Beware: Service of an Unfiled Complaint by a Sneaky Creditor

Normal Method To Start A Lawsuit

Normally, a creditor (plaintiff) will start a lawsuit by filing a Summons and Complaint with the appropriate court.  The court assigns a case number to the lawsuit.  The Complaint sets out the reason for the alleged claim. The Summons sets out how and when the person sued (defendant) must respond to prevent entry of a judgment against them. The plaintiff then serves the defendant with a copy of the filed Summons and Complaint, both of which will show the case number. The defendant typically has twenty days after being served with the Summons and Complaint to respond appropriately.  If the Defendant fails to timely respond (usually by filing an Answer), the plaintiff is entitled to a (default) judgment.  The timely response needs to be filed with the court and the plaintiff.

Sneaky: Service Of An Unfiled Complaint

In Washington, however, unlike many other states, a plaintiff can start a lawsuit by merely serving an unfiled Summons and Complaint on a defendant. In other words, in Washington, the Summons and Complaint do NOT have to be filed with the court to start a lawsuit. To prevent entry of a default judgment, the defendant still MUST file a timely response to the Complaint. In this scenario, since there is no case filed with the court, the Defendant can only file a response with the plaintiff.   A Defendant’s failure to timely respond to the Complaint can lead to entry of default judgment.  In other words, if the defendant does not respond within the twenty days, the plaintiff can go to court, file the lawsuit, assert that the defendant did not object and ask the court to enter judgment against the defendant. The defendant does not have any right to be told that the lawsuit was actually filed or that judgment was entered. If a defendant does timely respond, a defendant should also demand that the lawsuit be filed within 14 days of the response.  Failure to make such a request means that the plaintiff can wait as long as it wants to file the lawsuit.  In other words, if a Defendant does not demand that a lawsuit be filed, the Plaintiff can, for example, wait months and then file the lawsuit; it leaves a defendant in limbo as to what a Plaintiff might do.

[Note: A defendant responding to an unfiled Complaint must be prepared to prove that they timely responded. As a result, at a minimum, a response by regular and certified mail with return receipt requested would be prudent. Personal service on the plaintiff with acknowledgment of receipt is not required but would also be useful. Also, a Defendant served with an unfiled Complaint might periodically check with the court to see if the lawsuit has since been filed. If a defendant has timely responded and then a lawsuit is filed, your response should be in the court file. If it is not, file it immediately with the court.]

Why Might A Creditor Serve An Unfiled Complaint?

A plaintiff does not need to pay a filing fee if a case is not filed with the court. So, a creditor can serve a Complaint and see if the Defendant responds. If there is no response, then they can spend the money for the filing fee and know they will (likely) get a judgment. If the defendant responds, they may be able to work out a settlement deal without having to spend the filing fee.  Also, some defendants do not know that if they do not timely respond a judgment can be entered.

Procedure After Responding To An Unfiled Complaint

If a Defendant timely responds to an unfiled Complaint AND demands that a lawsuit be filed, the plaintiff has two choices: (1) The Plaintiff must file the lawsuit and the Defendant’s Answer with the court within 14 days, or (2) The Plaintiff can choose to not file the lawsuit within the 14 days and it is as if the Summons and Complaint were never served; judgment cannot be entered. If the lawsuit is filed, the Plaintiff should provide the case number to the Defendant.

Do Not Be Fooled – Unfiled Complaint

If you are served a Summons and Complaint that does not have a case number, that does NOT mean that you are not being sued. You should check with the court to see if the case was actually filed. If the lawsuit was filed, then get the case number. If the case was filed, then you need to follow the instructions in the Summons and file a timely response with the court and plaintiff. If the case was not filed with the court, you MUST STILL file a timely response with the Plaintiff in order to prevent entry of a judgment against you.

Some creditors count on you not knowing these rules.  Don’t be fooled.  Be prepared.   If you have been served and you have questions, we can help.  You know where to find us.

 

Comments

  1. Amanda Rhys says

    Hi,

    Can a defendant just “drop off” paperwork at a plaintiff’s home without having any contact with the plaintiff or he or she knowing there are documents at their door? Or do they have to communicate with the plaintiff via mail and have a return receipt to acknowledge their receipt? Does a notice of appearance count as a response to service? I am acting pro se and served the defendant 10 days ago but have not filed a lawsuit.

    Thanks,

    Mandy

    • Your question cannot be answered with the information provided. Further, it is not exactly on point for the article. Howe a defendant responds to a complaint is set out in the applicable court rules. I am not sure what state you are in or what court in the state. You might actually hire an attorney for a quick review to give you some basic direction in suing another.

  2. I had this exact scenario happen. I sent my answer, but I don’t think it requested for them to file within 14 days. I wrongly believed they only had 14 days to file. Anyway, they ended up filing a few months later and I didn’t know until my employer informed me of a wage garnishment. I was never contacted to be informed that they had filed or that there was a court date. In the court records they filed something saying they mailed me things, but they actually did not. Is there anything I can do. I thought I was doing everything right by sending an answer, and checking the court for a couple of months. It feels so sneaky!

    • Agreed – some are very “sneaky”. You might be able to file a motion to vacate the judgment they obtained. But, you should hurry as there is likely a limit on when you can ask for that relief.

  3. We are trying to buy a house and this just happened to us 😞. Some girl served my husband unfiled papers. They are dated July 3rd and today is July 21st, it it normal they wait that long? And the papers made it seem like it’s 20 days from date on letter with the signature, not 20 days from being served?

    • Normally, it’s 20 days from the date you are actually served. The reason for that is that you have to have a chance to respond. The Summons should say as much. If there is an accompanying letter that says something different, then that might be a violation of consumer protection laws (to deceive you into thinking you don’t have time to respond) amongst others. You should have at least 20 days from the date you are served.

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