt of court. The court may require the plaintiff to file a Statement of Damages/Taxation of Costs prior to the issuance of orders of notice or prior to a hearing on the motion.

(b)  Upon receipt of the notice of filing from the court or upon receipt of the copy forwarded by the plaintiff, the defendant may waive formal service of process of any notices related to the contempt proceeding.

(c)  If the defendant does not elect to waive formal service, the court shall forward the orders of notice to the plaintiff. The plaintiff shall cause the orders of notice to be served upon the defendant either in-hand or by certified mail, restricted delivery, return receipt requested. If the plaintiff elects to serve the notice of hearing by certified mail, restricted delivery, return receipt requested, and if the return receipt is not signed by the defendant, then in-hand service shall be required.

(d)  At the contempt hearing, it shall be the burden of the plaintiff to establish that the defendant has failed to comply with the court's order. The defendant will then be required to show cause why the defendant should not be held in contempt for failure to comply with the court's order.

(e)  If the defendant fails to appear at the hearing and proof of service has been provided by the plaintiff, the court may proceed, and orders may be made in the defendant's absence or an order for arrest may be issued.

(f)  As a result of the hearing, the court may find the defendant in contempt and may make such orders as are appropriate, including a commitment to the house of corrections until the contempt is discharged. A contempt finding shall not end the proceedings nor satisfy any order for periodic payments. Future violations of the court's order for payments may also be dealt with as contempt.

(g)  Reasonable costs and fees incurred by the plaintiff in carrying out the provisions of this rule, in addition to statutory interest, shall be paid by the defendant.

Rule 4.12. Mediation and Agreements

(a)  Mediation is voluntary in small claims cases if the claim is $5,000.00 or less. Mediation in these cases will be scheduled and may be held on the day of the pre-trial hearing and with the agreement of all parties to a case.

(b)  Mediation is mandatory in small claims cases if the claim is more than $5,000.00. Mediation in these cases will be scheduled and may be held on the day of the pre-trial hearing. If the case is scheduled for mandatory mediation in accordance with RSA 503:1, whether at the pre-trial hearing or on another date, and a party fails to appear, judgment may be rendered in favor of the other party. If neither party appears for a mandatory mediation session, the case shall be dismissed.

(c)  Agreements reached through mediation or otherwise must include a judgment amount. The parties to any agreement, whether mediated or by agreement of the parties without mediation, shall submit an acknowledgement that they understand that exempt income and assets may not be used in the enforcement of any judgment or agreement, and that failure to comply with the terms of the agreement may result in the matter being returned to the court's docket for a hearing as may be necessary.

(d)  Any communication made during the mediation which relates to the controversy mediated, whether made to the mediator or a party, or to any other person present at the mediation is confidential. Information, evidence or the admission of any party shall not be disclosed or used in any subsequent proceeding.

(e)  The Administrative Judge of the Circuit Court, in consultation with the ADR Coordinator, shall determine the mediation needs for each Circuit Court location. Assignment of mediators shall be based on the mediation needs of each court.

  Rule 4.13. Securing Judgment

(a)  Prejudgment

(1)  Petitions for pre-judgment attachment, with or without notice, shall be submitted electronically.

(2)  If the plaintiff is requesting a Petition to Attach without Notice to the Defendant (ex parte), the plaintiff, after submitting the Petition electronically, must physically appear at the court where the small claim would be heard as required in the New Hampshire Circuit Court – District Division Small Claims Electronic Filing Pilot Rules. The Petition to Attach without Notice shall not be considered filed until the plaintiff physically appears as directed above and the additional filing fee is paid.

(3)  If the plaintiff seeks a pre-judgment attachment, the process and procedure set forth in RSA 511-A and District Division Rule 3.4 shall be followed, except as otherwise specified in this rule. The words “Writ” and “Writ of Summons” in District Division Rule 3.4 and RSA 511-A shall refer to the Small Claim Complaint.

(4)  Service upon the defendant in cases with pre-judgment attachments shall not be made by first class mail and shall be completed as in all other actions at law, generally by a sheriff, and at the expense of the plaintiff pursuant to RSA 510.

(5)  If the defendant files an objection to a pre-judgment attachment request or ex parte attachment, the court shall schedule a hearing on the attachment to take place within fourteen (14) days of the court's receipt of the defendant's objection.

(b)  Post-Judgment

(1)  A party who has received a judgment may file a motion to request a writ of attachment to secure payment of a final judgment for money damages by filing a motion with the court. Attachments made pursuant to this rule shall remain in effect until the judgment is satisfied or until the attachment expires by law. Attachments may only be made using the Writ of Attachment form to be obtained from the Clerk's office upon the granting of an attachment.

(2)  A small claims judgment may also be secured by real estate by recording or re-recording, at any time during the duration of the judgment, a certified copy of the judgment with the registry of deeds of the county in which the real estate is located.

(c)  Discharge of Attachments

(1)  When a small claims judgment secured by real estate is satisfied, the plaintiff shall deliver a discharge directly to the defendant within thirty (30) days. It shall be the responsibility of the defendant to record the discharge.

(2)  If the plaintiff fails to deliver a discharge within the thirty (30) days, or if exigent circumstances require an immediate discharge, the defendant may petition the court in which the judgment was issued for a court ordered discharge. The burden shall be on the defendant to establish that the judgment has been satisfied pursuant to RSA 503:12.

(3)  This rule shall apply to cases in which the court has granted an attachment and to cases in which the plaintiff has recorded a certified copy of a judgment in accordance with RSA 503:12.

 

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