What To Do When You Have Been Sued

Please Note

 

 

Nothing on this web site should be viewed as creating an attorney-client relationship between you and our law firm, or any of our attorneys. The information here is general in nature and should not be viewed as applying to your specific circumstances. Only a qualified consumer rights attorney can advise you about your specific situation. Hyde & Swigart are California consumer rights attorneys. State laws, and the interpretation and rulings on federal laws, are different in each jurisdiction. If you feel you need consumer rights legal advice, contact Hyde & Swigart at (619) 233-7770 for a free consultation.


 

 

I think that I may have been sued. How do I know for sure?

You will be "served." In most states, the first step in any lawsuit is the drafting of the Complaint. This is done by the Plaintiff. The Plaintiff is the person who feels he has been wronged in some way. Sometimes, the person wronged is a consumer who feels a debt collector has abused him while trying to collect a debt. Other times the person wronged may be a company that feels you owe them money. Either way, that person drafts a Complaint that states the reasons the Plaintiff believes he has been wronged and what remedies he believes he is entitled to from the Court. (Often, money.)

After the Complaint has been written, the Plaintiff takes it to the Clerk's Office in State or Federal Court where a "Summons" is issued to the Plaintiff. That Summons is a document from the Court stating the name of both plaintiff and defendant, the title and file number of the case, the court and its address, the name and address of the plaintiff's attorney, and instructions as to the need to file a response to the complaint within a certain time (such as 30 days after service), usually with a form on the back on which information of service of Summons and Complaint is to be filled out and signed by the process server.

A copy of the Summons must be served on each defendant within a certain time frame (such as 120 days from issuance) to start the time running for the defendant to answer the Complaint.

After service to the defendants, the original Summons, along with the "Proof of Service" proving the Summons and Complaint were served, is filed with the Court to show that each Defendant was served. A Summons differs from a Subpena, which is an order to witnesses to appear.

If you have been "served," usually by a person coming to your home and handing the paperwork to you, you have been "sued."

 

How can I be served?

It depends on the jurisdiction. A non-complete list of common examples include:

(1) You can be served in person. That is, a process server will walk up to you and hand you the papers. If you refuse to accept them, the process server will simply drop them on the ground. Refusing to take the papers does not mean you were not served. A person is served as soon as the person is handed the papers.

(2) If the process server cannot give the paper directly to the you, for example, if you are not home, then you can be served in substitution. The process server leaves a copy with a competent adult member of your household or business (18 years of age, living in the same home or be the person in charge at the place of business.) Then a second copy is sent, by first class mail, with proper postage, in an envelope addressed to the you, to the address where the first copy was left. The party is considered served ten days after the copies are mailed. The person who made the efforts to serve the party in person must write a Declaration of Due Diligence (under oath) to file with the Court. The Declaration of Due Diligence must tell, in detail, what efforts he/she made to serve the party in person. This Declaration must be filed along with the Proof of Service also signed by the person who served the papers.

(3) If a person is a corporation, the process server can serve either the company's director, its executive officers (for example, the CEO, treasurer, president), or its designated agent for service of process-a person or a company the defendant named to accept lawsuit papers on its behalf. You can get the name and address of the agent for service of process by contacting the Secretary of State's office at 1500 11th Street, 3rd floor, Sacramento, California 95814, or by accessing their web site at www.ss.ca.gov.

(4) In some very unusual circumstances, you can be served by posting or by publication in a newspaper. The Plaintiff must obtain permission from the Court to do this.

(5) Your filing of a Response (or Answer) makes it unnecessary to prove that you have been formally served the Summons and Petition (or Complaint). By filing the Response (or Answer) you shows that you know about the legal action and agree to the Court hearing the case.

(6) A General Appearance acts like the service of process because you or your attorney, comes into court or files papers with the court in a way that shows consent to the court hearing the matters in the law case.

 

Who can serve me?

Not the person suing you. It can be any person who is at least 18 years old and not involved in the case. The person who serves the papers will have to fill out a Proof of Service form telling what they gave (served) you. It can also be the Sheriff's Office, but this is somewhat rare. It is usually a "process server" - a person that serves people for a living.


Can I be served at my parents house, where I used to live, by giving the papers to my parents or siblings?

No.


Can I be served at the residence where I used to live - I have moved since then - by giving the papers to my old roommate?

No.

Can I be served at the residence where I used to live when I was married and giving the papers to my former spouse?

No.


What Court can I be sued in?

This is a complicated question and you need to speak with an attorney on this. However, it is usually where you currently live or where you entered into the contract. If the case involves real estate, it is usually where the real estate is located.

 

 

OK, I think I have been sued. Now what?

You need to consult with an attorney. At Hyde & Swigart, we do not charge for a consultation, and if we agree to represent you we will tell you up front what costs and fees will be involved. We do not charge those wishing to file a lawsuit against someone, but we may charge you if you are being sued and you want us to defend you - but even then we may not charge you, depending on your case. However, you can be sure after the free consultation that you will know what charges, if any, for which you will be responsible.


How long can I wait after being served to take action?

Do Not Wait! After you are served, you have only a short time to respond. In Federal Court this is twenty days, in California Superior Court you get thirty days. It takes time to write the proper response, so do not wait until the last day.


What happens if I do not respond?

The Court will issue a "Default" because it believes you were made aware of the lawsuit and refused to respond. The Plaintiff will then get a "Default Judgment" against you. In other words, you will lose the case, automatically.

I was never served and now I have a default judgment against me. This does not seem fail. What can I do?

You are correct, this is not fair. Getting a judgment against you without being served denies you "due process of law."

However, someone said they served you. You can find out what they claim by contact the Clerk of the Court and asking for a copy of the Proof of Service for the service of the Summons and Complaint on you.


I was never served and now I have a default judgment against me. Can I get this reversed?

Probably. However, it gets harder and harder to do this as time goes on. Do not wait - contact an attorney as soon as you are aware of the Default Judgment. The Court takes into account how long you waited when deciding whether to "set aside" the judgment.


Now that the other side has a Judgment against me, what can they do?

Many things. You need to consult an attorney about your specific situation. Common examples of what they can do is (1) Garnish your wages, (2) Attach your bank account, or (3) put a lien on your home.