Filing an Answer to the Creditor's Original Petition in a debt collection lawsuit

Appearance by filing an answer & waiver of citation

What counts as an answer in a debt collection lawsuit and why it is important  

As a matter of due process, a plaintiff must see to it that the defendant is properly served with the lawsuit papers that tell the defendant what he or she is being for, unless the defendant waives service and appears voluntarily. Without proper service (or waiver thereof) the court does not acquire personal jurisdiction over the defendant and cannot enter a valid judgment. Any judgment rendered without jurisdiction is void.

A note on lawsuit lingo: state vs. federal courts in Texas  

In Texas state courts, the plaintiff's first pleading that is used to initiate the collection case against the defendant is called ORIGINAL PETITION rather than ORIGINAL COMPLAINT, and the document that directs the process server or peace officer (constable or sheriff) to serve it on the defendant is called a CITATION rather than a SUMMONS.

In federal court the term "civil action" is standard. In state courts, terms "Cause" (as in Cause Number) "civil case" and "suit" or "lawsuit" are more commonly used. Many courts use the abbreviation C or CV to distinguish civil from criminal cases (CR). CCL stands for Civil Court at Law and CCCL for County Civil Courts at Law in Harris County (because there are many county criminal courts of law also).

Note that in divorce cases, the terms Petitioner and Respondent are used instead of Plaintiff and Defendant. In dissolution-of-marriage cases, the petitioner is the spouse that files first, which may be the husband or the wife. Analogously, the same goes for disputes over child custody (SAPCR) that are not coupled with a divorce.

In debt collection litigation the Plaintiff is always the Creditor, which is why it is appropriate to use Plaintiff and Creditor interchangeably on this blog.

The only exception is when the consumer sues the creditor (or the creditor's attorney) for wrongdoing, such as violation of statutes prohibiting unfair debt collection practices (FDCPA, TDCA, DTPA). Most of those actions, however, are brought in federal court (or removed to federal court), except when such a cause of action is asserted as a counter-claim in a pending collection lawsuit. In that scenario, the defendant will also become a counter-plaintiff.

In a consumer debt collection suit the Defendant is always an individual, but on Amex cards and suits on business debt there will often be two defendants, one of them a business entity. In some of these cases, the individual is sued as a guarantor, rather than as a primary obligor.

Service of Citation by mail? 

A citation may also be served by certified mail, but may not be so served by the plaintiff's attorney directly. It will  have to be done through the clerk, the constable's office, or a private process server. Service by mail is rarely used in debt collection suits; except when it is order in combination with service by posting the lawsuit papers on the defendant's door pursuant to an order for substituted service under Texas Rule of Procedure 106 (Rule 106 Order).

The importance of the Defendant's answer 

Whether or not a lawsuit is answered in writing after the service of citation and original petition has important legal consequences: If the debtor was properly served (usually in person; or, if such service is unsuccessful, by attachment of a copy of the citation and petition pursuant to an order for substituted service at the address that the plaintiff has for the debtor), but does not file an answer, the debt collection attorney may move for a no-answer default judgment for the creditor. A motion for this type of default judgment does not require any proof of liability, and the amount of damages (and attorneys fees, if any are sought) may be established by affidavit. -- > Motion for default judgment;
-- > Affidavit in support of default judgment

But a no-answer default judgment cannot properly be entered against a defendant who has made an appearance in the lawsuit.

Filing an answer prevents default judgment (well, not literally, but at least it provides a valid ground for attacking a default judgment, if one is nevertheless entered). A defendant's ORIGINAL ANSWER may be filed in person or by mail (hard copy) if the defendant is not represented by an attorney, but a pro se defendant may also register to file and serve documents through the Texas eFile system at https://efile.txcourts.gov/ofsweb. This will require a credit or debit card to pay service fees and some court costs (if applicable). Attorney are required to efile. Pro se litigants are still allowed to file hard copies. 

Filing an answer counts as an "appearance" in the lawsuit. Making an appearance in person at a hearing or trial in the case may also be sufficient, but the safer thing to do is to file an answer with the court. Why? Because the Plaintiff is not required to let the defendant know of any hearing on a motion for default judgment; should there even be one; nor is the creditor required to send the debtor a copy of the motion for default judgment if the debtor was served, but did not file an answer. Many courts will accept motions for default judgment without the need for an in-court attorney appearance, and will sign them as a matter of course as long as the formal requirements are satisfied. Some courts have a checklist and flag deficiencies. Practices vary. Court staff may call the attorney or make a notation on the online docket sheet, or both. Some judges write denied on the motion without entering a separate order. Such a denial is not a big deal. The creditor's attorney can come back and try to do better. If the case gets dismissed because it has been pending for too long -- DWOPPED, in court jargon -- it can be reinstated upon motion. DWOP stands for dismissal for want of prosecution.

Notice to the defendant must only be given to a defendant who has answered (unless a particular court has a policy that requires it even though the Texas Rules of Civil Procedure do not). The creditor's attorney may still send a notice of hearing, but the judge may grant a default judgment regardless, provided the other requirements for a default judgment are met, which includes a non-military affidavit. -- > When can the court grant a default judgment?

What counts as an answer? 

For pro se defendants, i.e. those who do not have a lawyer to handle their defense, the criteria are quite low. A short letter to the judge may be sufficient as long as it properly identifies the case (by cause number) and includes name, address, and signature, and -- at the minimum -- the words "general denial" or something that indicates that the defendant is not rolling over and playing dead.

The Texas Supreme Court has said that a defendant who timely files a pro se answer by a signed letter that identifies the parties, the case, and the defendant's current address, has sufficiently appeared by answer and deserves notice of any subsequent proceedings in the case.

That said, a letter by a family member of the defendant will likely not be sufficient because a lay person may not represent another person in court. The same goes for appearances in person at trial. This may seem very unfair, especially when the family member has more education than the defendant, or just wants to be helpful, but neither the Supreme Court, nor the Texas Legislature, has seen fit to change the rule, at least not in county court and district courts (there is now an exception for JP court).

The rules would require the defendant's answer or letter to be sent to the attorney for the creditor also (at the address shown on the petition). If that was not done, the creditor may move for default judgment unawares that an answer is on file; but the fact that the defendant has answered should preclude default judgment even if the creditor's attorney did not know about it. It still happens, but when it happens there is good cause for the default judgment to be set aside.

The judge, trial coordinator, or the clerk of the particular court, will typically examine the file to check whether or not an answer is on file. Some counties even have a system in place that involves a default judgment check-list on which all items must be satisfied and are checked off before a motion for default judgment will go to the judge (or a judge sitting by assignment) for signing. But many courts that hear routine collection cases are very busy, and there will be oversights, slip-ups, and all sorts of errors.

Unnecessary admissions in the defendant's answer 

Some pro se defendants make the mistake of making admissions in their answer, elaborate on their dire financial circumstances, and plead for mercy. Trial court judges will generally ignore the sob stories, assuming they even read the defendant's letter. Why? Because the sob stories are not relevant, at least not at the default judgment stage. What counts at that point is whether a paper signed by the defendant is on file or not. The content is generally of marginal importance. But if the defendant makes admissions on elements on which the Plaintiff's has the burden of proof, the creditor's attorney may used the admissions later as a substitute for proof of its own. -- > Judicial admissions in pleadings.

The content of the debtor's responsive pleading -- the DEFENDANT'S ORIGINAL ANSWER -- will also acquire importance if the defendant hires an attorney, or wants to counter the plaintiff's claim with an affirmative defense, such as time-bar under the four-year statute of limitations for debt claims (6 years for some promissory notes). If they defendant has already filed a narrative answer, the attorney coming into the case will file something, most likely an AMENDED ORIGINAL ANSWER that replaces the first one (not literally, but in terms of what counts as "the live pleading"). Some consumer debt defense attorneys merely file a general denial answer with one or two affirmative defenses briefly stated (such as the "applicable statute of limitations"); other include a whole litany of them, and some set forth more specific arguments why the creditor should not prevail, supported with citations to case law.

If a defendant wises up in time and realizes he has helped the creditor with admission in a filing with the court, he can also amend the ORIGINAL ANSWER as long as the amendment deadline has not yet passed either under the rules or under a case-specific docket control order. The general deadline is seven days before trial, but that also applies to motions for summary judgment regardless of whether or  not a trial date is set for a later time. Once the deadline has passed, leave of court must be obtained to amend pleadings, and if a judgment has already been granted, it is too late to amend. In that Johnny-come-late scenario, the Defendant would have to file a post-judgment motion, such as a motion for new trial.

Creditor's burden to prove case and Defendant's affirmative defenses 

Plaintiffs, including Creditors, must prove their case. The burden is on them, but to defend the case based on other reasons or circumstances, such as the contention that the debt is stale and no longer actionable under that statute of limitations (generally four years, in Texas) must be properly raised by the Defendant. If not, they are waived.

Affirmative defenses must be pleaded. As with a the "general denial," a short reference to the name of the affirmative defense will generally be sufficient; e.g. Plaintiff's claim is time-barred; or Defendant pleads the following affirmative defenses: statute of limitations; lack of capacity to sue, mandatory arbitration clause, etc....

Some defenses, however, require a sworn denial. The circumstance in which the need for a verified denial arises are rare (at least in credit card debt suits) and are not discussed here. -- > Verified denials; matter that require a sworn denial. --> Sworn account suit under rule 185.

Effect of filing an answer 

Under Rule 121, an answer constitutes an appearance of the defendant so as to dispense with the necessity for the issuance or service of citation upon him.” Tex. R. Civ. P. 121. Thus, if the defendant files an answer after finding a note from a process server on the door knob or somewhere in the vicinity but the citation is never actually served in person, such service is no longer required to bring the defendant before the court. The process server still has a duty to try to serve it because that is her job, but it will not matter whether she is successful or not. The defendant will have no valid complaint about not actually having been served with the citation because that would no longer be necessary. This problem sometimes comes up when the defendant hires an attorney and then relies on the attorney to handle the lawsuit. The attorney may file an answer before the defendant is served in person, and may not be aware that the defendant is served with lawsuit papers that include requests for admissions, which then may go unanswered. --> Requests for admissions and the deemed admissions problem.

Even if a general denial can be filed without having seen the pleading, the defendant will still want to know what is alleged in the petition and how much money is being sought from them. Luckily, many courts provide online access to court records in addition to docket information. Some require registration for a free account (e.g., Harris County); others do not (e.g. Galveston County, Fort Bend County, Dallas County. In some court systems it is also possible to purchase certified or uncertified copies online; others require that a request be submitted to the clerk for processing.

Efiling involves a different system and serves a different purpose. The eFiling system provides on-line access to courts (through the clerks) for submitting documents and receiving them, rather than for looking up documents passively.

How specific does the answer have to be? 

In Texas state courts, unlike federal district courts, the defendant does not have to respond to the allegations in the plaintiff's pleading point by point (and many collection lawyers don't provide many details to begin with, although there are exceptions). A GENERAL DENIAL will put all of the Plaintiff's allegations in issue, and only certain matters need to be raised expressly, a topic that goes beyond a general introduction to collection lawsuits.  -- > affirmative defenses must be pleaded; -- > conditions precedent and specific denials.

Effect of a General Denial 

A general denial is just that: a general denial of what the plaintiff has alleged in its petition. It constitutes a summary denial of each factual allegation and theory of recovery asserted by the plaintiff, accomplished with no more than two "magic" words. The effect of asserting a "general denial" is to require the plaintiff to prove its claim.

Pleadings are generally not evidence. Therefore, the creditor cannot be granted a judgment on the pleadings alone.

There are two exceptions to the rule that pleadings are just pleadings, however: (1) No-answer default judgment after proper service on the defendant; and (2) a properly pleaded Sworn Account Suit under Rule 185 that has not been neutralized with a verified denial. Verified in this context means sworn to.

Judgment on the Pleadings only? 

As for the first exception, the Creditor's unanswered and therefore uncontested pleadings only provide a basis for the court to find the defendant liable as alleged. That is not enough for a money judgment in a specific lump-sum amount. Even when the defendant has not answered at all, the Creditor must still prove the amount of damages with some evidence, typically in the form of an affidavit with attachments. The fact that a specific dollar figure (or two figures, one for principal and one for accrued interest) was stated in the ORIGINAL PETITION is not enough. That said, may Creditors attach an affidavit and other documents to their original petition to meet the requirement to prove the amount of the alleged damages (which would otherwise be considered unliquidated) at the point of inception.
 
As for the second exception, it no longer comes up much in collection suits on bank debt. Generally, a sworn account suit can only be brought by a "creditor" who sold goods or provided services. The  latter category includes attorneys that sue their clients for unpaid legal fees. It does not include a financial institution that made a loan or extended credit otherwise. The use of the loan proceeds or of the credit card for purchases does not entitle the financial institution to sue on sworn account because the goods or services were provided by a third party (merchant), rather than directly by the bank or credit union.

Sworn Account suit not viable for credit card and other bank debt 
 
A credit card debt suit should not be brought as a sworn account suit under Rule 185 because sworn account is not a proper legal theory for collecting that type of debt through the court system. While such debt collection suits are rarely filed as a sworn accounts any more, it does not mean it will never happen. When it does happen, and when the defendant does not complaint about it, the court may conclude that the error has been waived, assuming the judge even becomes aware of it, which cannot be taken for granted, esp. in courts that are very busy. The same conclusion could possibly be reached on appeal, although it may be worth arguing otherwise if the appeal is from a default judgment, where the pleadings that form the basis for the entry of judgment are scrutinized more thoroughly.
--> Pleading sufficiency and Special Exceptions.

If a default judgment is granted and it is based on a sworn account only, there may are good grounds to attack it based on a defect in the pleadings.

Even a default judgment on an otherwise valid legal theory under Texas law (breach of contract, account stated) may be attacked in a timely regular appeal or in a restricted appeal if the creditor's pleadings was defective, or arguably insufficient to meet the fair notice standard. --> Appeals from Default Judgments, Post-judgment on Default Judgment vs. Restricted Appeal, Bill of Review.

RELATED TOPICS AND BLOG POSTS

• Service of lawsuit papers: Service in person by process server and substituted service
• What is a citation? 
• Sufficiency of the creditor's pleadings to support default judgment 
• No-answer default judgment vs. post-answer default judgment 
• Different ways of attacking a default judgment on a debt in Texas 
• Bill of review petition to challenge a default judgment that is no longer appealable

Last revised 12/8/2018 

Pro Se Defendants often court Defeat and Default Judgment, if not Disaster, by doing nothing or making things worse

COMMON ERRORS BY UNREPRESENTED LITIGANTS

Stasis & Default:  Not doing things that need to be done.

Debt suit defendants typically know little or nothing about the rules of procedure and thus suffer the adverse consequences for not hiring a lawyer (or not being able to afford one) to explain matter to them, or do what needs to be done on their behalf. As a result, debt collection attorney’s “win” a lot of cases simply because the case is not contested at all, or because the defendant makes a serious error that relieves the plaintiff from proving its case.   

Failure to file an answer

It does not take much to prevent a default judgment. All that is required is the filing of an answer, and the courts are very lenient when it comes to judging whether a piece of paper qualifies as an answer. Even a letter to the judge may do, although the rules that require a copy be sent to the opposing party’s attorney would still apply (and would likely be ignored).

Many defendants, however, do not only fail to hire a lawyer, but fail to take any action at all, thus inviting what in most cases is highly predictable, a default judgment. --> Default Judgment Signed, Now what? --> The challenges of appealing a judgment in collection suit without a lawyer. 

Failure to answer REQUESTS FOR ADMISSIONS

Same for requests for admissions. Doing nothing has grave consequences. Not answering them will result in deemed admissions by default. A defendant may not want to believe that they are due within 30 or 50 days as stated on the paperwork. That's understandable. After all, it's the attorney that’s suing them that says so; -- the same attorney that also may have stated that “all information obtained will be used for debt collection purposes” or something to that effect.  But the defendant’s distrust or wariness about providing information does not suspend the operation of the deemed admissions rule. It does not matter that the defendant took the FDCPA (mini-miranda) warning seriously and refused to provide the information that was requested. It's a trap for the unwary, and collection attorney deliberately set it because the want the defendants to fall into it.   

  

Unnecessary judicial admissions thanks to well-meant SOB-STORY NARRATIVES in pleadings 

Some unrepresented litigants may feel a need or urge to respond, and do so in writing. Some use it as an occasion to wail and vent. Bemoan their dire conditions and protest that they would have been paying if only they had the money. And that's understandable, but often meets with no sympathy. 

The harsh reality is that collection attorneys don't care. They have heard it all, and if it bothered them inflicting yet more misery on people already down on their luck, they wouldn't be doing it. Or not for long. Many judges don't care either. Debtors are just names and numbers. And dollar figures on judgments. To be processed. The more efficiently, the better. It will make the statistics look good. Attorneys have the upper hand because they are in court on a regular basis and interact with the staff. Not only are they lawyers, they know the ropes. How things are handled in a particular court.

Most defendants don’t know that under the Texas pleading rules they can answer with a general denial and then wait and see if the creditor files a motion for summary judgment or takes some other action. Instead they volunteer information that is superfluous under the pleading rules, and may amount to judicial admissions that can be used against them later. 

Luckily, the Texas Rules of Procedure are very liberal with respect to amendments. If a pro se litigant were to have filed an inappropriate answer but retains a lawyer before a dispositive motion is filed and heard, or the case goes to trial, the error can be fixed by filing an amended answer. Even if the deadline for amendment set by the seven-day rule or a docket control order has passed, a newly-retained attorney can file a motion for leave to amend the pleadings, which the court will probably grant. 

Debt Collection Suit: Filing and Service of Citation

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.