Debt Collection by Litigation: Initiation of Suit and Service of Citation
INITIATION OF LAWSUIT
A lawsuit or civil action is initiated by the act of filing, which can be accomplished in person by attorney, through the mail, or – in many jurisdictions – now electronically over the internet.
Under both federal and Texas law, a credit card debt suit must be filed in the county in which the defendant resides. A suit in another county can be challenged by motion to transfer venue, and may make for a viable unfair debt collection claim against the filing attorney, and possibly against the Plaintiff also.
At the time of filing, a civil case information sheet must also be completed, but it is used for statistical purposes, and is not a document that has legal significance in the lawsuit itself. An error on the form, such as the erroneous classification of lawsuit (type of claim) has no effect on the substance of the petition and the causes of action pleaded therein. It will only affect the accuracy of the aggregate statistical information. The filing attorney must be identified on the civil filing form. Sometimes the name and bar number do not match the attorney whose signature appears on the pleading. The latter determines which attorney is considered attorney-in-charge under Rule 8. The attorney in charge for the plaintiff is the one to whom all responses and other papers are to be served by the Defendant or the Defendant's attorney.
In any event, the petition can subsequently be amended, and even additional parties may be added, possibly on different legal theories altogether.
CITATION AND PETITION
The defendant has no obligation to answer unless and until he or she (or it) is properly served with process. This is true even if the Defendant has been sent an advance copy of the lawsuit papers by the attorney representing the creditor, or becomes aware of the lawsuit in some other way. The mailing of a "complimentary" copy of the petition is not proper service under the Rules of Civil Procedure.
These days, it is easy to check if a lawsuit is pending, at least in major counties, if not in all courts. Documents in JP court are typically less accessible.
County courts and district courts in Harris, Fort Bend, Dallas, and many other counties, by contrast, make docket information available online. Some even permit online access to images of documents, although this may require user registration. Even if it is not possible to view petitions online, the consumer or defendant’s attorney can check whether a lawsuit has been filed by doing a name search on the Defendant on the court’s electronic docket system. A search can also be done by Plaintiff’s name, but this may yield a large number of search results because debt collection attorneys typically file dozens, if not hundreds of cases each year, at least in the more populous counties.
The official notice of the lawsuit for service purposes is the citation (called summons in federal court and in other states). It is a document that is separate from the plaintiff’s first pleading, which is generally titled Plaintiff’s Original Petition. The petition may include attachments and discovery requests, and if that is the case, the title of the Petition will typically to refer to such discovery requests.
Some debt collection attorneys even integrate discovery requests into the petition itself as separate numbered paragraphs. This is not proper practice because the civil rules state that discovery, with certain exceptions, should not be filed with the court. Some debt collection attorneys routinely ignore this rule.
Plaintiff’s attorneys more mindful of the Texas Rules of Civil Procedure serve discovery requests at the same time the lawsuit is served, but do so by serving the discovery requests as separate documents along with the citation and the petition. In that case, the citation should refer to the additional documents being served, otherwise there is no proof that the discovery documents were also served; nor is their proof of the date on which they were served. If the plaintiff’s attorney later wants to base a motion for summary judgment, or for default judgment, on deemed admissions, the record will not contain sufficient evidence that deemed admissions exist because the requests for admissions will not have a certificate of service on them stating that they were served on the defendant on such and such date, and will not contain any alternative proof of service, such as a certified return receipt (green card). Nor would there be a certificate of service relating to the discovery request.
The date of service controls the deadline for answering the lawsuit itself and the deadline for responding to discovery requests (if any are served together with the petition).
Discovery requests must be answered within 50 days from the date of service if served together with the citation, rather than 30 days when served later in the course of the lawsuit, after the Defendant has answered, or the appearance date has passed.
The time to answer the lawsuit itself varies. There is less time to answer the lawsuit than to answer requests for admission (even if served at the same time with the petition). There are different rules for justice courts and county and district courts. Small claims courts have been abolished (effective August 2013) and could not be used by debt collector even before the legislative amendment.
Additionally, the amount of time from the date of service to appearance day is affected by the day of the week the lawsuit was served, because the appearance day is always a Monday.
METHODS OF SERVICE
Service of lawsuit papers is governed by the civil rules of procedure and may be accomplished by delivery of citation and petition by a civil process server or law enforcement officer, by certified mail, and – in rare cases, and subject to special requirements – by publication in a newspaper and/or newspaper website.
Debt collection attorneys mostly use civil process servers, and – less commonly – constable or sheriff’s deputies.
If the defendant cannot be found, or does not pick up certified mail, a separate rule provides for alternative methods of service called “substituted” service. This typically involves the attachment of citation and petition on the entrance door or gate at a specified address, assuming no one answers a ring or knock on the door. Substituted service must be specifically authorized by the court in a written order that often also requires that a copy of citation and petition be mailed by certified mail, or by both certified and regular mail.
In order to use alternative service, the plaintiff must file a motion requesting an order for alternative service, and the motion must have an affidavit attached that details the efforts undertaken by the process server to serve the citation. The court may deny the motion if the court finds the information inadequate, or if it appears that the service attempts were at the wrong address.
When service is in person, the defendant need not sign anything. Some consumers may think they have not been served because the papers were merely handed to them, but that would be a misconception.
DEFECT IN SERVICE
Service of citation may have been ineffective if there is a question as to the identity of the person served, or the truthfulness of the process server (so-called "sewer service"). Process servers have to sign the “return” of citation under penalty of perjury and provide date (and time) of service.
If service is by certified/registered mail, the defendant must personally sign the green card, even if it is otherwise common practice for an agent to do so.
Even if there are indications that service was not in conformity with the rules that govern it, or good reason to believe that it was not legally effective, it normally makes little sense to fight over it as long as no default judgment has yet been rendered.
The vehicle to challenge a defect in service would be a motion to quash service, which would merely delay the deadline for answering. The filing of such a motion would constitute an appearance, and thereby actually accomplish the purpose of service at least in part, i.e. bring the person being sued before the court and preclude a no-answer default judgment. Though rarely an issue, a motion to quash service of citation based on some defect will also have the effect of waiving any complaint about the court’s lack of personal jurisdiction over the defendant. If personal jurisdiction is an issue, it may be necessary to file a special appearance to avoid waiving the issue.
Does delay in service affect the running of limitations?
Even if a debt claim is (or appears to be) close to becoming time-barred, this determination is based on the filing date of the lawsuit, not on the date of service or the appearance date, although the plaintiff must show diligence in attempting to procure service if the statute of limitations expires before the defendant is actually served. If the plaintiff fails to demonstrate diligence in getting the lawsuit served, the statute of limitations may provide an effective defense even if the applicable limitations period had not yet expired when the lawsuit was filed.
EFFECT OF FAILURE TO SERVE CITATION
The normal practice is for a debt plaintiff to file suit and request issuance of citation at the same time. But a lawsuit may also be filed without requesting issuance of citation, with the result that the lawsuit will merely sit on the docket. Although rare in debt case, sometimes there is a tactical advantage doing this for timing reasons. If a lawsuit is anticipated by the other side, filing first may confer certain advantages.
If the other party remains unaware of the filing, and files its own lawsuit against the plaintiff in the first suit, the two lawsuits will likely be consolidated (if both were filed in the same court system or even in the same court), or the second suit will be put on hold (abated) under the dominant jurisdiction doctrine even if there would not be any reason for the second court to lack jurisdiction otherwise.
The information on and in a filed lawsuit will be available as a public record, and may even get published in a local newspaper, on a community website or blog, or on a legal-oriented web site. A law suit in which no service was requested may linger on the docket for years, but may terminate earlier for a number of reasons. Among the possible scenarios: The defendant may become aware of the lawsuit and decide to file an answer. Even a handwritten letter by the defendant addressed to the judge may be enough to be deemed an answer, and thus constitute an appearance.
If nothing further happens, the lawsuit may be dismissed by the judge for want of prosecution, but that will depend on whether the court (or clerk serving multiple courts) has a system that tracks the aging of active lawsuits, and a policy to send notice of intent to dismiss for want of prosecution that sets a deadline for certain actions to be taken, and a warning of the court’s intent to dismiss the case if of the specified events occur. (-->DWOP)(-->Samples of DWOP notices; samples of DWOP orders). The court must first give notice to the plaintiff of its intent to dismiss a case for want of prosecution. Some court and/or counties do not have a system in place that monitors cases in which only a petition is on file and triggers a process of having them dismissed after giving the plaintiff a written notice and opportunity to take specified actions to prevent dismissal.
CONSEQUENCES OF FAILURE TO FILE AN ANSWER
If the Defendant has been served, but does not answer, the plaintiff may move for default judgment. In order to be entitled to default judgment, the plaintiff must satisfy certain requirements that go beyond proof that the defendant was served.
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