How to File a Counterclaim as a Defendant in Vermont Small Claims Court
If someone has sued you in Vermont small claims court and you have your own monetary claim against them from the same dispute, you can file a counterclaim as part of your Answer — essentially suing the plaintiff back within the existing case. The counterclaim process is built into Form 100-00126, the same form you use to respond to the original complaint. But there are fee tiers, a $10,000 cap with real consequences if your claim exceeds it, and procedural steps that the blank form does not explain. Here is how it works.
The Basics
A counterclaim is filed in Section 3 of Form 100-00126 (Small Claims Answer). You describe your monetary claim against the plaintiff, state the amount, and file it with your Answer. The court then hears both the original claim and your counterclaim at the same hearing.
Key rules under V.R.S.C.P. Rule 3 and 12 V.S.A. § 5531:
- Your counterclaim must arise from the same transaction or occurrence as the plaintiff's claim
- The maximum recovery in small claims court is $10,000
- You must pay a separate filing fee when you submit the counterclaim
- The counterclaim is filed with your Answer — same deadline (30 days from service), same filing methods
Filing Fees
Vermont uses a two-tier fee structure for small claims counterclaims:
| Counterclaim Amount | Filing Fee |
|---|---|
| $500 or less | $25 |
| $501 to $10,000 | $35 |
If you cannot afford the fee, file Form 600-00228 (Application to Waive Filing Fees and Service Costs) at the same time. The court reviews your income and may waive the fee entirely.
Pay the counterclaim fee when you file your Answer. Methods vary by county — in person (cash, check, or card at the clerk's office), by phone for email filers, or electronically through Odyssey File & Serve (2.89% card fee or $1 eCheck).
The $10,000 Cap Decision
This is the part where defendants need to pause and think carefully.
If your counterclaim is for $10,000 or less, the math is simple — file it in Section 3 and proceed. But if you believe you are owed more than $10,000, you face a choice with permanent consequences:
Option A: Cap at $10,000 and Stay in Small Claims
You can file your counterclaim in small claims court and explicitly agree to cap your recovery at $10,000, waiving any amount above that permanently. If the judge awards you $10,000, that is the maximum — you cannot later sue for the difference.
When this makes sense: the certainty and speed of small claims court is worth more than the excess amount. For example, if you are owed $12,000 and would rather recover $10,000 quickly in small claims than spend $295 on a civil filing fee plus months of general civil procedure for the full amount.
Option B: File in General Civil Court
You can decline to waive the excess, skip the small claims counterclaim, and file a separate civil complaint in the general Civil Division of the Superior Court. The filing fee is $295, and the case follows full civil procedure — discovery, motions, potentially a jury trial. You would then move to consolidate or transfer the small claims action into the civil case.
When this makes sense: the amount above $10,000 is significant enough to justify the higher cost and longer timeline. A $25,000 counterclaim against a contractor is worth the $295 fee and the procedural complexity.
There is no automated transfer mechanism in Vermont small claims. If you want to move a case to general civil court, you file a separate action and a motion to consolidate. Small claims does not "upgrade" on its own.
The Decision Framework
| Your Counterclaim Amount | Recommended Path | Reasoning |
|---|---|---|
| Under $10,000 | Small claims Section 3 | Straightforward, $25–$35 fee |
| $10,000–$13,000 | Consider capping at $10,000 | The $295 civil fee + time cost may exceed the difference |
| Over $13,000 | Separate civil action | The waived amount becomes too significant |
These are rough thresholds, not rules — your decision depends on the strength of your evidence, the likelihood of full recovery, and how much time you can invest.
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The Filing Process
- Complete Section 3 of Form 100-00126 — describe your claim, state the amount, and note whether you are capping at $10,000 or filing for a lesser amount
- Pay the filing fee ($25 or $35) or submit Form 600-00228 for a fee waiver
- File the Answer with counterclaim with the Civil Division clerk — same four methods as the Answer itself (in person, postal mail, email with
/s/signature, or Odyssey File & Serve) - Serve the plaintiff with a copy of your complete Answer including the counterclaim on the same day you file
- File Form 100-00260 (Certificate of Service) to prove service
The counterclaim is part of your Answer, so it follows the same 30-day deadline from service. Do not file the counterclaim separately or after your Answer — they go together.
At the Hearing
When the clerk schedules the hearing, both the original claim and your counterclaim are heard in the same session. The plaintiff presents their case first, you cross-examine, then you present both your defense to the original claim and your counterclaim. The judge may rule on both immediately or mail a written decision.
Prepare evidence for your counterclaim the same way you prepare your defense: printed physical copies of contracts, invoices, photos, emails, and text messages. Upload digital evidence (audio, video) to the Vermont Digital Evidence Portal (VDEP) before the hearing. Witnesses must testify live — written statements from absent witnesses are generally inadmissible.
Common Counterclaim Scenarios in Vermont
Contractor disputes: The contractor sues you for $4,000 in unpaid work. You counterclaim for $6,000 in damage caused by substandard work that required correction. Both claims are heard together.
Security deposit disputes: Your former landlord sues for $3,000 in property damage. You counterclaim for the full $2,100 deposit they failed to return within Vermont's 14-day statutory itemization window under 9 V.S.A. § 4461. If the landlord missed the 14-day deadline, their deductions may be void.
Vehicle sale disputes: The buyer sues you for $2,500 claiming undisclosed mechanical defects. You counterclaim for $1,200 in damage the buyer caused to the vehicle before returning it.
Who This Is For
- Vermont defendants with a legitimate monetary claim against the plaintiff arising from the same dispute
- Defendants weighing whether to counterclaim in small claims or file a separate civil action
- Anyone who needs to understand the fee tiers, the $10,000 cap, and the waiver consequences before filing
Who This Is NOT For
- Defendants who want to dispute the plaintiff's claim but do not have their own monetary claim — that is a defense, not a counterclaim (use Section 1 of Form 100-00126)
- Anyone seeking non-monetary relief (return of property, specific performance, injunctions) — small claims handles money disputes only
- Defendants in consumer debt collection lawsuits — different rules and defenses apply
Frequently Asked Questions
Can I file a counterclaim after I have already filed my Answer?
Vermont procedure requires the counterclaim to be filed with your Answer in Section 3 of Form 100-00126. If you already filed your Answer without a counterclaim, consult the clerk's office about amending your filing — but do not assume you can add it later without a formal motion.
What if my counterclaim is for exactly $10,000?
It fits within the jurisdictional limit. File it in Section 3 with the $35 fee. No waiver is necessary because you are not exceeding the cap.
Does the plaintiff get time to respond to my counterclaim?
Yes. Once you file a counterclaim, the plaintiff receives notice and has the opportunity to respond before or at the hearing. The clerk schedules a hearing date that gives both sides time to prepare.
Can I file a counterclaim if I am also admitting part of the original claim?
Yes. You can admit that you owe some or all of the plaintiff's claimed amount while simultaneously asserting your own counterclaim. The judge evaluates both claims independently and may offset the amounts in the final judgment.
What happens if the judge awards me more than the plaintiff's claim?
The plaintiff pays you the difference. If the judge awards you $7,000 on your counterclaim and the plaintiff $3,000 on their original claim, the net judgment is $4,000 in your favor. The Responding to a Small Claims Case in Vermont guide covers the full counterclaim process, including the cap decision, fee payment, and how offsets work at the hearing.
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