Saturday, December 7, 2013

What is a citation? (civil lawsuit context)


"GREETINGS" of the unwelcome kind: Being served with a lawsuit papers: Citation and Petition 

The Meaning of the word Citation in the debt-collection context 

The word CITATION has other meanings, too, but in the debt collection context, the citation is the document that gives formal notice to the defendant that he or she has been sued. In federal court, and in other states, it is called summons, but debt suits are not filed in federal court.

TERMINOLOGY: TEXAS VS. OTHER FEDERAL COURT AND OTHER STATES

In Texas the word summons is used to, but most commonly for a call to jury duty. The papers served with the citation are also denominated differently. In Texas state courts they are called PETITION, and ORIGINAL PETITION, which in federal courts (including federal courts in Texas) they opening salvo in a civil action takes the form a COMPLAINT, served with SUMMONS, or a request to waive issuance and service of summons.

THE CITATION IN A CIVIL CASE IN TEXAS 

The citation is a document separate from the pleading itself, and is prepared and issued by the clerk of the court, not by the attorney for the plaintiff. It will tell the Defendant about the deadline to answer the lawsuit and contain a warning about the prospect of a default judgment if the Defendant fails to answer. The plaintiff's petition will be attached. It will normally be titled "Plaintiff's Original Petition", or some variant thereof. Additionally, discovery requests may also be attached, or even included withing the body of the petition. -- > Embedded discovery requests. If discovery in served with the petition, the titled of the petition will typically refers to it, e.g.: Plaintiff's Original Petition and Requests for Admissions.

There are very specific requirements regarding the contents of the citation, the manner of service upon the defendant, and the certification by the process server or officer that such was done. The latter is called the "return of service". If the defendant could not found, the citation will be returned also, with information on the unsucessful service attempts. The fact that service of process was not successful may be noted on the docket with the strange but descriptive word "NONSERVICE" or "UNSERVICE" or "NONEXECUTION".

The plaintiff may then request reissuance of citation (alias citation) to try again, perhaps at a new address if the original one was incorrect or a work address. An order for substituted service under Rule 106(b) may also be requested.

ALTERNATIVES TO SERVICE OF CITATION IN PERSON

Under Rule 106(b), the service is often made by attaching the lawsuit papers to the front door or gate with contemporaneous mailing by certified and regular mail to the same address. When this method is used, the defendant does not have to be encountered in person and the process server or law enforcement officer will not be in a position to testify about having handed the papers to the defendant. But, if the instructions on the order for Rule 106 service were meticulously followed, that does not matter. -- > Sufficiency of substituted service by alternative methods

THE HARSH CONSEQUENCES OF NOT ANSWERING

If the defendant was served, but does not answer as instructed by the citation, the plaintiff may move for a no-answer default judgment. The effect of a default judgment is no different from that of a regular judgment, but it may be easier to challenge for irregularities in the manner it was obtained. There are likely to be more errors because the lawsuit was not subjected to the adversarial process in which errors could have been complained of, and corrected. Courts and clerks are supposed to make sure that all requirements are met, some even have default judgment check-list, but nothing is guaranteed. -- > Requirements for default judgment; -- > Challenging a default judgment based on belated notice.

ATTACKING A DEFAULT JUDGMENT ON GROUNDS OF DEFECTIVE SERVICE OR NONSERVICE 

Compliance with rules of service and the relevant surrounding facts regarding service typically become issues when the defendant eventually hires a lawyer and challenges a default judgment. The method to do so is by bill-of-review petition. If rendered recently, other means to attack the default judgment may also be available. -- > Post-judgment motion; -- > Motion to set aside default judgment; -- > Appeal from final judgment; -- > Restricted appeal.

In an appeal, it may even be possible to argue that the petition was defective and does not support the default judgment; rather than the service of citation. -- > Insufficient pleadings and default judgment.

Defendants are supposed to be given notice of a default judgment promptly after it is signed (to Defendant's last known address), but if the address for service under Rule 106 was bad in the first instance, the notice of judgment will likely have gone to a bad address too. Such notice is not even required to be sent by certified mail, and it does not include an actual copy of the judgment. -- > Sample notice of judgment.

SAMPLE DOCUMENTS 

Return of Citation (2014) - Proof of Service by Declaration under penalties of perjury
by Civil Process Server in lieu of affidavit or sworn & notarized return 


RELATED TOPICS AND BLOG POSTS 

Initiation of lawsuit by Original Petition, followed by service of process on the defendant
Service of lawsuit papers in person, by certified mail, and by alternative methods
What to do about a default judgment
Insufficient pleadings as a basis to challenge a default judgment
No-answer default judgment vs. post-answer default judgment






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