The Constitution guarantees certain rights, one of them being due process of law. And a large part of the process requires that each party to a lawsuit be given notice. The legal process is designed to be an open process were everyone is given an opportunity to be heard. To deny someone notice of a legal proceeding is to deny their right to due process guaranteed under the Constitution.
When a client complained about a judgment entered against her without her knowledge we checked the court record to see if she was correct. We hear this complaint all the time, and it usually means the client moved and the court summons was sent to a former address. This case was different. She owned her home and had lived there for years. Why didn’t she receive notice?
The court records indicated that a copy of the summons was left with the client’s daughter. The only problem was, the daughter was 10 years old and she tossed the lawsuit on top of a stack of her mother’s papers and forgot to tell her mom. Oops, the kid forgot to let mom know that she had just been sued. Kids are so forgetful!
You can guess the rest of the story. Since mom didn’t know she had been sued there was no written reply made to the lawsuit. After 30 days the creditor filed a motion for a Default Judgment and the next thing you know a Judgment Lien was slapped against mom’s home.
Can the Sheriff serve a summons on my kid when I’m not home?
It depends. Nebraska law indicates that the Sheriff may leave the summons with a person of suitable age and discretion who resides in the home. Is a 10 year old a person of suitable age and discretion? My guess is no. If the kid were 16 or 18 that would be a different story, but a 10 year old clearly lacks sufficient age and discretion to understand the consequence of being served with a summons.
Can a judgment based on faulty service be set aside?
Yes, the judgment may be set aside if the court approves a Motion to Vacate Judgment. In a recent Nebraska Supreme Court case of Capital One Bank vs. Lehmann the court indicated that a judgment based on lack of proper service may be set aside at any time. If a judgment was based on defective service or if service was never made because you moved to a different address, a motion to vacate the judgment should be filed.
What should I do if I receive a Summons?
In short, if you are sued a written answer must be filed with the Clerk of the Court within 30 days of receiving the summons. This article explains the process of filing a written response.
Image courtesy of Flickr and Jolante van Hemert.