- Should you file a District Civil Case?
- Who can use District Civil Court?
- How do you file a District Civil Case?
- What happens after the claim is filed?
- If you are the defendant, what should you do after a claim has been filed?
- What should both sides do to prepare for the trial?
- What happens at the trial?
- What can you do if you disagree with the court's judgment?
- If you, the plaintiff, wins, how do you collect the judgment?
Should you file a District Civil Case?
Before you file a claim, you should contact the person or business you plan to sue and attempt to settle your dispute. This effort may save you time and money. In some instances, it costs as much, or more, than the actual claim to file and seek collections. You should also find out if the person or business you plan to sue has any money or assets to pay your claims. Otherwise, if you win, you may have a difficult time collecting on a court judgment. Remember, it is up to you, not the court, to take further legal action against the person or business if the judgment is not paid.
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Who can use District Civil Court?
An individual who has reached the age of 19, a partnership, or a corporation may file a claim. An individual may file a claim with, or without, an attorney. If a partnership files without an attorney, the person representing the partnership must be a partner or an employee of the partnership. A corporation MUST be represented by an attorney.
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How do you file a District Civil Case?
You should go to the District Civil Division of the District Court in the county where the person or business you wish to sue lives, or has an office, andfile aStatement of Claim (Complaint) form. This form is available in the Clerk's Office. By law, the Court Clerk can not give you legal advice nor can they assist you in filling out forms (you, an individual or an attorney of your choice may do this). If you are physically unable to fill them out yourself, this office will gladly make reasonable accommodations in order to help you complete the necessary paperwork.
Once you complete the complaint, you become the "plaintiff" in the case and the person you are suing is the "defendant". The information that you must have in order to complete the case is the defendant's correct and complete address and/or their place of employment. You must pay a filing fee at the time the claim is filed. Filing fees are non-refundable. NO PERSONAL CHECKS. If you cannot afford to prepay this fee, you can fill out anAffidavit of Substantial Hardship form and ask the judge to delay payment and the costs will be taxed at the conclusion of the case. You may attain this form from the Court Clerk or download from the site at Affidavit of Substantial Hardship. Otherwise, you (the plaintiff) will be responsible for any costs accumulated over the course of the claim.
CERTIFIED MAIL - When requesting service, wherein the address provided is a post office box, or is out of state, the papers may be served by certified mail. You should prepare an envelope, green card, and green and white sticker. Be sure that the Clerk's address is the return address, to-wit: Montgomery Circuit Clerk's Office, District Court, P.O. Box 1667, Montgomery, AL 36102. You must affix the proper postage onto the prepared envelope. It is your responsibility to insure the address is current and correct. You will need to contact the US Post Office to obtain current fees for certified/return receipt mail — Restricted Delivery.
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What happens after the claim is filed?
Once the forms are completed, this office will process the complaint and assign your case a number. You should refer to this number whenever you contact the court concerning your case. It normally takes 1 to 2 weeks to process the case. After it is processed in our office, it is then sent to the Sheriff's Department for service on the defendant(s) or issued by Certified mail whichever process you stated. Once served with a Statement of Claim, the defendant has 14 days to answer and to file it with the Clerk's Office. If the defendant files an answer, the case will be set for trial in approximately 2-4 weeks from the receipt of the answer. You should have sufficient time or notification of the trial in order to subpoena any witnesses and otherwise prepare your case for trial. If you have a conflict with the trial date, you will need to file a Motion to Continue in a timely manner with the Clerk's Office.
If the defendant fails to file an answer, the plaintiff can take a judgment by default by filling out a default request and affidavit form. This form is available here - Application, Affidavit and Entry of Default Judgment. Please note that this form must be notarized. The plaintiff must provide proof of the claim with it's application for default judgment.
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If you are the defendant, what should you do after a claim has been filed?
You may choose to settle with the plaintiff before the date the claim is set for trial. If you do settle, then the claim may be dismissed, with no judgment entered against you. If you choose not to settle or you are unable to settle, you must answer the Complaint within 14 calendar days after being served, admitting or denying all or part of the claim. Remember, your answer must be filed within 14 calendar days or a default judgment may be entered against you. As the defendant, you may also choose to file a Counterclaim - Defendant's Answer (Counterclaim), which is a claim that you have against the plaintiff.
All parties to a district civil case are encouraged to try and reach a settlement agreement prior to trial.
All settlement agreements should be in writing and should state who is to pay the court costs. If the defendant does not agree to pay the court costs as part of the settlement, the plaintiff will be responsible.
If a settlement agreement is reached before the trial, the plaintiff must immediately notify the clerk so that the trial can be cancelled.
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What should both sides do to prepare for the trial?
If an agreement cannot be reached, both the plaintiff and defendant should get together all papers, receipts, bills, sales tickets, estimates, photographs, etc., having to do with the claim. These are to be brought to court the date of the trial.
You should write down the details and facts of the case to assist you in telling your side of the story at the trial. As the plaintiff or defendant, you may bring any witnesses you feel can help explain your case. If there is any reason to believe a witness will not voluntarily appear, you may ask the clerk to issue a Witness Subpoena requiring that person to appear. This form is available for downloadOrder to Appear (Subpoena) and Subpoena Request Form. You will be required to pay a witness subpoena fee. You will need to make sure you allow at least two weeks for service of your subpoena prior to trial date, especially if your witness is located in another county.
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What happens at the trial?
BE ON TIME. If you are late, the judge may dismiss your case (if you are the plaintiff) or he/she may enter a default judgment against you (if you are the defendant). If something comes up which would prevent you from being on time or appearing at the trial, you MUST inform the judge your case is assigned to as soon as possible and request a continuance (delay) of the trial.
A trial in District Civil Court is an informal hearing before a judge. There is no jury. When the case is called, the plaintiff will present his/her evidence and his/her witnesses. The defendant will then present his/her evidence, and call his/her witnesses.
After hearing both sides of the case and looking at the evidence, the judge will make a decision and render a judgment based on the law and the facts presented. A copy of the judgment will be mailed to each party or their attorney.
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What can you do if you disagree with the court's judgment?
If either of you (plaintiff or defendant) disagrees with the decision, you may appeal the case by filing a NOTICE OF APPEAL form with the clerk of District Civil Court within 14 calendar days after the date of judgment. This form is available here Notice of Appeal. The Clerk's Office also has this form.
The appeal will be heard in the Circuit Court. The party filing the appeal must be prepared to pay a filing fee of $246.00 for a non-jury trial or $346.00 for a jury trial. Additional funds may be required in order to secure a proper appeal. If so, it will be the responsibility of the party who appeals. The Clerk's Office cannot give legal advice. You may need the assistance of an attorney if you choose to appeal because the simplified procedures of District Civil court do not apply in Circuit Court.
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If you, the plaintiff, wins, how do you collect the judgment?
If, after 14 days, the defendant does not pay the judgment, it is up to you, and not the court, to take one of the following actions to collect your judgment: Forms for the following are available in the clerk's office.
- Garnishment of Wages - It must meet state and federal requirements in order to collect using this method. Must have name and address of Defendant's employer. Process of Garnishment
- Garnishment of Bank Account - Must know of the defendant's bank and bank address.
- Execution for Levy on Property - Obtain a court order authorizing the sheriff to pick up any property belonging to the defendant and sell it to satisfy the judgment. The property levied cannot be under a recorded mortgage (plaintiff can check with the probate court for recordings). Writ of Execution
It is important to mention, you cannot garnishee a retirement check, disability check, welfare, child assistance, unemployment, or social security check. All of the above actions require an additional filing fee. (SEE FEES) The clerk has the necessary forms and sometimes the method of collection may become involved, you may wish to have an attorney explain the procedure and assist you in filing the appropriate forms. Again the court clerk cannot give you legal advice.
The court has no way of collection outside of the above mentioned methods and judgments are good for up to ten years. It is important to mention, it is easier to get a judgment than it is to collect on it. A judgment is not a guarantee of collection.
The plaintiff can request a certificate of judgment and have it recorded in the county probate court. It will then go on record and must be satisfied before the defendant can borrow money or sell property.
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Unlawful Detainers (Eviction)
ACT NO. 2006-316 - Alabama Uniform Residential Landlord Tenant Act
Regarding Landlord/Tenant Relations Evictions
Procedures and Guidelines for Filing Unlawful Detainer Actions in the District Court
Effective January 1, 2007
Unlawful Detainer Actions are the remedy for eviction in a landlord tenant relationship----Title 6, Code of Alabama . Effective Date: January 1, 2007. Some existing lease provisions remain until lease renews in 2007.
WHO MAY FILE ACTIONS: Individuals representing themselves or an attorney licensed to practice law in the State of Alabama.
JURISDICTION: District Court and Circuit Court have concurrent jurisdiction. Actions seeking injunctive relief must be filed in the Circuit Court. Injunctive relief is defined as seeking to obtain an order to either command or prohibit an action.
Rules of Civil Procedure govern.
NOTICE TO TENANT: Seven day notice for failure to pay rent, fourteen day notice for anything else. The purpose of the notice is to terminate tenancy rights. Notice must provide for right to pay any delinquent rents or correct any lease prohibitions also known as the right to cure.
INITIATED BY FILING A COMPLAINT: Form No. C-59. The Landlord/Plaintiff may sue for possession of property and for money damages in the same action. Filing fees apply and will vary. The initial filing fee is $247.00; $10.00 for each additional defendant. Please include a copy of the “Notice to Tenant” when filing an original action. Counterclaims are allowed by the defendant/tenant, and there is no filing fee for this action in District Court.
SERVICE: Personal service must be attempted for possession complaint. If unable to make personal service, may be served by posting a copy on the premises. Sheriff/process server must also mail a copy of complaint to defendant by first class mail. Tile 6-6-332, Code of Alabama.
Complaint for money must be served in accordance with Rule 4, Alabama Rules of Civil Procedure which requires service by certified mail or personal service by either the Sheriff's office or a private process server.
ANSWER: Seven business days to file an answer to complaint for possession of property. Fourteen days to file answer to money claim (if filed in the District Court).
IF NO ANSWER FILED, a default may be taken. Filing fee for filing for default is $50.00 per defendant. When applying for a default judgment, the plaintiff should provide a copy of the written lease, with notice provisions, monthly rental amount and date due, attorney fee provisions and waiver of exemptions provisions highlighted. The plaintiff should also provide a copy of the termination notice with the affidavit showing the date served and how service was perfected.
ORIGINAL FILING NOT REQUIRED BY LAW TO BE TREATED AS A PRIORITY CASE.
APPEALS: If the case is filed in the District Court, the appeal would go to the Circuit Court. Appealed cases must be set in the Circuit Court within 60 days. (If the case is filed in the Circuit Court, the appeal would go to the Court of Civil Appeals.) The time for filing an appeal is seven business days from the final order or from the ruling on a post-trial motion. A post-trial motion filed before a Notice of Appeal is filed would greatly extend the time for filing a Notice of Appeal.
Order entered by District Court Judge should set the amount of appeal bond which would be two amounts based on past due rent and accruing rent. If the District Court Judge fails to set a bond before Notice of Appeal to Circuit Court is filed, the Circuit Court Judge will set bond upon filing of a motion.
In order stop the eviction while the appeal is pending, an appeal bond MUST be posted. The bond money is paid to the Clerk of the Circuit Court. Affidavit of Substantial Hardship does not waive the posting of this bond to stop the eviction while the appeal is pending. If the tenant does not post a bond, it has no effect on the appeal only on his right to possession of the property.
This instruction sheet is being provided merely for the purpose of instruction as to the procedures of this office and in no way should be construed as advice as to the laws governing unlawful detainers. The clerk cannot give you legal advice, if you need assistance, you should see an attorney.
