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I was recentley sued in small claims court. The plaintiff did not
appropriately follow the court rules. Our court rules *require* that
before the plaintiff file, they must first give written notice of
demand for payment via certified mail, then give the defendant 8 days
to reply. In addition to being in the court rules and instructions on
the filing affidavit, the affidavit also states "the plaintiff duly
sweats that written demand for payment was made".
I checked with the court clerk and there is no proof of service in the
file as required, nor did I ever receive any. The clerk said I "have
to take it up with the judge".
Would such errors on the plaintiff's part be sufficient to have the
case dismissed?
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jlutnik,
.....
I was recentley sued in small claims court. The plaintiff did not
appropriately follow the court rules.
Then you should nave raised this before or during the suit. Are you
appealing this suit?
Our court rules *require* that
before the plaintiff file, they must first give written notice of
demand for payment via certified mail, then give the defendant 8 days
to reply. In addition to being in the court rules and instructions on
the filing affidavit, the affidavit also states "the plaintiff duly
sweats that written demand for payment was made".
Sounds as if the plaintiff swore that he did give you such a demand and
you failed to ask for proof or rebut his claim during the suit.
I checked with the court clerk and there is no proof of service in the
file as required, nor did I ever receive any. The clerk said I "have
to take it up with the judge".
This is confusing. What makes you believe that he must do anything more
than swear that he did demand payment? Nothing in your post suggests that
you raised this issue while in court.
Would such errors on the plaintiff's part be sufficient to have the
case dismissed?
Dismissed? You said you had been sued so the case is done. You might have
an appeal if you can afford one.
I'm guessing that you are being sued rather than that you have been sued.
You should raise the issue of proof of the demand letter during the suit.
Perhaps the judge will dismiss the case but he may not so have a defense
ready.
Good luck,
Dave M.
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On Apr 6, 9:06 am, jlut...@aol.com wrote:
I was recentley sued in small claims court.
You don't say what state you're in, or even if you're in the USA.
Rules differ and YMMV.
The plaintiff did not
appropriately follow the court rules. Our court rules *require* that
before the plaintiff file, they must first give written notice of
demand for payment via certified mail, then give the defendant 8 days
to reply.
Well, you're not in MD, since we have no such rule here.
Somehow, though, you did get actual notice of their demand, and of the
suit, right? So in what way were you prejudiced by the plaintiff's
failure to follow this rule? I'm assuming you do in fact dispute the
claim.
In most jurisdictions small claims courts are tasked to do
"substantial justice" and are not bound by the strict rules of
evidence and procedure that govern in higher courts. And the judges
may frequently bend the rules that _do_ apply there, to get to the
merits of the claim rather than deciding cases on procedural
technicalities.
My guess is, the rule you mention is intended as a housekeeping
matter, for the benefit of the court, to keep their dockets from
getting clogged with unnecessary suits, as much as for the benefit of
the parties. They want to make sure that cases which can settle
without going to court do so, as often as possible, by requiring
prospective plaintiffs to send a specific formal demand and wait a
specified time for a response before filing suit. But if you the
defendant are going to reject that demand anyway, now that you know
what it is because you got served with suit papers, you, and the
court, are in the same position you would have been in if the rule had
been followed to the letter.
In addition to being in the court rules and instructions on
the filing affidavit, the affidavit also states "the plaintiff duly
sweats that written demand for payment was made".
I'm assuming he "swears" rather than "sweats." Although that was an
interesting Freudian slip.
I checked with the court clerk and there is no proof of service in the
file as required, nor did I ever receive any. The clerk said I "have
to take it up with the judge".
Of course. The clerk can't make the decision to dismiss a claim; only
the judge can.
Would such errors on the plaintiff's part be sufficient to have the
case dismissed?
Maybe. You can certainly raise them as a preliminary issue when you
get to the trial date and appear in front of the judge; maybe you'll
get lucky. But your chances would be better if you could show that
you were somehow legitimately prejudiced by plaintiff's failure to
comply with the rules, i.e. that you were sandbagged or put behind the
8 ball because of what he did and therefore did not have a fair chance
to prepare your defense. But I honestly don't think that will fly if
you do in fact have actual notice of the claim, whether or not you
were formally served yet with the lawsuit papers (which is not clear
from your post - I'm assuming you meant you were not served with the
required pre-suit certified letter, not that you weren't served with
the suit papers). You should come to the trial date prepared to
defend against the merits of the plaintiff's claim, bringing all your
documents and witnesses with you since you may well lose your motion
to dismiss and have to proceed immediately to a full trial of
plaintiff's claim. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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jlutnik@aol.com wrote:
[says procedure not followed]
I checked with the court clerk and there is no proof of service in the
file as required, nor did I ever receive any. The clerk said I "have
to take it up with the judge".
Would such errors on the plaintiff's part be sufficient to have the
case dismissed?
The clerk gave you 100% solid advice. What you need to do is to move
that the court dismiss on the reasons you cited in your post here. It is
100% up to the judge to decide if the case should be dismissed on that
basis and if it would be dismissed with or without prejudice.
The clerk is unable to take any action. Only the judge can decide in
this matter.
-paul
ianal
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jlutnik@aol.com wrote:
I was recentley sued in small claims court. The plaintiff did not
appropriately follow the court rules. Our court rules *require*
that before the plaintiff file, they must first give written
notice of demand for payment via certified mail, then give the
defendant 8 days to reply. In addition to being in the court
rules and instructions on the filing affidavit, the affidavit also
states "the plaintiff duly sweats that written demand for payment
was made".
Would such errors on the plaintiff's part be sufficient to have
the case dismissed?
Perhaps. It seems to me there are two likely ways to deal with this.
One would be to dismiss the case without prejudice, and allow the
plaintiff to file again after he makes his demand as required by law.
The other would be for the court to hear the case, and then grant
judgment to plaintiff (if he's entitled to it) but not include in the
judgment his court costs, and perhaps even reduce it by your court
costs.
In any case, it will not preclude the plaintiff from getting a
judgment in the future, it will only frustrate him temporarily, if at
all.
Stu
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In article <5hihv3de03n8qmgkgsdlj5ar5a25esoda4@4ax.com>,
<jlutnik@aol.com> wrote:
I was recentley sued in small claims court. The plaintiff did not
appropriately follow the court rules. Our court rules *require* that
before the plaintiff file, they must first give written notice of
demand for payment via certified mail, then give the defendant 8 days
to reply. In addition to being in the court rules and instructions on
the filing affidavit, the affidavit also states "the plaintiff duly
sweats that written demand for payment was made".
I checked with the court clerk and there is no proof of service in the
file as required, nor did I ever receive any. The clerk said I "have
to take it up with the judge".
Would such errors on the plaintiff's part be sufficient to have the
case dismissed?
"Probably."
However, the dismissal would likely be 'without prejudice', meaning that
plaintiff could re-file _after_ jumping through the hoops properly.
OTOH, the point that the plaintiff (apparently) _deliberately_ attempted
to mislead the court, and -that- can be used to impune the veracity of
=anything= else the plaintiff tries to introduce.
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