7.7Commencing a Small Claims Action
“An action shall be commenced in the small claims division by filing with the clerk or a deputy clerk of the district court an affidavit and 1 copy of the affidavit for each defendant to be served.” MCL 600.8402(1). See also MCR 4.302(A). “The form and contents of the affidavit shall be as prescribed by statute and the state court administrator.” MCL 600.8402(1). See also SCAO Form DC 84, Affidavit and Claim; MCR 4.302(A).1 “A party filing a case initiating document . . . shall provide specified case information in the form and manner established by the State Court Administrative Office and as specified in other applicable rules.” MCR 1.109(D)(2). See also MCR 6.101(A). “At a minimum, specified case information shall include the name, an address for service, an e-mail address, and a telephone number of every party[.]” MCR 1.109(D)(2).
The affidavit must be signed. MCR 4.302(B). See also MCR 1.109(E)(2) (requiring every filed document to be signed by at least one attorney of record or the party if not represented by an attorney). “If the plaintiff is an individual, the affidavit must be signed by the plaintiff or the plaintiff’s guardian, conservator, or next friend.” Id. “If the plaintiff is a sole proprietorship, a partnership, or a corporation, the affidavit must be signed by a person authorized to file the claim by MCL 600.8407(3).” MCR 4.302(B). “If a document is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party.” MCR 1.109(E)(3). Electronic signatures are acceptable if they are made in accordance with MCR 1.109(E). See MCR 1.109(E)(4).
The affidavit “must be verified by oath and affirmation” “of the party or someone having knowledge of the facts stated[.]” MCR 1.109(D)(1)(f); MCR 1.109(D)(3)(a).
A.Required Contents of Affidavit
The affidavit must include:
•A printed notice directing the defendant to appear and answer as prescribed in MCL 600.8404. MCL 600.8402(1).
•The full and correct name of the plaintiff. MCL 600.8402(2); MCR 4.302(C)(1).2
•A statement whether the plaintiff is a corporation, partnership, sole proprietorship, or individual. MCL 600.8402(2); MCR 4.302(C)(1).
•The plaintiff’s assumed name or business name, if any at the time the claim arose. MCL 600.8402(2); MCR 4.302(C)(1).
•A notice in boldface type to both parties of the right to removal before trial from magistrate jurisdiction and the right to removal before trial to the general civil division. MCL 600.8402(3).
•Notice to both parties of rights waived if they choose to remain in the small claims division.3 MCL 600.8402(3).
•The nature and amount of the claim in concise, nontechnical language. MCR 4.302(A).4
•The date or dates when the claim arose. MCR 4.302(A).
•The form, captioning, signing, and verifying of documents as set forth in MCR 1.109(D)-(E). MCR 4.302(A).
“A fee of the following amount, as applicable, shall be charged and collected for the filing of the affidavit for the commencement of any action:
(a) $25.00, if the amount in controversy does not exceed $600.00.
(b) $45.00, if the amount in controversy exceeds $600.00 but does not exceed $1,750.00.
(c) $65.00, if the amount in controversy exceeds $1,750.00.” MCL 600.8420(1).
The fees collected under MCL 600.8420(1) must be distributed as required by MCL 600.8420(3)-(5). An electronic filing system fee of $5.00 is also required.5 MCL 600.1986(1)(d). However, if requested, this system fee must be waived for indigent individuals. See MCR 2.002(A)(2); MCR 2.002(B)-(E). “Notwithstanding any other provision of [MCR 2.002], courts must enable a litigant who seeks a fee waiver to do so by an entirely electronic process.” MCR 2.002(L).
For more information on e-filing and the waiver of fees, see the Michigan Judicial Institute’s Civil Proceedings Benchbook, Chapter 1.
“If the defendant files a verified answer stating any new matter which constitutes a counterclaim, the court may grant a continuance upon request of either party.” MCL 600.8422.
“If a defendant in a small claims action has a claim against the plaintiff, which claim is for an amount over the jurisdiction of the small claims division but of a nature which would be subject to counterclaim in accordance with rules of the supreme court, he [or she] may commence an action against the plaintiff in a court of competent jurisdiction and file with the clerk or deputy clerk of the small claims division wherein the plaintiff has commenced his [or her] action, at or before the time set for the trial of the small claims action, an affidavit in a form prescribed by the supreme court setting forth the fact of the commencement of such action by the defendant.” MCL 600.8423(1).
The defendant making a counterclaim “shall attach to the affidavit a true copy of the complaint filed by him [or her] against [the] plaintiff, and pay to the clerk or deputy clerk the sum of $1.00 for a transmittal fee, and shall mail to the plaintiff a copy of the affidavit and complaint at or before the time above stated.” MCL 600.8423(1).
The district court magistrate must order that the small claims action be transferred to the court set forth in the affidavit and must transmit all files and papers in the action to the other court, and the actions must then be tried together in the other court. MCL 600.8423(1).
“The plaintiff in the small claims action shall not be required to pay to the clerk of the court to which the action is transferred any transmittal, appearance or filing fee in the action.” MCL 600.8423(2).
Discovery is not permitted in a small claims action. MCR 2.301(A)(3).
Committee Tip:
A defendant may file a counterclaim on the day of the hearing. The magistrate should inquire about the nature of the counterclaim to determine whether it is a claim for damages or an expression of a defense to the plaintiff’s claim. The counterclaim might be a delay tactic. The district court magistrate should let the plaintiff choose whether he or she would prefer an adjournment or to proceed with the hearing.