Discover got a court date against me...never served??

[nateweb]

I live in Maine and I got a letter from the District Court saying that I have a small claims court date with Discover in December. The weird thing is, I was NEVER served ANY papers for this. I owe them money from a 2-year-old card, but how can I have a court date w/out ever being served any papers? From the court's point of view, how am I supposed to prepare for a case that I have no info as to why I'm being sued in?

My question is, can I get the case dismissed because I was never served properly (at all?) What specific response do I have to file with the court--and what legal terms do I have to use (Motion for Dismissal?)? I'm having trouble finding info about being sued in small claims (although there's plenty of info about suing DCs). Thanks!

[Methuss]

Nope. Your knowledge of the case and the return date means you know you are being sued. The service of a summons is a formal means of communicating that fact. You're not going to get a dismissal if you show up on the return date and claim you were not served....the judge will serve you your butt on a plate.

Vacating a judgment based on lack of service of the summons is an equitable process for people who are unaware they had been sued and only became aware after a default has been entered against them. It doesn't prevent the plaintiff from refiling. All it does is give the defendant the right to be heard which had been previously denied due to lack of service. Generally you have to have a defense to vacate a default judgment, too. A judge will deny vacating a default judgment if you would have had no defense to the original complaint in the first place.

[nateweb]

So what you're saying is that there's no burden on the plaintiff or the court to provide the defendant with any information whatsoever as to why they're being sued, how much they're being sued for, and what evidence is being used against them? I find that extremely hard to believe...I'll just have to keep looking for answers. Thanks for replying anyway though.

[LUEser]

Methuss, I don't think the OP has a default judgment against him yet.

He says the court date is in December. He just doesn't have the summons and attached complaint (if there is one).

But, OP, you can easily get that if you go down to the court house and request the filings.

Then, you'll want to answer the complaint.

[swirlgirl]

So what you're saying is that there's no burden on the plaintiff or the court to provide the defendant with any information whatsoever as to why they're being sued, how much they're being sued for, and what evidence is being used against them? I find that extremely hard to believe...I'll just have to keep looking for answers. Thanks for replying anyway though.

You received the letter from the court. So, you are aware of the lawsuit as explained above. If you have other questions concerning the service, you can contact the court and request a copy of the file. It should show how you were served.

[nateweb]

Sorry everyone. I don't think I explained myself well. There is no judgment against me (yet). The letter from the court is the very first contact I've had about the suit.

I was under the impression that in order to have a court date, you must first be served by the plaintiff. Discover hasn't served me with anything. Isn't that their legal responsibility to do so? I haven't received a complaint, so I have no way to answer it. I don't even know how much they're suing me for. So theoretically, when I show up in court, I have no evidence and no defense.

So is it my responsibility to go and dig up what they were obligated to serve me? It seems like if it were reversed and I were taking them to small claims without properly serving, I would get laughed out of the court (if it even made it to court).

So I guess my concern is: How can they get a court date against me without ever serving me? I feel a little like Josef K.

[swirlgirl]

You'll have to check the service laws for your state and check the court file. Maybe they did a "sewer" service. Until you have the info from the file, you really don't know what happended.

But you are now aware of the trial and you need to plan on going to the court date regardless.

[nascar]

I was under the impression that in order to have a court date, you must first be served by the plaintiff.

Maine allows service by publication if the plaintiff shows due diligence in attempting service through other means. You weren't by any chance avoiding service, were you?

No matter. Here's the situation. If you don't go to court, a default judgment will likely be entered against you. There is a small chance that, if the record doesn't show service, the judge will continue it for service. That happens sometimes when the plaintiff schedules a hearing without service.

But, you need to show up. And like Methuss said, when you show up, claiming improper service might not help you. At best, you could get a continuance to put an answer together if you allege that you didn't have enough time. You have plenty of time between now and December to put a defense together.

It's probably best for you to go to the courthouse, get yourself a copy of the complaint and figure out how you're going to deal with it. Don't get hung up on the service thing - you'll only postpone the inevitable by doing so.

[Methuss]

Maine allows service by publication if the plaintiff shows due diligence in attempting service through other means.

And generally this means they only have to try serving you at your home once or twice and not find you there...then all they have to do is print the notice in the local newspaper's legal section of the classifieds and tell the court they tried to serve you at home but could not find you.