Bill Text: MI SB1103 | 2017-2018 | 99th Legislature | Engrossed

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Bill Title: Civil procedure; small claims; general amendments related to e-filing provisions; provide for. Amends secs. 8401a, 8402, 8403, 8404, 8405, 8406, 8409, 8412, 8420 & 8423 of 1961 PA 236 (MCL 600.8401a et seq.).

Spectrum: Partisan Bill (Republican 1-0)

Status: (Engrossed - Dead) 2018-12-04 - Referred To Committee On Judiciary [SB1103 Detail]

Download: Michigan-2017-SB1103-Engrossed.html

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SB-1103, As Passed Senate, December 4, 2018

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

SENATE BILL NO. 1103

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1961 PA 236, entitled

 

"Revised judicature act of 1961,"

 

by amending sections 8401a, 8402, 8403, 8404, 8405, 8406, 8409,

 

8412, 8420, and 8423 (MCL 600.8401a, 600.8402, 600.8403, 600.8404,

 

600.8405, 600.8406, 600.8409, 600.8412, 600.8420, and 600.8423),

 

section 8401a as amended by 1998 PA 547, sections 8402 and 8409 as

 

amended by 1991 PA 192, sections 8404 and 8412 as amended by 1984

 

PA 278, section 8405 as amended by 1996 PA 579, and section 8420 as

 

amended by 2005 PA 151.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 8401a. (1) The state court administrator shall prepare

 

instruction sheets instructions clearly explaining in plain English

 

how the small claims division functions and how to commence and

 

defend an action in the small claims division. A copy of the

 

instruction sheet The instructions must be given to the claimant

 

upon filing a claim. Copies of the instruction sheets shall be made

 

available at the office of each clerk and deputy clerk of the

 

district court and a copy of the defendant's instruction sheet

 

shall be sent by the available at each district court and

 

electronically. The clerk or deputy clerk of the district court

 

shall send the instructions to the defendant along with the copy of

 

the affidavit statement of claim served upon the defendant under

 

section 8404.

 

     (2) In addition to general instruction sheets, instructions,

 

the state court administrator shall prepare instruction sheets

 

instructions under subsection (1) specifically for an action under

 

section 73109 of the natural resources and environmental protection

 

act, 1994 PA 451, MCL 324.73109.

 

     Sec. 8402. (1) An action shall be is commenced in the small

 

claims division by filing with the clerk or a deputy clerk of the

 

district court an affidavit a statement of claim and 1 copy of the

 

affidavit statement of claim for each defendant to be served. The

 

form and contents of the affidavit shall statement of claim must be

 

as prescribed by statute and the state court administrator. On the

 

same form as the affidavit statement of claim there shall must be

 

printed a notice directing the defendant to appear and answer as

 

prescribed in section 8404.

 

     (2) The full and correct name of the plaintiff shall must be

 

given, and the affidavit shall statement of claim must state

 

whether the plaintiff is a corporation, partnership, sole

 

proprietorship, or individual. If the plaintiff was acting under an

assumed name or business name at the time when the claim arose, the

 

assumed name or business name shall must be given.

 

     (3) The affidavit, in boldface type, shall statement of claim

 

must inform both parties of the right to removal before trial from

 

magistrate jurisdiction, if applicable, and removal before trial to

 

the general civil division. The affidavit shall statement of claim

 

must inform the parties of rights waived if they choose to remain

 

in the small claims division.

 

     Sec. 8403. Printed affidavit Statement of claim forms for the

 

commencement of commencing actions in the small claims division

 

shall must be available at the office of each clerk and deputy

 

clerk of the district court. who The clerk or deputy clerk shall

 

prepare such affidavit the statement of claim for a claimant upon

 

request.

 

     Sec. 8404. (1) Upon the filing of the affidavit, statement of

 

claim, the clerk or deputy clerk shall cause a copy of the

 

affidavit statement of claim to be served upon each defendant with

 

a notice directing the defendant to appear and answer before a

 

judge of the small claims division. The notice shall must be in a

 

form prescribed by the state court administrator and shall must

 

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 section 8401, or the amount of the claim stated in

 

the affidavit, statement of claim, 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 under section 8410.

 

     (2) The clerk shall instructions under section 8401a must

 

inform the plaintiff and defendant that evening and Saturday court

 

hours may be made available upon written request and need shown.

 

     Sec. 8405. Except as otherwise provided in this section,

 

service of the affidavit statement of claim and notice to appear

 

and answer shall must be made upon the defendant by certified mail,

 

return receipt requested and deliverable to the addressee only, by

 

personal service, or upon a showing that service of process cannot

 

reasonably be made as provided by this section, the court may, by

 

order, permit service of process to be made in any other manner

 

reasonably calculated to give the defendant actual notice of the

 

proceedings and an opportunity to be heard. Where If service by

 

certified mail is made, it shall must be made by the clerk and the

 

receipt of mailing together with the return card signed by the

 

defendant shall constitute proof of service.

 

     Sec. 8406. (1) The date for the appearance of the defendant

 

provided in the notice shall must not be less than 15 days nor more

 

than 45 days after the date of the notice. The person filing the

claim shall receive from the clerk a copy of the affidavit

 

statement of claim and notice of hearing. The plaintiff shall

 

appear on the date shown in the notice of hearing and have all

 

books, papers, and witnesses necessary to prove the claim. 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 that must be not less than 15 days nor more

 

than 30 days after the date of the issuance of issuing the new

 

notice.

 

     (2) 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 is not be jurisdiction to render

 

judgment, unless the defendant appears on the appearance date and

 

does not request a continuance. If the defendant was not served

 

within the minimum time specified, the matter, upon request of

 

either party, shall must be continued for not less than 7 days.

 

     Sec. 8409. (1) Attachment or garnishment shall must not issue

 

from the small claims division prior to before judgment but

 

execution may issue in the manner prescribed by law and the

 

judgment may be enforced in any other manner provided by law and

 

not prohibited under the provisions of this chapter.

 

     (2) The state court administrator shall prepare instruction

 

sheets instructions clearly explaining in plain English how, and

 

under what circumstances, a plaintiff in whose favor a judgment has

 

been entered may request the court to issue execution, attachment,

 

or garnishment to enforce payment of the judgment. A copy of the

instruction sheet shall instructions must be offered to the

 

plaintiff at the same time as a copy of the judgment is given to

 

the plaintiff under section 8410. Additional copies of the

 

instruction sheets, instructions, and forms for writs of

 

garnishment, shall must be made available at the office of each

 

clerk and deputy clerk of the district court.

 

     Sec. 8412. Unless a party removes a small claims action to the

 

district court pursuant to under section 8408(4), all parties to an

 

action in the small claims division shall be considered to have

 

waived the right to counsel, the right to trial by jury, the right

 

to recover more than the applicable jurisdictional amount as

 

prescribed by section 8401, and any right of appeal, except that if

 

the action is heard before a district court magistrate pursuant to

 

under section 8427, the parties have a right to an appeal to the

 

small claims division of the district court as provided by section

 

8427. The affidavit statement of claim prescribed in section 8402

 

shall must contain a statement that the plaintiff understands that

 

he or she has waived these rights.

 

     Sec. 8420. (1) A fee of the following amount, as applicable,

 

shall must be charged and collected for the filing of the affidavit

 

statement of claim 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.

 

     (2) A fee in an amount equal to the prevailing postal rate for

the service provided shall must be charged and collected for each

 

defendant to whom a copy of the affidavit statement of claim is

 

mailed by the clerk. The fee must be determined by the state court

 

administrative office and must include only the cost of certified

 

mail with restricted delivery, postage, return receipt, printing or

 

copying, and envelope. A fee of $15.00 shall must be charged and

 

collected for the issuance of a writ of execution, attachment, or

 

garnishment and for the issuance of a judgment debtor discovery

 

subpoena. Except as otherwise provided in this chapter, a fee or

 

charge shall must not be collected by an officer for any service

 

rendered under this chapter. or for the taking of affidavits for

 

use in connection with any action commenced under this chapter.

 

     (3) Of each filing fee under subsection (1)(a) collected

 

within the month, at the end of each month, the clerk shall

 

transmit $11.00 to the treasurer of the district funding unit in

 

which the action was commenced, of which not less than $5.00 shall

 

must be used by the district funding unit to fund a drug treatment

 

court if one is planned, established, or operated in that judicial

 

district. If the entire amount attributable to the $5.00 portion is

 

not needed for the operation of a drug treatment court, the balance

 

that is not needed for that purpose shall must be used for the

 

operation of the district court. If a drug treatment court is not

 

planned, established, or operated in that judicial district, all

 

$11.00 shall must be used for the operation of the district court.

 

The clerk of the district court shall transmit the balance of the

 

filing fee to the state treasurer for deposit in the civil filing

 

fee fund created in section 171.

     (4) Of each filing fee under subsection (1)(b) collected

 

within the month, at the end of each month, the clerk shall

 

transmit $17.00 to the treasurer of the district funding unit in

 

which the action was commenced, of which not less than $5.00 shall

 

must be used by the district funding unit to fund a drug treatment

 

court if one is planned, established, or operated in that judicial

 

district. If the entire amount attributable to the $5.00 portion is

 

not needed for the operation of a drug treatment court, the balance

 

that is not needed for that purpose shall must be used for the

 

operation of the district court. If a drug treatment court is not

 

planned, established, or operated in that judicial district, all

 

$17.00 shall must be used for the operation of the district court.

 

The clerk of the district court shall transmit the balance of the

 

filing fee to the state treasurer for deposit in the civil filing

 

fee fund created in section 171.

 

     (5) Of each filing fee under subsection (1)(c) collected

 

within the month, at the end of each month, the clerk shall

 

transmit $23.00 to the treasurer of the district funding unit in

 

which the action was commenced, of which not less than $5.00 shall

 

must be used by the district funding unit to fund a drug treatment

 

court if one is planned, established, or operated in that judicial

 

district. If the entire amount attributable to the $5.00 portion is

 

not needed for the operation of a drug treatment court, the balance

 

that is not needed for that purpose shall must be used for the

 

operation of the district court. If a drug treatment court is not

 

planned, established, or operated in that judicial district, all

 

$23.00 shall must be used for the operation of the district court.

The clerk of the district court shall transmit the balance of the

 

filing fee to the state treasurer for deposit in the civil filing

 

fee fund created in section 171.

 

     (6) If the affidavit statement of claim 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.

 

     Sec. 8423. (1) If a defendant in a small claims action has a

 

claim against the plaintiff , which claim that is for an amount

 

over the jurisdiction of the small claims division but of a nature

 

which that would be subject to counterclaim in accordance with

 

rules of the supreme court, he the defendant may commence an action

 

against the plaintiff in a court of competent jurisdiction. and If

 

the defendant commences an action, at or before the time set for

 

the trial of the small claims action, the defendant shall file with

 

the clerk or deputy clerk of the small claims division wherein

 

where 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. He shall attach

 

to the affidavit a true copy of the complaint filed by him the

 

defendant 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. Thereupon the judge of the small claims division

 

shall order that the small claims action shall be transferred to

 

the court set forth in the affidavit and he complaint, the judge

shall transmit all files and papers in the action to the other

 

court, and the actions shall then must be tried together in the

 

other court.

 

     (2) 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.