I have a debtor who owes me $26,500.00… and I have not seen my money yet.
Long story short, I am tired of promises of paying back and see no option other than filing a lawsuit. There is a problem though: the amount owing is more than I can claim in the Small Claims Court. At the same time, I would not like to start the lawsuit in the Superior Court of Justice – it is too expensive.
Is it still possible to use the Small Claims Court in my situation?
This situation is not uncommon of prospective plaintiffs. The amount of their claim is slightly higher than the monetary jurisdiction of the Small Claims Court, but still low enough to make Superior Court of Justice fees unjustifiably high. There is also the lengthier and more complex procedure in the higher court.
However, even though the Rules of Small Claims Court prohibit claiming more than $25,000.00 in small claims court, it does not mean that the gate is closed for those who suffer damages in higher amounts, such as $26,500.00. The caveat is that you, as the creditor, must decide what is more important:
- Do you want to claim the full amount you are owed, or
- Is it more important to have the case heard in the Small Claims Court, where the costs are lower and the procedure simpler?
If it is more important for you to claim through the Small Claims Court, you can forego a portion of the claim in the amount that represents the difference between the amount to be claimed and the $25,000.00 monetary jurisdiction of the Small Claims Court (e.g. if the claim is for $26,500.00, $1,500.00 must be foregone).
In order to forego a certain amount of the claim, your intention to do so should be clearly indicated in the plaintiff’s claim.
It must also be noted that, under such circumstances, if you decide to forego a portion of the claim, this decision will be final, and you will not be able to reconsider at a later stage of the procedure. Further, if you are unsuccessful in the Small Claims Court, you will not be able to begin another lawsuit for the full amount in the Superior Court of Justice.