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  1. #1
    Join Date
    Aug 2013
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    15

    Default How to Properly File a Small Claims Case

    My questions involves a mortgage in the state of: Illinois

    I am contemplating an action against a mortgage broker in the Small Claims court. In order to avoid a potential loss on a technicality, I would appreciate your help in answering the following questions:

    1) Should I name both myself and my wife as plaintiffs (both of our names are on the mortgage)? If yes, am I allowed to represent both of us without her being present in court?
    2) Am I required to introduce all evidence (e-mails and HUD forms) in advance of the court date or I can do it at the hearing?
    3) In serving the agent for the LLC and broker, do they both need to be served personally (at home or at the office), or a secretary can accept service (at the office)?

    Thank you very much.

  2. #2
    Join Date
    Feb 2010
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    CT & IL
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    5,273

    Default Re: Proper Small Claims Filing Procedure in Illinois

    You should list both as plaintiff's .... you can do all the talking .. if anyone has a question for your wife, she should answer ... if she has a question to ask, she can.

    You can include exhibits to the complaint ... they still need to be admitted at trial. E-mails are not automatically admissible.

    As far as service is concerned, serve the registered agent of the LLC (go to sec. of state's website for registered agent name & address for service) ... suing the broker? You can serve him personally...at work or at home..as long as he gets it. or you may be able to serve them via certified mail...ask clerk to be certain. I would go with the least costly method. And if certified, get a return receipt and file it with the court (coping both parties when an appearance is filed or just by regular mail to the addresses previously sent ~ complete a notice of filing & certificate of service regarding the return receipt filing).

    They'll file appearances showing service requirements afterwards.

    Small claims does not allow every cause of action to be heard by the court. Why are suing these persons?

    The only technical aspect to a small claims case is : 1) court had jurisdiction 2) service was performed

  3. #3
    Join Date
    Sep 2005
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    Default Re: How to Properly File a Small Claims Case

    All parties to a lawsuit would want to be named to the lawsuit, which would appear to mean both you and your spouse. All parties will need to appear. Testimony can come in through one or both plaintiffs.

    You will be allowed to introduce evidence that is relevant and that you can properly authenticate. Small claims courts are usually somewhat relaxed in terms of how the rules of evidence are applied.

    You would need to effect proper service on the defendant(s). We don't know the relationship between the broker and LLC, or if you would be intending to sue both the broker and the LLC. If you're suing both, then follow your state's rules of civil procedure for serving both - for small claims court, often a court officer will effect the service, so you should check local practices.

    Odds are if you sue they're going to respond through a lawyer and move the case to a regular trial court.

  4. #4
    Join Date
    Aug 2013
    Posts
    15

    Default Re: How to Properly File a Small Claims Case

    @Mr. Knowitall, thanks for the answer. As a follow-up:
    What would happen if I file only on my own behalf, i.e., spouse is not a plaintiff?
    California has a form allowing one spouse to represent both; isn't there a similar form in Illinois?
    Isn't the only way to move the case to a higher court by filing a counterclaim for an amount higher than the Small Claims limit?

    Thanks.

  5. #5
    Join Date
    Sep 2005
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    98,846

    Default Re: How to Properly File a Small Claims Case

    If you sue without your spouse, you will be the only plaintiff.

    You can spend as much time as you like looking for Illinois forms, but I don't think you'll have any luck finding one like California's.

    Different states have different rules and laws on removal of cases. In states like Illinois in which a person or corporation can be represented by a lawyer in small claims court, there's not necessarily a mechanism for removal. I don't presently have time to research your state's court rules and statutes on the subject, but if you want to look you can find them online.

  6. #6
    Join Date
    Aug 2013
    Posts
    15

    Default Re: How to Properly File a Small Claims Case

    Last one: Is there any drawback/danger/pitfall in being the only plaintiff as opposed to both husband and wife? Thanks.

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