How To Respond To A Writ Of Summons In Maryland?


How To Respond To A Writ Of Summons In Maryland
District Court – In District Court cases, you must respond in the following ways in order to have your day in Court:

File a Notice of Intention to Defend : You must file this within 15 days of receiving the summons. The Notice is on the bottom half of the summons. Once you have responded, the Court will send the plaintiff a copy of this notice. File a Counterclaim, Cross-claim, or a Third-Party Complaint, Generally, a counterclaim or cross-claim must be filed within 10 days of the deadline for filing the Notice of Intention to Defend. A third-party claim must be filed any time before 10 days before trial.

A counterclaim is when the defendant sues the plaintiff. A cross-claim can occur only when there is more than one plaintiff or more than one defendant in the suit. A cross-claim is filed by one party against a co-party on the same side of the original case (e.g. defendant 1 vs defendant 2). A third-party complaint occurs when a defendant files suit against yet another party because of the plaintiff’s original claim. In filing these types of claims, the defendant would follow the same procedures as the plaintiff originally when they filed their complaint.

You may decide to file a motion, in addition to the responses above. For example, You could do the following:

File a Motion to Transfer the Case to Circuit Court for a Trial by Jury. In District Court, the judge decides the case. Any party can always choose to have a District Court case heard by a jury in Circuit Court. The plaintiff may do this by filing a demand for a jury trial along with the complaint. A defendant may do this within 10 days of the deadline for filing the Notice of Intention to Defend. Jury trials can become very complicated and expensive, however, so it would be useful to evaluate your situation again before proceeding in this way. File a Motion to Dismiss, Maryland Rule 3-326 has special provisions for the dismissal of a case that is not filed in the correct county. Read the Rule: Md Rule 3-326 Claim that the plaintiff did not give proper notice. The defendant would do this through a pre-trial request or an argument at trial. If the request or argument is successful, the judge would postpone the trial, and the plaintiff would have to serve notice properly.

You could also choose to ignore the summons. However, if you fail to respond within 15 days of receiving the summons, you may lose the case automatically (called a default judgment), Read more about Default Orders & Judgments in Maryland, Finally, you may try to settle the case out of court.

If the plaintiff has an attorney, you must always contact their attorney and not the party. Otherwise, if both parties are self-representing their own cases, they may be able to work to settle the case themselves. Still, it is a good idea to use mediation services whenever possible to save time, effort, and money in getting a resolution to your case.

Read more about mediation,

What do you do when you receive a writ of summons?

After the Writ is served – The defendant may choose to settle or contest your claim after the Writ has been served on them. If the defendant wishes to settle the claim, they may contact you or your lawyer directly. Alternatively, you may be served an Offer to Settle by the defendant.

File and send a copy of a Memorandum of Appearance (MOA) to you within 8 days of service of the Writ (if the defendant is located in Singapore), or within 21 days of service of the Writ (if the defendant is located outside of Singapore).

The filing of an MOA is also known as entering an appearance.

File and serve a copy of their defence on you within 14 days of the time limited for an appearance.

If the defendant has a claim against you, the defendant may file and serve a copy of their defence and counterclaim instead.

How do you respond to be served?

Only you can decide if it is in your best interests to respond to the lawsuit or not. It can be very helpful to get advice from a lawyer to decide if, and how, to respond. If you do not respond If you do not file a response within 30 days after you were served, the plaintiff can file a form called “Request for Default,” which means you have defaulted and can no longer respond to the lawsuit to defend yourself.

  • If there is any part of the case you disagree with, or any amount of money you feel you do not owe, you will not be able to tell the court once you have defaulted.
  • After a default is entered the plaintiff can ask the court to enter a default judgment against you.
  • The plaintiff can prove his or her case without you disputing what he or she says, and can win up to the amount that he or she asked for in the lawsuit against you.

Then the plaintiff can enforce the judgment against you. This can mean getting money from you by garnishing your paycheck, levying on your bank account, or putting a lien on your house or car. A judgment against you can also show up on your credit report.

  • You have any defense to the case, like a belief you owe less money than what you are being sued for. The only way to raise this defense is by filing a formal response. For example, if you tried to arrange a payment schedule with the creditor but you were refused, and now you are being sued for attorney’s fees and court costs in addition to the principal amount you owe, the only way to tell the court that you should not have to pay the costs of the lawsuit is by filing a response and raising the defense in your response. If you do not file a response, the party suing you (the plaintiff) can get a judgment against you for the full amount requested in the lawsuit and you will not be able to tell the court why you do not owe it. So, unless you know you owe everything you are being sued for, and you have no other defense you want to raise, you should respond to the lawsuit because that is the only way for you to defend yourself and not have a default judgment against you.
  • Sometimes defendants file a response even when they owe the money because they want to try to negotiate a settlement with the plaintiff, and by filing a response, they get more time and opportunity to settle. This can work if you are prepared to respond to the discovery requests (on time and if are able to pay something to settle the case.
  • Sometimes defendants file a response if they think that the plaintiff cannot prove the case. The plaintiff has the initial burden to prove you owe the money. If the plaintiff cannot prove that there was a contract, or that you made certain charges, you may win the case because the plaintiff cannot prove what it alleges in its lawsuit. This may be true in cases where a loan was transferred from one bank to another, then to a collection agency, and the paperwork has been lost. If you are not able to get copies of the documents that support the plaintiff’s claim that you owe money, and you believe the plaintiff has no proof, filing a response will allow you to ask the court to get the plaintiff to show the proof.

You may choose NOT to respond when: You have no ability to pay and no defense to raise. In these cases, filing a response may result in you owing more money than the original debt. This happens because:

  • When you file a response, the plaintiff will generally serve you with “discovery” requests, which are legal tools to gather information and evidence to prepare for court. Discovery may involve a series of questions you have to answer, documents you must produce, or admissions you will be asked to make agreeing that you owe the money. If you do not answer the discovery requests on time, the court can order you to pay money to the plaintiff as a sanction (penalty). This is on top of the money you may be ordered to pay at the end of the case if you lose.
  • Also, fighting a case when you have no defense may result in a bigger judgment against you, because the other side’s court costs and lawyers’ fees may be added to the judgment against you.

As you can see, whether to respond or not is a very complicated decision to make. The only way to make sure you do what is best for you in your particular situation is to talk to a lawyer. Some legal aid agencies or bar associations may have lawyers that can help you negotiate with the credit card company or bank and avoid going to court.

  • Filing an answer You can file an answer to respond to the plaintiff’s complaint. An answer is a formal statement, in writing, of your defense to the lawsuit. You can say that what the plaintiff claims is not true. Or you can say it is true but give more information and reasons to defend your actions or explain the situation. The Code of Civil Procedure section 431.30(b) explains what you should put in your answer. There are some answer forms that you can use depending on the type of case you have. Click to find the court forms, If you cannot find a form that fits your case, you can create your own answer on pleading paper.
  • Filing a general denial The General Denial ( Form PLD-050 ) can be used in certain types of civil cases, but not in others. It is a form that generally denies what the plaintiff is claiming. You cannot use the General Denial in all civil cases, so make sure you read the instructions for the General Denial carefully to make sure you can use it in your case.
  • With an answer or a general denial, it is very important that you write down any affirmative defense you want to tell the court. These are defenses that you want the court to consider on your behalf. For example, if you were sued for breach of contract because you canceled a home improvement contract, but you canceled the contract because the contractor was doing poor quality work, if you want the court to consider your reason for canceling the contract, you need to raise it in your answer. If you fail to raise a defense in your answer or general denial, the court may prevent you from talking about it at the time of trial. The reason for this is to make sure both sides know about the claims and the defenses in advance of the trial so they can prepare.

2. You can file a motion In certain situations, you can respond to the lawsuit by filing a motion (a request) that usually tells the court that the plaintiff made a mistake in the lawsuit. Some of the more common motions are:

  • Demurrer You can file a demurrer to tell the court that the complaint filed by the plaintiff does not meet the legal requirements to tell you the reasons why you are being sued. Sometimes a demurrer is filed when the amount of time that the law gives the plaintiff to sue you on the claim (called the “statute of limitations” has run out. By filing a demurrer you are saying that even if the complaint is true, there is no valid legal reason for you to be responsible for what the plaintiff claims you owe, and therefore you should not have to answer the lawsuit. Note: Sometimes by filing a demurrer you may be admitting that what the plaintiff says is true.
  • Motion to strike This motion asks the court to take something out of the plaintiff’s complaint, because:
    • It is not understandable,
    • It is not legal,
    • It repeats itself, or
    • It does not matter (called “immaterial”).

    Give your reasons why the court should take it out of the complaint.

  • Motion to quash (cancel) service of summons This motion asks the court to say that the complaint was not served properly. Say why service was not right. Read the rules about service carefully so you can explain to the court why you were not served properly. If you win this motion, the plaintiff will probably have to serve you again and then you will have 30 more days to file a response. If you lose, the court will give you a few days to file your response.
  • Motion to stay A motion to stay asks the court to put the case on hold for a while, so that something else can happen. For example, if you are in the middle of a bankruptcy case, you can file a motion to stay so that the case stops until your bankruptcy case is finalized.

Talk to a lawyer! A lawyer can answer any questions you may have about what type of response would be best in your case. Each type of response has different legal implications that could even hurt your case in the future, so it is very important you understand all the consequences to what you choose to file.

Even if you cannot afford a lawyer to handle your whole case, you may be able to get a consultation for limited guidance on what your best strategy is. Click for help finding a lawyer, If you decide to file a response, you must file it in the same courthouse where the lawsuit was filed. The address should be on the papers you were served by the plaintiff.

Make sure you take your original plus at least 2 copies to the clerk’s office to file. You will have to pay a filing fee to file your papers. If you cannot afford the filing fees, you can ask the court for a fee waiver, If the court approves your fee waiver request, you will not have to pay the fees.

  • But if you win your lawsuit and collect costs from the other side, the court may ask you to pay back the waived fees.
  • Once you file your response to the plaintiff’s lawsuit, you must serve a copy on the plaintiff.
  • You can also serve a copy of your response BEFORE you file the original with the court.
  • Either way, make sure you file your response before the 30 days are up! To serve the plaintiff with a copy of your response, have someone 18 or older (not you and not involved in the case), mail a copy to the plaintiff.

If the plaintiff is represented by a lawyer, a copy of your response gets served on the lawyer. If the plaintiff is self-represented, it gets served on the plaintiff. The person who does this for you must fill out a proof of service by mail form. Then, make sure you file this proof of service form with the court and keep a copy for yourself.

If you filed a motion as your response, then follow the direction of the judge when he or she makes a decision on your motion.

If you filed an answer or general denial to the complaint, there are a number of steps before the trial. Read Before the Trial to find out what your next steps are.

If you have a claim against the plaintiff and you want the court to hear your claim, you have to file a cross-complaint against the plaintiff at the same time you file your answer. If you do not, you will waive your claim. This may also be true for claims against third parties if they are based on the same facts and circumstances as the lawsuit the plaintiff filed against you.

For example, in a car accident case, if you are sued for injuries you are alleged to have caused someone else, but you also suffered injuries and you believe those were the fault of the plaintiff or other third parties, in order for you to get the court to award you damages for your injuries, you would have to file a cross-complaint requesting damages.

If you are adding new parties to the lawsuit, you will also need to complete a summons for the cross-complaint and have the new parties served with the summons and cross-complaint. You do not need a summons if the only persons you are suing are the ones who are suing you.

  1. Prefiling: Starts when the reason for the lawsuit first happens, like failing to pay your credit card bill. There are a lot of things the plaintiff (the credit card company) must do to get ready before filing a lawsuit.
  2. Filing: Starts when the credit card company fills out and files the papers to start a court case.
  3. Response or default: Once the case is filed, you generally have 30 days to respond to the lawsuit. If you do not respond, you will be in default.
  4. Discovery: Discovery is the process that the parties use to share information and learn about the strengths and weaknesses of both sides of the case. The plaintiff must wait 10 days after serving you with the summons, or anytime once you file your answer to the complaint to formally request information from you with interrogatories. After you file your response, you can begin sending requests for information about the evidence that supports the plaintiff’s claim. Defendants who are being sued over an account can serve the plaintiff with a demand for a statement on account (also called a “bill of particulars”). The plaintiff has to respond to this demand within 10 days.
  5. Pretrial: If the parties cannot settle the case, pretrial starts about 90 days before the trial. This is when both sides get ready for the trial, get their witnesses and evidence lined up, and make important decisions about how to handle the case. During pretrial, they also have settlement conferences with the judge.
  6. Trial: A trial can last a few hours or many weeks. It depends on how complicated the case is. It can be a jury trial or a court trial, depending on the type of case and on what the parties choose. Most collection cases are heard by a judge without a jury and take a few hours. These are called “short cause matters” because they take less than a day. Because of crowded court calendars, even short cause matters may have to be continued (postponed) from the original trial date because no courtroom is available, so parties must be prepared to return to court, sometimes several times, before the trial actually begins.
  7. Posttrial: This means after the trial. This is when either side can appeal or collect the judgment.

How long does a defendant have to answer a complaint in Maryland?

Home Table of Contents West’s Annotated Code of Maryland Maryland Rules Title 2. Civil Procedure-Circuit Court Chapter 300. Pleadings and Motions MD Rules, Rule 2-321 RULE 2-321. TIME FOR FILING ANSWER (a) General Rule. A party shall file an answer to an original complaint, counterclaim, cross-claim, or third-party claim within 30 days after being served, except as provided by sections (b) and (c) of this Rule.

1) A defendant who is served with an original pleading outside of the State but within the United States shall file an answer within 60 days after being served. (2) A defendant who is served with an original pleading by publication or posting, pursuant to Rule 2-122, shall file an answer within the time specified in the notice.

(3) A person who is required by statute of this State to have a resident agent and who is served with an original pleading by service upon the State Department of Assessments and Taxation, the Insurance Commissioner, or some other agency of the State authorized by statute to receive process shall file an answer within 60 days after being served.

4) The United States or an officer or agency of the United States served with an original pleading pursuant to Rule 2-124(m) or (n) shall file an answer within 60 days after being served. (5) A defendant who is served with an original pleading outside of the United States shall file an answer within 90 days after being served.

(6) If rules for special proceedings, or statutes of this State or of the United States, provide for a different time to answer, the answer shall be filed as provided by those rules or statutes. (c) Automatic Extension. When a motion is filed pursuant to Rule 2-322 or when a matter is remanded from an appellate court or a federal court, the time for filing an answer is extended without special order to 15 days after entry of the court’s order on the motion or remand or, if the court grants a motion for a more definite statement, to 15 days after the service of the more definite statement.

Can you ignore writ of summons?

What Happens If I Doesn’t Respond to or Ignore a Writ of Summons? – If you do not respond to a writ of summons, the court will assume that you will not be fighting the claim against you. A default judgment can be filed against you after eight (8) days from the date of the writ of summons. You must comply with the default judgment.

Can I reject writ of summons?

Ignoring a writ – It is essential not to ignore a writ of summons. The plaintiff can obtain a default judgement against you. This means the court will give judgement in your absence without a hearing. The court will assess the amount of money that the defendant should pay and make an order.

How many days do you have to defend a summons?

2. How to go about defending yourself. – Of course, it is well within your legal rights to defend yourself in court. The court rules stipulate that you have 10 business days from the date you received the summons, to notify the Plaintiff that you plan to defend the case against you.

What happens if you don’t respond to serve?

If you Fail to Respond, They Could Have Trial Without You – If you fail to respond to the petition by filing an Answer within the 30 day period, you will waive your right to receive any future notices regarding the final trial in the matter, including the time and place of the trial, the entry of judgment, and any notification of the court’s decision.

  • See O.C.G.A.
  • §§ 9-11-5(a), 15-6-21(c) and 5-5-25,
  • This is a serious penalty, because failing to file an answer could lead to a judgment being entered in your case without your knowledge.
  • Additionally, once a judgment has been entered, it may be difficult or even impossible for you to reopen the case, or to have this judgment set aside after the fact.

Hill v. Hill, 234 Ga.836 (1975).

Do You Have To Say You Got Served?

Tanya’s take: – Sure, that would work. But, you know, nobody says “You’ve been served.” You’re supposed to inform them that these are legal papers, but we don’t say “You’ve been served.” People are going to say—or not say—whatever they want, especially if they don’t want to be served.

So a process server doesn’t have to get any verbal confirmation. For instance, if we see somebody through a window, and we make eye contact with them, that’s proper notification and I acknowledge that they see the papers, that’s proper notification. While servers want to get verbal confirmation of their names, most people won’t verify.

We would never serve papers if we waited until the person confirmed their full name.

What happens if a defendant does not respond?

The defendant doesn’t reply – The court can decide you’ve won because the defendant didn’t reply. Ask the court for ‘judgment by default’. You can ask for a judgment by default by:

requesting a judgment on Money Claim Online if you made your claim online filling in form N225 if you claimed a fixed (‘specified’) amount filling in form N227 if you claimed an ‘unspecified’ amount

If you used Money Claims, you can also use it to request a judgment by default if the defendant hasn’t replied and the deadline for their reply has passed.

What is the MD Rule 2 323?

(Md. Rule 2-323) MDEC counties only: If this submission contains Restricted Information (confidential by statute, rule or court order) you must file a Notice Regarding Restricted Information Pursuant to Rule 20-201.1 (form MDJ-008) with this submission, and check the Restricted Information box on this form.

How long do you have as defendants lawyer to respond to the complaint?

In addition to speaking with your attorney, here are 10 things to keep in mind after being served with a complaint: –

First things first. Do not ignore the complaint. In most jurisdictions, if you do not respond within 14-21 days of service, you forever waive your defenses and may have a judgment entered against you, even if the plaintiff is completely wrong about what happened. There are avenues to remove a default judgment, but it is not easy. Get in touch with your attorney right away – don’t put it off. Even if your attorney doesn’t typically take on litigation cases, he/she should be able to refer you to someone in his/her network that can assist you. Insurance. Consider what type(s) of insurance you have. Sometimes insurance policies cover lawsuits filed against you or your company. Beware that most insurance policies have strict deadlines for notifying the insurer and failure to notify the insurer may result in loss of coverage. When you initially get in touch with your attorney, make sure to let them know what kind of insurance you have. Your attorney should be able to assist with the insurance claim process. Who not to talk to. Except for your attorney, do not speak with anyone or anyone outside your company about the complaint and speak only to those within your company on a “need to know” basis. Speaking with others about the complaint could eventually be used against you by the plaintiff. In addition, do not speak to the plaintiff if they are represented by counsel. Once a party is represented by counsel, you should only speak to them through their attorney. However, make sure you are careful about what you say to the plaintiff’s attorney as they will use what you say against you given the opportunity. If possible, try to avoid speaking to the plaintiff’s attorney altogether and leave it to your attorney to get in touch with them. If you are inclined to call the plaintiff’s attorney yourself to talk about settling the case, make sure to mention at the beginning of the call that the call is in relation to settlement discussions and is confidential. Document Preservation. You have an obligation to preserve documents and information relevant to the issues asserted in the complaint. Do not destroy or throw away any documents that are in any way related to the facts alleged in the complaint and contact your IT department to turn off auto-delete protocols on relevant employees’ email. Failure to do so can result in court sanctions ranging from monetary sanctions to a judgment against you and/or your company. Motion to Dismiss. Some complaints are defective and a motion to dismiss may be an appropriate response. There are a lot of reasons why a complaint could be dismissed, which you attorney should be able to argue for you. When a complaint is dismissed, the lawsuit is over. If you answer or otherwise respond to the complaint (for example, by sending a letter to the court) before discussing with your attorney the possibility of filing a motion to dismiss, you may lose your ability to file one later on. Your attorney can help you determine whether to file a motion to dismiss or to file an answer to the complaint. Answering the Complaint. If you do not move to dismiss the complaint, you must answer the complaint. Consult with your attorney to help draft the answer and defenses. The paragraphs of the complaint are numbered consecutively. Your answer must respond to each numbered paragraph by either admitting or denying each alleged fact or stating that you lack information to respond to the alleged fact. Your answer must also assert all the defenses that you have. Counterclaims. If you believe the plaintiff has wronged you, answering the complaint gives you the option of also asserting counterclaims against the plaintiff. A counterclaim is similar to the defendant’s complaint against the plaintiff and is alleged directly after the answer in one cohesive document. A counterclaim can be asserted if it arises out of the same facts or transaction underlying the plaintiff’s complaint. If you don’t assert your counterclaims against the plaintiff in the answer, then you risk forever losing your right to assert them. Make sure to talk to your attorney about any and all counterclaims that you could possibly assert against the plaintiff. Third Parties. In addition to having the ability to serve a counterclaim against the plaintiff, you should also consider whether you can serve a third-party complaint. A third-party complaint is a way of saying “maybe what the plaintiff says in the complaint is true, but it’s not my fault – it’s his!” For example, if a homeowner sues a general contractor for a leak in the roof, but the roof was completed by a roofing company and not the general contractor, then the general contract could serve a third-party complaint against the roofing company. Your attorney should be able to help you determine if any third parties may be liable to you and will guide you on how to bring them into the lawsuit. In addition, if your insurance carrier is providing coverage for the lawsuit, they may require that certain third parties be brought into the lawsuit via a third-party complaint. Settlement. Make sure to discuss the possibility of settlement with your attorney and whether that is a viable option for you and/or your company at the onset of the case. Settlement may not be right for everyone at the start of a case, but it could resolve the issues quickly and save you time and money in the long run. Your attorney should be able to assist you in drafting not only the terms of the settlement agreement, but also any releases that may be warranted. A release is a part of a settlement that essentially prohibits the plaintiff from ever bringing a suit against you or your company again based on the facts alleged in the complaint. Releases are a great way to protect you and your company and one way to make sure this plaintiff goes away for good (a least based on the transaction or set of facts alleged in the complaint). Stay in touch. Although being served with a lawsuit can be stressful, know that your attorney is there to help you. If you have questions, you should reach out to your attorney and ask. There are a lot of components to a litigation and you and/or your company need to be involved in the process. Your attorney should be taking care of the “legal” side of things, but you and your employees are the ones that know the facts. Set aside time to tell your side of the story to your attorney so he/she can be prepared when answering the complaint or having settlement discussions. It will be time and money well spent in the long run.

For more information regarding what to do after being served with a complaint, please contact, : So You’ve Been Served with a Complaint, What Now? – Morse

How do you respond to a writ?

Responding to a Summons – A summons usually requires you to respond in one of two ways. The first is a physical appearance in court, which is more common in criminal cases. Civil case summons may require you to file an answer by a certain date. Regarding the latter, your answer is your response to the alleged complaint.

In writing, you tell the court whether you agree or disagree with the charges filed against you. Alternatively, you may state you have no knowledge of the events detailed in the charge. Replying to a summons in writing requires you to sign and date your reply. You should keep a copy for yourself before mailing the original to the plaintiff (or the plaintiff’s attorney) stated in the summons.

You must also file your answer with the court. This means you should take a copy of your reply to the clerk at the court named in your summons. The clerk should date it to provide proof that you filed your response in a timely manner. Make sure you bring a Certificate of Service to the court on the same day you file your answer.

What happens after a writ of execution is served?

Sale In Execution Seizing property in lieu of a debt Sale in Execution Reproduced with permission from Readers Digest Once judgment has been obtained against a debtor, the creditor (who then becomes known as the ‘judgment creditor’) can immediately apply for a writ of execution against the debtor’s property in order to cover the amount of the debt.

  • In the Supreme Court, the writ is issued by the registrar (see registrar of the supreme court) to authorise the sheriff to seize enough of the debtor’s property to raise the amount of the judgment and costs at a public auction;
  • In a magistrate’s court, the writ is issued by the clerk of the court and executed by the sheriff.

The writ must be obtained within three years from the date on which judgment is pronounced. If not, it becomes superannuated – that is, it is no longer in force. A writ can be issued after this period only:

  • With the consent of the debtor; or
  • If the judgment is revived by the court, in which case no new evidence is required because the case has already been proved.

Time to pay Although not obliged to do so, the creditor might allow the debtor ‘a reasonable time’ to pay the debts according to the judgment. However, if the question of non-payment was serious enough to have been taken to the courts, the judgment debtor would be most unlikely to be able to raise the money.

It may be possible, though, for the debtor to make arrangements with the judgment creditor’s attorney for the payment by instalments of debt and costs. In such a case, a writ of execution – a form of order of the court – is not usually issued. Attachment Once the writ has been issued, its terms must be carried out immediately or as soon as possible.

The sheriff of the relevant court, in the absence of specific instructions from the judgment creditor, goes to the home, place of employment or place of business of the debtor. After providing proof of identity, the sheriff will ask the debtor to meet the terms of the writ.

If unable to do so, the debtor will be obliged to point out any moveable property that can be sold to meet the judgment debt and costs. If the debtor fails to point out such property, the sheriff may conduct a search for it, make an inventory of it and take it into custody. Fixed property is attached by notice served on the debtor personally or by registered letter.

Other officials concerned with the property, such as the Registrar of Deeds, are also advised of the attachment, as are occupiers other than the owner, who is the debtor. What may be attached The judgment creditor, who has the basic right to claim that anything of value should be attached, need not accept what the debtor decides to offer.

However, an unnecessarily extensive attachment must be avoided; only enough of the debtor’s goods should be attached to cover the debt and judgment costs. If, after the sale, there is an excess amount after debt and costs have been paid, the debtor is entitled to this money. Moveable property that is attached must be the property of the judgment debtor.

If the debtor is a married man, and he and his wife are married out of community of property, his wife’s property cannot be attached, nor may the creditor garnishee money due to the wife. (See garnishee order.) Debts owed to the debtor by a third party or wages and salary owing, or which may become owing, may be attached by a garnishee order.

Cash other than wages may be attached without a garnishee order, as may bills of exchange, promissory notes or other securities for payment. Incorpo-real property or rights – that is, rights involving something that has no material existence – may also be attached. These include copyright, rights in terms of a will, rights to trust moneys, book debts, a trading licence and rights to land not yet transferred to the debtor.

Return of the creditor’s property If, as a creditor with a judgment in your favour, you call for the return of your own goods, such as a television set sold on instalment sale, these goods may be attached even if they are no longer with the debtor, but in the possession of a third party.

  • Fixed property Fixed property may be attached and sold, especially where bondholders are unable to meet monthly payments to the financial institution that granted the bond over the property.
  • Property that is not attached
  • In terms of the Magistrates’ Courts Act, 1944, certain items that are the property of the judgment debtor may not be attached.
  • These are:
  • Necessary beds, bedding and clothing of the debtor and his or her family;
  • Other furniture and household utensils to the value of R2000;
  • A farmer’s stock, tools and agricultural implements to the value of R2000;
  • Tools and implements of trade to the value of R2000;
  • Professional books, documents or instruments to the value of R2000 that are used by the debtor in the practice of his or her profession;
  • Arms and ammunition that the debtor, by law or regulation, is required to have;
  • Food and drink in the house to meet the needs of the debtor and his or her family for one month.
  1. These sums may be increased at the discretion of the court.
  2. Incorporeal property that may not be attached includes pension payments, the right to receive a pension and contributions made to a pension fund.
  3. The sale

Sales in execution are usually held at the sheriff’s store when moveables are being sold and in front of the courthouse in which the writ of execution was issued or at the property itself when immoveables are being sold. The conditions of sale are read out immediately before the start of the sale and may be examined beforehand at the office of the sheriff.

  • The official conducting the auction is not obliged to set minimum reserve prices, except where there is a bond over immoveable property – but even then the bondholder may waive the requirement for a reserve price.
  • At the end of the sale, the costs and charges of execution are deducted from the proceeds, after which whatever remains of the proceeds are distributed according to the order set out in the Rules of Court.

Any remainder is then paid to the judgment debtor. (See insolvency.) : Sale In Execution

What happens when court issues summons?

Summons in a Civil Case: What is it and What Are the Time Limits Introduction: To commence a civil action, the plaintiff (the complaining party) must file a Complaint or Petition with the appropriate civil court and have the court issue a summons for the other party (defendant) to appear and contest the claim or face having a default taken against the defendant.

  1. The summons is a form created by the court which notifies the party that an action has been filed against him, her or it, notifies him, her or it of the need to appear, and is attached to the Complaint or Petition that is personally served upon the defendant at the beginning of the case.
  2. It is required to serve upon the defendant not only the Complaint but the summons since it is the summons which invokes the power of the court to require an appearance by the defendant.

The defendant is “summoned” to appear or face default. In California the summons is a required form published by each court and the party using it simply fills in the relevant case information, files it with the court along with the Complaint, and once filed and the summons is issued by the court, the summons is served upon the opposing party by the process server.

Only then is the defendant required to appear within the time limit specified in the summons. The summons is the “voice of the court,” while the Complaint is the pleading of the party. The Power of the Summons: The typical summons issued in California can be found online but its vital terms are as follows: Notice! You have been sued.

The court may decide against you without your being heard unless you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff.

  1. A letter or phone call will not protect you.
  2. Your written response must be in the proper legal form if you want the court to hear your caseIf you do not file your response on time, you may lose the case by default and your wages, money and property may be taken without further warning from the court.

There are other legal requirements. You may want to call an attorney right away Note that different types of civil actions, such as unlawful detainers, applications for injunctions, etc., may have very different dates to respond. (The “return date” of a summons is the date to respond or face default.) Different courts have different forms and different time limits.

  • And note that by having the summons issued, a party suddenly can invoke the full power of the civil courts to obtain relief.
  • One cannot ignore a summons or refuse to comply without risking default and threats to property.
  • And once default is entered, a party cannot simply choose to appear: one must file a motion to remove the default and explain to the court while an appearance was not made before the time period expired.

The court has discretion to refuse to remove the default and after six months, even the court’s right to remove a default is extremely limited. Defaults can be reduced to a judgment and with a judgment a party can seize property owned by the defendant, attach wages, obtain an eviction, etc.

Etc. One may feel one has a dispute with a business person or a family member-but once the summons is issued it is the full power of the law and the courts that is brought to bear in the dispute and it is absolutely vital to treat it seriously, file a response within the time limitsor face the consequences.

SERVING THE SUMMONS: Usually, a summons must be handed to the defendant by a person over the age of eighteen. There are professional process servers who will serve the summons or one can select anyone over eighteen who is not a party and will file proof of such service with the court.

In certain circumstances, it may be served in other ways, but that is normally only allowed if personal service can not be achieved. The process server must not be a party to the lawsuit. Serving a summons on a defendant in another jurisdiction or out of the country also can require special court procedures and one can expect the defendant to contest the validity of the jurisdiction of the court once served, perhaps in a motion to quash the summons.

The issue of what is good service is a complex one and has resulted in thousands of pages of case law and statutes. Good experienced legal advice is vital if one has any question as to how to achieve proper service of summons. Note that if the service is not valid or the summons not properly prepared, a motion may be brought to void the entire judgment, and this may occur long after the time period for vacating the default that was entered.

  1. Note also that every jurisdiction has its own rules as to service of complaint and summons, appropriate service and motions to vacate and the local law should be carefully reviewedand updated since the law can be altered over the years.
  2. DON’T MAKE THE COURT YOUR ADVERSARY: A wise old attorney once told the writer that a unique and wonderful part of the American legal system was the ability of any person, including corporations and non-citizens, to bring the power of the legal system into disputes and seek justice by use of the courts.

As he put it, “With the stroke of a pen I am no longer a person complaining about anothernow I am a legal party seeking the overarching power of the law and our courts to hear my complaint and render my relief.” Some people greatly resent being forced to spend the energy, time and expense of having to defend themselves.

  • At times a party will simply seek to ignore the summons in exasperation and figuratively or literally throw the summons and complaint on the floor, rage about the fact that they do not want to spend thousands to hire an attorney and will ignore the papers served.
  • What is vital to understand is that every person has the same ability to call in the power of the courts and that is a cherished right in this country.

To refuse to comply with the rules of the Court simply means you will lose the case and the court will allow your opponents to prevail and seize your property. You are not making a point by ignoring the summons and complaint-you are surrendering and doing it in a way that makes prevailing much easier for your opponents.

Even if you feel that service was not properly achieved or that the court has no jurisdiction upon you since you live in another state or country, it is imperative that you appear and so advise the court and do so within the time limits in the summons. Or, as that same wise old attorney wrote me in a letter, “I can’t understand why people blame the court for becoming involved in their lives.

That’s what courts dothey involve themselves in disputes when any one of the disputants so elects. And even crazier, some people blame the courts and start to fight them, angry and resentful. That’s like being attacked by a poodle and responding by picking a fight with two rottweilers and four pit bullsfight the poodle, not the pit bulls.” : Summons in a Civil Case: What is it and What Are the Time Limits