What Can I Do if I Am Being Sued but I Wasn't Notified of the Suit?

What Can I Do if I Am Being Sued but I Wasn't Notified of the Suit?
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Last updated: January 2007

I've been told I'm being sued but wasn't notified to go to court, what do I do?

You must be given notice that you are being sued. This notice must give you the date of your first required court appearance. If someone tells you that they are suing you, but you have not received proper notice from them, you may be able to have the lawsuit dismissed because the person suing you did not give you proper notice.

In order to be given proper notice, the person suing you must give you a "summons." The process of bringing you into court with a summons is called "Service of Process."

What is service of process?

Service of process is the formal name for someone giving you a summons to come to court. A summons is the official notice that someone is suing you and that you must go to court.

The person who is filing a lawsuit against you starts by filing a complaint or petition for relief. A complaint or petition for relief is a document that says that you have done something wrong to the person filing the suit against you. A complaint or petition for relief asks the court to make you do something, such as move out of your apartment, pay money you owe on a bill, get a divorce, or some other outcome the suing party wants from you.

After the person files a complaint or petition for relief, they fill out a summons. The person filing a suit against you has the summons served on you. If a summons is properly served on you, you must go to court. If you fail to go to court, the person filing a suit against you can automatically win the suit.

What are Proper Methods of Service?

A party to a lawsuit must receive notice of the lawsuit by receiving a copy of the complaint and summons.  This is called "Service of Process." Service is proper if a summons is served:

  • By the sheriff of your county
  • By licensed process server
  • By certified mail. 

A licensed process server is someone who has a license from the state which gives them the power to serve people with summonses.  A sheriff or licensed process server can properly serve you in the following ways:

  • By giving the summons and complaint or petition for relief to the other party personally at their home or at another location; or
  • By giving it to someone who lives with the other party who is at least 13 years old.

What Can I Do if the summons was not served to me properly?

If you are not served properly, you can file a "Motion to Quash Service of Process." In this motion you will tell the court that you were not served properly. This motion needs to be filed with the court before you take any other action to fight the case. If you file another motion or pleading before you file this motion, you will not be allowed to fight the improper service.

Sometimes motions are combined to argue more than one thing in a motion. For example, you may combine a motion to quash service of process and a motion to dismiss the case. However, if you choose to combine your motion to quash service of process with any other motion, it must be in the same motion and it must be submitted before any other motions are submitted in the case.

What Should the Motion Say?

The motion must tell the judge three things:

  • that you were never served with a summons;
  • that no one who lives with you and who is 13 or older was served with your summons; and
  • that you never appeared in the lawsuit.

You will need to have this motion notarized. You should also add details about why the service was improper to help convince the judge. For example, if the sheriff says that he/she served you with the summons at 1276 Main Street but you live at 2276 Main Street, you should explain that in the motion and attach your utility bill from 2276 Main Street to support what you say. Or if the sheriff says he/she served a “22 year old” and you are 60 years old, you should point that out in your motion. 

Find out from the clerk of the court how to file the motion and how to set it up for the court call. When it is on the court call, the judge will hold a hearing to decide if he/she will grant your motion. Also, send a copy of the motion and a notice to the other side of the case, telling them when the motion will be presented to the court.

What happens at the hearing?

You must tell the judge that you are trying to quash the service for lack of jurisdiction. Explain to the judge what you wrote in your motion, and tell the judge why the service was improper. If you have proof, like a utility bill or a witness, tell the judge about your proof.

If the judge grants your motion, the person trying to sue you will have to start the process over again. But, they can make you come back to court if they serve you properly.

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