How do I file a small-claims case in Delaware to recover money owed?
In Delaware, people commonly bring money-claims in a Justice of the Peace Court by filing a complaint so the court can issue process and notify the defendant. The court generally issues a summons on filing and sets a short time for the defendant to appear. Service rules set minimum advance notice periods for hearings in some summary proceedings and require filing proof of service with the court. Court rules also explain how parties may appear and exchange papers after the complaint is filed.
If the defendant does not appear, the justice may enter judgment after a hearing or upon default. For certain types of claims involving recovery of specific property, special replevin rules apply that require a written statement of claim and specify service and stay procedures for taking possession of items.
Current Delaware law
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The deadline that matters
Notice and complaint generally must be served at least 5 days and not more than 30 days before the hearing 25 Del. C. § 5705.
What Delaware law says
When a claim is filed in a Justice of the Peace Court, the justice shall issue a summons to the defendant immediately on filing and set the defendant's appearance within a short time frame, with limited adjournments allowed, and judgment may follow if the defendant fails to appear or after a hearing 25 Del. C. § 2734. For replevin actions, a written statement of claim must be filed before issuance of summons, and the statute sets procedures for service, notice by certified letter if service cannot be perfected, and a 15 day stay after judgment before the plaintiff may dispose of recovered items 10 Del. C. § 963210 Del. C. § 9633. Summary or possession proceedings require that notice and complaint be served at least 5 days and not more than 30 days before the hearing, and that proof of service be filed with the court 25 Del. C. § 5705 and the action is commenced by filing a complaint which triggers issuance of process and a notice stating time and place of hearing 25 Del. C. § 5704. Court civil rules explain service, when a defendant may appear, and timing for filing responsive papers Del. J.P. Ct. Civ. R. 5.
What to do
A common first step is to complete and file the court complaint so the court can issue a summons (the in-app filled claim form is often the next step).
A common next step is to arrange service of the notice and complaint on the defendant in a manner allowed by statute and file proof of service with the court.
A common step is to gather and organize evidence that supports the claim, following an evidence checklist to bring to the hearing.
A common option is to be prepared to appear on the scheduled hearing date or to file a written notice of appearance according to court rules.
A common step when the defendant does not appear is to request the court enter judgment or follow the court's procedures for default.
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Common questions
How soon will the defendant have to appear after I file?
After filing, the justice issues a summons and typically sets a short appearance time; the statute allows only limited adjournments and contemplates quick hearings 25 Del. C. § 2734.
What proof of service is required?
For summary or possession proceedings, the notice and complaint plus proof of service must be filed with the court before the hearing or within five days after service; certified or registered mail return receipts can serve as proof 25 Del. C. § 5705.
Do I need a special written statement for replevin claims?
Yes, replevin actions require a written statement setting out the necessary averments before a summons is issued, and special service and stay rules apply 10 Del. C. § 963210 Del. C. § 9633.
Can a defendant appear if they have not been served?
Yes, except where statute provides otherwise, a defendant may appear even if a summons has not been served by filing and serving a notice of appearance or responsive pleading under court rules Del. J.P. Ct. Civ. R. 5.
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This page provides legal information about Delaware law, not legal advice. CiteLaw is not a law firm and does not represent you. For advice about your specific situation, consult a licensed attorney.
