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Although filing an Answer form is the most common response of a Defendant, other responses are possible. It is very important to file your Answer before the deadline. Also, when you file an Answer denying the suit against you, you can add more claims. These other responses, and when each one is proper, are explained immediately below. Look to the back of this booklet for a copy of each form.
Answer This form is served on the Defendant with the Original Notice. It denies the Plaintiff?s claim, and informs the Clerk that there is a real dispute which must be scheduled for hearing before a Judge. Although the Answer form has space for a Defendant to write an explanation, it is not necessary to do so, as long as the form is signed. NOTE that even if a Defendant admits to owing the amount of money claimed, it still might be wise to file an Answer and get a hearing. That way, the Defendant can ask the Judge or Magistrate at the hearing to let the judgment be paid in affordable installments.
Counterclaim A Counterclaim is used when a Defendant wants to turn the tables and file a suit back against the Plaintiff. For example, Plaintiff may file an Original Notice demanding $200 from Defendant on the grounds that Defendant had agreed to pay Plaintiff that amount for doing certain repairs on Defendant?s car. The Defendant may turn around and Counterclaim against the Plaintiff for $300 on the grounds that the repair work was done so poorly that the car was returned to Defendant in much worse shape that it was at the start.
In a situation like that one, suppose the Defendant had only filed an Answer, without the Counterclaim. Then the Defendant would still be able to try to show the Judge that the Plaintiff?s poor work should result in nothing being owed to the Plaintiff by the Defendant. The Defendant would still be able to try to show that the suit should therefore be dismissed. But if the Defendant wants to end up winning money, that is, actually walking out of Court with a Judgment against the Plaintiff for some amount of money, a Counterclaim must be filed.
A Counterclaim doesn?t have to be based on the same situation the Plaintiff is suing on. For example, Plaintiff might sue for $200 for payment of car repairs, as in the above example. But Defendant may Counterclaim for $400 on the grounds that Plaintiff borrowed Defendant?s power mower and had left it outside all winter, damaging it badly.
Note that the subject of this Counterclaim (damage to lawnmower) is not related to the subject of the Original Notice (car repairs). In such cases, a Counterclaim must be filed even if the Defendant only wants to walk out of Court even up, with the suit dismissed. If an Answer is filed, but not a Counterclaim, at the hearing the Defendant can only bring up issues directly related to the subject of the Original Notice, in the hopes that the Judge will dismiss the case.
A Counterclaim should be filed at the same time the Defendant files the Answer. The Plaintiff does not have to file any response to the Counterclaim.
Cross-Claim Against Co-Party This is used when one Defendant (Smith) claims that another Defendant in the same suit (Jones) should have to pay Smith for part or all of the money the Plaintiff in the case wins from Smith. For example, Plaintiff sues Smith and Jones, in the same suit, for damaging Plaintiff?s car when they were supposed to be repairing it. But Smith might Cross-claim against Jones, a Co-party, on the grounds that Jones had supplied Smith with defective car parts, which caused Smith?s repair work to do more harm than good.
What Smith would basically be saying is this: ?I may owe the Plaintiff money for returning the car in such bad shape, but if I do, Jones owes me money for supplying me with defective parts to do the repair work with.?
This Cross-claim Against a Co-party can also be used when there are two or more Plaintiffs in the same suit. This would happen when a Defendant files a Counterclaim against the Plaintiffs, and one Plaintiff (Stone) claims that another Plaintiff should have to repay Stone for whatever Stone might lose to the Defendant on the Defendant?s Counterclaim.
If a Cross-claim Against Co-Party needs to be filed in a particular case, it should be filed by a Defendant along with the Answer, and by a Plaintiff who has been Counterclaimed against, immediately. The Co-party who is Cross-claimed against does not have to respond to the Cross-claim.
The two procedures explained next, namely, the Cross-Petition and Intervention, are used only in somewhat uncommon situations. A Cross-Petition is a way of bringing a new person into a lawsuit - someone who wasn?t a Plaintiff or Defendant at the beginning. Intervention is a way for an interested person to become involved in a lawsuit which has already been started between other people.
IF NEITHER OF THESE SITUATIONS IS LIKE YOURS, YOU MAY WANT TO GO DIRECTLY TO WHERE THE SMALL CLAIM HEARING ITSELF IS DISCUSSED.
Cross-Petition Against Third Party This is used by a Defendant (or a Plaintiff who has been counterclaimed against) to bring a new person into the Small Claims case. The new person would be someone who wasn?t sued originally, but who may have to repay a Defendant for whatever the Plaintiff wins from that Defendant. This is just like the Smith and Jones example already discussed, only Jones isn?t a co-party, because the Plaintiff sued only Smith originally, and not Jones. So it is left to Smith to make Jones share the responsibility. Smith does this by having a Cross-Petition Against Third Party served on Jones, making him a part of the suit. In this case, Smith would become a Cross-Petitioner (as well as a Defendant). Jones would be called a Third Party Defendant.
The procedures for filing a Cross-Petition Against Third Party differ from those for a Counterclaim and a Cross-Claim Against Co-party in two ways. First, a Cross-Petition Against Third Party must be responded to (by an Answer, along with any appropriate Counterclaims, Cross-claims, or further Cross-Petitions). Without a response, the Third Party Defendant is automatically liable to the Third Party Plaintiff.
Second, although it is best to file a Cross-Petition Against Third Party along with the Defendant?s Answer (or immediately, if a Plaintiff who has been Counterclaimed against is filing the Cross-Petition Against Third Party) it may be filed anytime within 10 days after the Defendant files the Answer. In fact, it can be filed even after that 10 days, if the Judge has given special permission to do so. This special permission is obtained by filing a Motion to Serve Cross-Petition Against Third Party. But remember - it is very risky to delay in filing a Cross-Petition Against Third Party, since the hearing itself may be scheduled as soon as 5 days after the filing of the Defendant?s Answer.
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