I have been served. What shall I do?
August 8, 2009
If you have been served with legal process by a constable, sheriff, or other person in Massachusetts most importantly do not ignore it. The papers you were served with should clearly indicate what you are expected to do. Even if you do not agree with what the papers say or how they were delivered some action is required.
First, let’s clarify a common myth. With few, if any, exceptions legal papers do not need to be served in hand. They may be left at your last and usual place of abode or if you are a company then to an officer or a person in charge at your principal place of business. They also do not always need to be mailed as well. Service is governed by statutes and the applicable rules for the court the proceeding is in. If you disagree with how the papers were served you should not ignore them as if the court finds that you had notice and failed to act there can be negative consequences. Below I will summarize some of the common types of items that may be served.
When a civil lawsuit is initiated against you will be served with a summons along with a copy of the complaint and maybe some other papers as well. The do what you need to do. Specifically, that you need to file and serve an answer, along with any counterclaims you may have, within 20 days of service. If you fail to do so you will likely be defaulted in judgment entered against you. You do not want to ignore it summons for any reason as you may be giving up any chance to dispute the complaint against you.
Another type of summons that is commonly served will be related to a supplementary process action. This summons will require that you appear at the court house on a specific date and time in order to be examined as to your financial status. A supplementary process action is commenced after a judgment entered against you by a judgment creditor in order to review your financial situation and if possible seek an order that you make payments towards the judgment. Again, you do not want to ignore this summons because if you fail to appear at court capias may issue.
A capias is a civil arrest warrant that can be served by a constable or deputy sheriff. Often when a capias is served the Constable or sheriff will make arrangements for you to surrender to them at the court house, they are authorized to physically compel your presence if necessary. If there is a capias issued against you, you should go to the court and speak to be clerk about filing a motion to remove your default and recall the capias.
Another common type of document served a subpoena. A subpoena will require the recipient to present themselves or documents for questioning or inspection at a specific date and time. You may be subpoenaed to appear at a deposition (out-of-court) or trial to give testimony. If you ignore a subpoena there will likely be negative consequences. If you feel that you should not be compelled to testify or produce documents you can challenge the subpoena in court or ask the court for a protective order. This must be done before the date you are required to appear and is done by a motion to the court. You should speak to an attorney to discuss your options and how to proceed.
Rarely served by a Constable or sheriff is a notice of small claim. This document will often be sent by first-class mail. This document will be sent to inform you that a small claim action has been commenced against you and you need to appear a certain date and time at court to defend against it. If you do not appear at court and judgment will be taken out against you and you will receive a second notice that judgment entered in that you need to appear for a payment review hearing. It again you do not appear, then he capias as discussed above will issue.
This is not an all inclusive list of possible items that can be served. Whenever you have been served with what looks to be legal process you should consult with a lawyer about what your obligations are and how having a lawyer may be of assistance.