Last updated: March 2011
The following questions were submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette. This article was published on March 02, 2011.
I got served with court papers in a small claims case. I admit I owe the money. Someone told me I should not go to court, and let a judgment be entered against me. I’m afraid I’ll go to jail if I don’t show up, or that I’ll be ordered me to make payments I can’t afford. What should I do?
You can’t go to jail for ignoring the first court date in small claims court. You’ll “lose” the case, and owe the debt, but that’s all. If you admit you owe the debt, not showing up may actually have some advantages.
It’s important to understand the difference between a summons that you get at the start of a small claims case, and any other notices about court dates you might get later on.
Serving a summons starts a court case. It’s official notifies you about the case, and gives you the chance to respond. A served summons gives the judicial system jurisdiction over you, and the power to affect your rights.
A summons invites you to come to court. It does NOT require you to come. If you decline the invitation, and don’t show up, you “lose” by default. The other side gets what it asked for. But because you’re not defying any court order, you can’t go to jail or have a warrant issued for your arrest.
In small claims cases the summons specifies the date, time, and location of the first court appearance. If you don’t show up, a default judgment is entered against you for the amount the other side sued for.
If you admit you owe the money, letting a default judgment be entered against you can’t be any worse than showing up to admit that you owe. Sometimes, it can actually be better.
That’s because if you’re defaulted, the most the other side can get is what they sued for. If you show up, the other side sometimes tries to increase what they’re suing for.
Maybe, for example, the original amount claimed was incorrect or incomplete. If you show up in court, and the other side wants to increase the claimed amount, they’ll usually be allowed to “amend” their complaint to the increased amount. By being there in court, you’re told directly what’s going on, which is considered enough due process of law to allow an increased judgment be entered against you.
If you’re not there, a default judgment can only be entered against you for what was originally sued for. To get more, due process requires the other side to give you written notice that they want more. They’d have to set another court date, and send notice of that court date, and about the increased amount they want.
Often, a creditor who wants more will just take a default, and not bother with trying to formally amend their complaint to seek more. But if you’re there, getting the increased amount is no bother.
Also, if you’re there in court, the other side or the judge will sometimes extract a payment “agreement” from you, which then becomes a payment order. A payment order isn’t possible if you’re not there.
Besides saving you a trip to court, then, a default judgment can sometimes have other advantages.
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