About 16 percent of those cases ultimately go to the sheriff's office for eviction. Most of the other cases are settled before trial.
All civil lawsuits begin when a claim is filed with the court. That filing, called "process," must be served upon the defendant, who then must file an answer with the court, and the case is set for trial in 15 to 30 days. Dispossessory claims differ from regular civil lawsuits in significant ways.
The defendant has 30 days to respond to a regular civil lawsuit by filing an "answer." He gets what amounts to a 15-day grace period if the answer is not filed on time.
Dispossessory claims are "summary proceedings." They are short and simple, and they move very quickly. An answer must be filed within seven days of being served with process, and there is no grace period. A hearing can be scheduled within seven days after the answer is filed.
In a dispossessory claim, the landlord can serve process by a special procedure called "tack and mail." If no one responds when the sheriff knocks on the door of the property, he tacks the process to the door, and then mails a copy to the tenant's last-known address. If the tenant fails to file an answer in seven days, the court issues a writ of posses-sion authorizing the landlord to remove the tenant. However, the landlord cannot get a money judgment unless the tenant is served personally as in regular civil cases.
If the tenant does file an an-swer, either in person at the courthouse or using the magistrate's online filing system, both parties are notified of a trial date by telephone and e-mail. If there is enough time, notices are mailed first-class to the parties' last-known addresses.
Immediately before trial, the court is required by law to en-courage parties to settle their cases. To assist the parties, a professional mediator is available at no extra cost. Most parties seek concessions such as additional time to pay rent or to vacate the property. Although the court is not authorized to order such concessions, the parties often reach agreements in mediation. Those who cannot reach agreements have their trials on the same day.
The magistrate court is a people's court, and it has special liberal pleading laws. The Cherokee County Magistrate Court assumes that any answer filed is intended to be a general denial, even if it admits all the landlord's claims. The court assumes most people are not trained in the law or court procedure, and do not know how to draft pleadings, so it errs toward preserving all the rights of all the parties.
In one recent case, a tenant filed an answer saying she was behind on rent because her rent check was drawn on a closed account and bounced. (That is a crime if done deliberately.) To preserve her rights, the court treated her answer as a denial so the parties could have a mediation session and perhaps a trial.
Although no statistics are kept, a fair number of dispossessory claims filed in the past two years have resulted from foreclosures. The court scrutinizes those cases because of recent nationwide problems involving foreclosure irregularities.
Tenants who lose their cases can appeal to the state court or superior court. They can remain in the property while the appeals are pending if they pay rent into the court registry. That money is held for safekeeping until the appeals court decides who should receive it. Of the 2,114 cases filed through Sept. 30, 2010, nine cases were appealed.
Woody Allen said, "Eighty percent of success is showing up." This is especially true in dispossessory cases. When a landlord fails to appear in court, he loses. But even if a tenant expects to lose his case, just showing up for court buys him at least seven more days to find a new place to live.
Gregory Douds is the chief associate judge of the Cherokee County Magistrate Court. An experienced trial lawyer and a CPA licensed in Maryland since 1989, Douds handles most of the court's small claims and dispossessory cases.