Can You Sue Someone for More Than They Have? [2024]

Are you considering suing someone but are not sure that the other party has the funds to pay? Don’t let your assumptions stop you from seeking the settlement you deserve. There are many options to be explored in order to secure a settlement after a successful small claims court case. In this article, we will explore the maximum claim limits for each state and offer various options to ensure your best chances of securing a settlement reward. 

What Can You Sue For in Small Claims Court?

Each state has a different maximum amount that can be pursued in small claims court. In the table below, you will find the maximum for each state and a link to the Small Claims website or handbook to browse the rules that apply to your state.  

How to Estimate the Amount to Sue For

It is important to be aware of every financial aspect that can be recovered in your claim. Estimating your total damages is a good way to ensure that you have all the documentation you need gathered together and an idea of how much to ask for when it is time to file the claim. Below, we will explore the four main categories of recovery that you should add together to get your total estimate. 

Medical Expenses

These include any uninsured expenses or deductible payments, transport to/from appointments, or any other medical costs that you paid out of pocket. 

Loss of Income

If you had to miss work or use PTO due to your injury, you can include the missed wages from that period in your damage estimate. As for paid vacation time, you are entitled to recover those wages in cases where unlimited sick time is not offered by the employer. 

Pain and Suffering

This category includes the non-tangible aspect of recovery, such as grief, physical pain, or emotional distress. These types of damages require solid evidence to prove, but recovery can be a difficult and painful process, making these claims valid. Since there are no receipts that come with intense emotions, these damages are often calculated by one of two methods in court but can be harder to estimate on your own. It is common to add up all medical costs and multiply that number by 3-5 in order to estimate this category of damages. For instance, if a person paid $100 in medical care for a mild but painful injury, they would multiply that by 3 to estimate their pain and suffering damages at $300. 

Property Damage

Though damage to property does not occur in every case, it should absolutely be included wherever applicable. 

Before filing a small court claim, be sure to check the local limit or utilize the chart above to see the numbers. If your injury is severe, you may be required to file your claim in a formal court setting. 

How to Exceed the Small Claims Limit

In order to sue for an amount that exceeds the small claims limit, the claimant would need to file a claim in civil court. Otherwise, typically, claimants need to waive their ability to obtain any amount over the state's small claim limit. 

Various Settlement Recovery Options

Even though a person may have won their case, the fight is not over yet. Now, they must go through the process of collecting the money from the defendant. The courts are not likely to get involved in the money collection, so, with the help of your local sheriff, there are a few paths to collect what you are owed successfully. 

Bank Levy

If you know the defendant's banking institution, you can seek to recover the settlement from them. To do this, a Writ of Execution will need to be obtained from the courts and passed along to the sheriff so that they may work with the banking institution to enforce the court’s ruling. 

Wage Garnishment

If you seek to collect the money directly from the defendant's paycheck, you must once again seek a Writ of Execution for the sheriff to work with the employer to enforce the judgment. This action is called wage garnishment and can take up to 25% of the defendant’s wages until the claim is satisfied. If the defendant can prove that their funds are necessary to provide basic support, this may not be a viable option for recovery.    

Real Estate Lien

Lastly, if the other party has real estate property, you can then claim a lien (a part of the value of the property). This option is not a quick recovery as you are claiming a portion of the proceeds of the house and may need to wait for its sale or transfer before seeing any money. This process can be achieved by registering the court’s ruling with the land records office in the county where the other party owns the property.

Other Options for Recovery

There are a few less frequent options as well. If the defendant was a business, you may be able to have the sheriff collect the settlement from the cash register. Also, if the other party has valuable property (art, jewelry, car), you may ask the judge to turn the property over to you. In these cases, ensure there is no pre-existing loan on the item, as it may end up costing you. 

You may be able to request a Judgment Debtor's Statement of Assets form SC-133. This will detail what the other party owns, where they work, and where they bank. This form will give you all the pertinent information needed to begin recovering your settlement. 

Starting the Small Claims Court Process

At this point you may be wondering what the small claims process looks like. Below, we will explore the steps of small claims court and what will be required of both parties at each step. 

Demand Letter

In most states, the small claims process starts with a demand letter. This letter will lay out the details of the incident and formally request the money you are owed. In most states, the plaintiff (person wishing to file the claim) must wait 10 days before the claim can be filed. The other side may choose to avoid litigation and pay your request based on the letter.

A demand letter is not necessary in cases where you have a restraining order against the other party or if it would create a dangerous situation. 

File Claim

Once you have exhausted all reasonable steps to resolve the case outside of court, it is time to file your claim. Step one is to figure out where you need to file your case. Research the guidelines, where the claim occurred, and where you live. Then, gather all the required documentation, such as records, contracts, and witnesses. You will need your complete name and address as well as the names and addresses of the persons, or business, you are suing. Include a concise statement with the details of your claim and the amount you intend to recover in damages. Finally, make sure you bring money for the filing fees. Check your state for the fee amount and how that money is collected. Courts commonly accept cash or money orders (most don’t accept personal checks).

At the courthouse, look for the small claims department. This is where you will file your paperwork with the clerk. You will be asked to swear under oath that your claim statement is true and may also be asked to sign an affidavit swearing you have made a reasonable effort to resolve the issue. 

Service of Claim

The claim must be served to the defendant once filed. The clerk is can give information on how to obtain service. A local sheriff’s department may be used for a fee (usually $25-$50), or there are private process servers that can be hired to serve the defendant. Proof of service (or attempted service) will be required. 

Response

The defendant will have 14 days to respond to the claim. At this stage, the defendant may choose to acknowledge your claim and pay the damages. The defendant may request a hearing or, potentially, countersue. If a hearing is requested, a date will be set, and both parties must arrive on that date or request a postponement in writing. Lastly, the defendant may request a jury trial, in which case the clerk will notify you by mail of the next steps to take and what rules and fees will apply going forward. 

Mediation

Before the hearing date, the judge will offer both parties the opportunity for mediation. If both parties agree to the mediation, they will meet privately with a trained, unbiased party to discuss the claim and potential resolutions. At this point, the claim has a few possible outcomes:

• If the defendant does not respond, the plaintiff can request a default judgment. Once filed, the clerk can enter a judgment against the defendant for the amount requested and all fees associated with the claims process. 

• If the plaintiff does not attend, the case will be dismissed and cannot be re-filed in the future.

• If both parties go and agree and a settlement has been reached, they will act on whatever agreement was made in the mediation. 

• If both attend the mediation and disagree, the hearing will continue, and a judge will make the final decision on the case. 

• If both parties refuse the mediation, the case moves forward to the hearing. 

Hearing

At the hearing, the judge will announce your case and give a brief explanation of the proceedings and details. They will then swear in both parties and any witnesses. The person who filed the claim will begin the statements. They will tell their side of the story, present evidence, and call upon their witnesses. Once finished, the defendant will have the opportunity to do the same. After both sides of the story have been presented, and all questions have been asked, the judge will decide who wins the case and the amount the winner will receive. 

What if You Can’t Pay or Vice Versae?

A few different paths can be taken to try and recover the settlement amount. In the sections below, we will dive deeper into the options that you can take if you are either unable to pay a lawsuit or facing another person who is. 

What Happens If You Lose a Lawsuit and Don’t Pay

The same settlement methods applied to the defendant above can be reversed on you if you end up owing money in a lawsuit. That includes wage garnishment, real estate liens, seizing of property, and money in your bank account. 

If you are unable to pay the judgment, there are a few options you may take. First, you can try to negotiate a post-judgement settlement with the other party. Their main goal is to receive compensation, so they may be open to a lesser amount or payment plan. Additionally, you can consider formally declaring bankruptcy. If you take the correct steps on this path, creditors no longer have the ability to collect from you. This second option should only be considered in situations where you have multiple debts to satisfy and have thoroughly examined your financial state and options.

What Happens if You Sue Someone and They Can’t Pay

As stated above, there are three main options for collecting the settlement when someone says they cannot pay. These options include wage garnishment, real estate lien, and bank levy. If the debtor wants to pay but is currently unable, they may be interested in creating a payment plan with you directly. In these cases, a formal contract should be written to lay out the agreement. If the person is unable to pay and is not putting forth an effort to do so, this amount will become a debt and can be collected in future wages or earnings.  

How a Personal Injury Attorney Can Help Recover Compensation

If you are concerned that you will not be able to recover the settlement from your case, it may be in your best interest to contact a lawyer. Not only can they provide a strategy for your case, but they can also negotiate and seek out other payment methods, such as the ones listed above. They have experience turning over every stone to ensure the debt for your claim is satisfied. If you are considering seeking help with your case, check out our Expertise’ Directory to locate experienced and professional attorneys near you.