“Upon the filing of the affidavit, the clerk or deputy clerk shall cause a copy of the affidavit to be served upon each defendant with a notice directing the defendant to appear and answer before a judge of the small claims division.” MCL 600.8404(1). See also MCR 4.303(A).
A.Required Contents of Notice
Requirements for the form and contents of a notice are found in MCL 600.8404(1):
The notice shall be in a form prescribed by the state court administrator and shall inform the defendant of all of the following:
(a) When and where to appear.
(b) That the defendant and the plaintiff are to bring all books, papers, and witnesses needed to establish any claim or defense.
(c) That failure to appear may result in a judgment against the defendant of up to the applicable jurisdictional amount as prescribed by [MCL 600.8401], or the amount of the claim stated in the affidavit, whichever is less, together with costs of the action.
(d) That if settlement of the dispute is made before or at the hearing, the defendant may be charged with costs incurred by the plaintiff in initiating the action.
(e) That, even if the defendant does not have a legal defense, the defendant may appear to request installment payments pursuant to [MCL 600.8410]. [See also MCR 4.303(A).]
The information required by MCL 600.8404(1)(a) appears on the notice of hearing, which the court completes and includes with the affidavit served on the defendant. See SCAO Form DC 84/84n, Small Claims Affidavit and Small Claims Notice of Hearing. The information required by MCL 600.8404(1)(b)-(e) appears in the Important Information for the Defendant and Important Information for Both Parties sections of the small claims affidavit.
“The date for the appearance of the defendant provided in the notice shall not be less than 15 days nor more than 45 days after the date of the notice.” MCL 600.8406(1). “The person filing the claim shall receive from the clerk a copy of the affidavit and notice of hearing.” Id. “The clerk shall inform the plaintiff and defendant that evening and Saturday court hours may be made available upon written request and need shown.” MCL 600.8404(2).
Under MCL 600.8405 service may be accomplished using either:
•certified mail, return receipt requested; or
•personal service; or
•upon a showing that service of process cannot reasonably be made by either certified mail or personal service, the court may issue an order permitting service to be made in any other manner reasonably calculated to give actual notice and opportunity to be heard.
If service is by certified mail the mail must be deliverable to the addressee only, unless the defendant is a corporation or a partnership. MCL 600.8405. “If the defendant is a corporation or a partnership, the certified mail described in MCL 600.8405 need not be deliverable to the addressee only, but may be deliverable to and signed for by an agent of the addressee.” MCR 4.303(B).
“Where service by certified mail is made, it shall be made by the clerk and the receipt of mailing together with the return card signed by the defendant shall constitute proof of service.” MCL 600.8405. Service or attempted service is recorded on SCAO Form DC 84p, Small Claims Proof of Service, which is completed by the court or a process server and identifies the documents served as the affidavit, the notice of hearing, and the overview. See SCAO Form DC 84info, Small Claims Overview.
“If a defendant is not personally served or did not sign the certified mail return receipt at least 7 days before the appearance date, there shall not be jurisdiction to render judgment[.]” MCL 600.8406(2). However, if the defendant appears on the appearance date and does not request a continuance, the small claims division has jurisdiction to render a judgment. Id. “If the defendant was not served within the minimum time specified, the matter, upon request of either party, shall be continued for not less than 7 days.” Id.
“If the notice is not served upon the defendant at least 7 days before the appearance date, the plaintiff may apply to the clerk or deputy clerk for a new notice setting a new date for the appearance of the defendant which shall be not less than 15 days nor more than 30 days after the date of the issuance of the new notice.” MCL 600.8406(1). See also MCR 4.303(C). “The further notice may be served as provided in MCR 2.105.” MCR 4.303(C).
“A fee in an amount equal to the prevailing postal rate for the service provided shall be charged and collected for each defendant to whom a copy of the affidavit is mailed by the clerk.” MCL 600.8420(2). However, if requested, this service 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 the waiver of fees, see the Michigan Judicial Institute’s Civil Proceedings Benchbook, Chapter 1.
“Except as otherwise provided in [Chapter 84 of the Revised Judicature Act (RJA)], a fee or charge shall not be collected by an officer for any service rendered under [Chapter 84 of the RJA] or for the taking of affidavits for use in connection with any action commenced under [Chapter 84 of the RJA].” MCL 600.8420(2).
“If the affidavit and notice to appear and answer are served by personal service, the person serving the process is entitled to the same fee and mileage as for the service of a summons and complaint out of the district court.” MCL 600.8420(6).
E.Dismissal for Lack of Progress
A court may order that a case be dismissed for lack of progress on the motion of a party or on its own initiative if no progress has been made within 91 days after the last action. MCR 4.303(D)(1). “The court must serve notice of the proposed dismissal on the parties at least 14 days before the court orders the case dismissed.” MCR 4.303(D)(2). See SCAO Form DC 542, Small Claims Notice of Intent to Dismiss for No Progress. “A dismissal under [MCR 4.303(D)] is without prejudice unless the court orders otherwise.” MCR 4.303(D)(3). See SCAO Form DC 542o, Small Claims Dismissal for No Progress, which provides for dismissal with or without prejudice.