McKIMMEY LAW OFFICE, P.C.
Twenty E. Ninth Street - The Aldridge - Suite 137 - Shawnee, Oklahoma 74801 - 405-275-3564
WHAT DO I DO IF I GET SUED?
GENERAL PRACTICE -
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McKIMMEY LAW OFFICE is one of the leading small law firms in the Shawnee, Oklahoma area, with a Statewide practice in all State and Federal Courts.
McKIMMEY LAW OFFICE is a general practice law firm. Our expertise includes Probate, Wills, Trusts, Real Estate, and Governmental Tort Claims, including Civil Rights litigation involving the Fourth and Fourteenth Amendments.
"An Affordable Attorney at Law"
Admitted to Practice - Oklahoma - 1974
United States Supreme Court - Tenth Circuit Court of Appeals
All United States District Courts of Oklahoma
- CAVEAT - The Answers and Opinions expressed on this page are general in nature, and the Answers and Opinions that our office would most likely give you.
Laws in different states may vary. Since we practice in Oklahoma the views in this segment reflect Oklahoma Law, and the law applicable in your state may be different.
You should also be aware that many of the Answers and Opinions expressed on this page represent our opinion and do not necessarily reflect the views of the entire legal community!
You should not consider these Answers and Opinions as legal advice applicable to your particular case and circumstances.
In planning your affairs you should consult directly with an attorney of your choosing, acquainting him / her with all of the facts and circumstances which apply to you.
In planning your affairs you should always get a second opinion.
Many legal advertisements and promotions by attorneys seem to be directed at people who have a claim against someone; who might want to sue someone!
However, it is sometimes easy to forget that for everyone suing somebody - somebody is getting sued - For every Sue-er there is a Sue-ee!
In this very litigious society it just might be your turn to be on the receiving end of a lawsuit!
Many times someone will come into the office with a complaint that they have had their wages or bank account garnished or that they have been Ordered to appear in Court to Answer as to their Assets.
Their first question is What does this mean? - What do I do?
Our First Question is When did you get sued? - When did the Plaintiff get judgment?
Many times their Answer will be I don't know! - I may have gotten some papers in the mail, but that's all I got?
Our next question is generally - What did you do after you got those papers?
Many times the Answer will be Nothing? - I didn't owe the money, so I didn't do anything!
If the lawsuit has proceeded to the point of your wages or bank account being garnished - or you have been ordered to appear in Court to Answer as to your assets, there is very little an attorney can do for you, except negotiate some sort of settlement.
The Anatomy of a Lawsuit
All lawsuits go through the following stages:
- The Plaintiff files a Petition, Complaint, Affidavit, or some pleading in the Court alleging his / her claim against the Defendant!
This initiates the lawsuit and the Plaintiff is subject to the Jurisdiction of the Court. Once this occurs the Court may enter judgments in favor of, or against the Plaintiff on the matter before the Court.
The Plaintiff then gets Service on the Defendant.
This Service is made by getting a copy of the Petition, Complaint, Affidavit or other pleading to the Defendant, and notice that he / she is being sued.
This Notice is most commonly called a summons which tells the Defendant that he / she is being sued, and instructs the Defendant on what he / she must do to protect his or her interests.
The methods of Service are provided by Statutes in each state, and in the Federal Rules of Civil Procedure in Federal Courts. In Oklahoma the methods of service are found in Title 12 O.S., Sections 2004, et seq.
The Most Common Methods of Service are:
- Personal Service by Sheriff or Private Process Server;
- Certified Mail;
- Notice by Publication in a newspaper.
Generally Publication Service is not acceptable when money judgments are sought.
Until the Defendant is properly Served according to one of the statutory methods, the Court has no Jurisdiction or Authority to enter a judgment against him or her!
However, once Service has been legally made, the Court has Jurisdiction to enter judgments against him or her on any issues or claims brought by the Plaintiff.
Once Service is made the Defendant must then follow the instructions given in the Notice or Summons.
- The Most Common Instructions are:
- Answer the Petition of the Plaintiff within a certain number of days. - ( 20 days in Oklahoma, and in Federal Courts ); or
- Appear in Court at a certain time, date and Place.
Unless the Defendant follows the instructions on the Notice or Summons on the date specified the Court will likely enter a Default Judgment against the Defendant.
This Judgment will most likely grant the Plaintiff whatever he or she had requested in the original petition, complaint, affidavit or other pleading.
A Judgment may also be entered in favor of the Plaintiff for court costs, attorney fees and possibly interest.
If the original petition, complaint, affidavit or other pleading filed by the Plaintiff asked for possession of property or restraining orders or other relief, then the Court may also grant Judgment on those issues.
Once the Court has entered judgment the Defendant may never have the opportunity to present his or her own side of the story to the Court!
There are methods of Appealing or attemping to vacate or set aside such a judgment, but the procedures must be properly followed, and the appeal must be timely brought!
In Oklahoma the procedures for vacating a judgment are found in Title 12 O.S., Section 1031, et seq.
These procedures are expensive and time consuming! - And Most of the times unsuccessful!
- If the Defendant follows the instructions on the Notice or Summons and timely Answers the Petition or Appears in Court as required then the law suit continues and the Defendant will have an opportunity to present his or her defenses to the lawsuit and have his day in Court!
What is a Default Judgment?
This is a Judgment entered, usually against the Defendant because he or she has failed to enter into the lawsuit as required by law.
The entry of such a judgment is generally based on an assumption by the Court that the Defendant does not have a Defense to the lawsuit or else he / she would come into court and have the case heard.
The entry of such a judgment is also justified by the public policy consideration that justice delayed is justice denied! - i.e., persons bringing their cases to court have a right to have them tried as soon as possible; a Defendant should not be able to delay a lawsuit by just refusing to get involved after he or she has statutory Notice of the pendency of the action.
How do I know that I'm Being sued?
You will receive Notice or Summons!
Many times people will get a copy of the Notice or Summons, but may think that because the certified mail was signed for by somebody else, or because it was actually Served on someone else, or because they refused to accept the Certified Mail, or refused to take the Notice or Summons from the process server, that they have not been legally served.
- WRONG! - There are many instances where service on another person, or your refusal to accept Service still constitutes good and valid Service which brings the Defendant into the lawsuit.
In Oklahoma see Title 12 O.S., Sections 2004, et seq.
Anytime you get actual notice that a lawsuit is pending against you - then you need to object to the manner of Service in the Court - Not by just ignoring it!
Anytime you get actual notice that a lawsuit is pending against you - contact an attorney of your choosing to advise you as to your options and what you need to do.
Many attorneys, including our office, offer an Initial Consultation at a low price, or in some intances some law firms offer the Initial Consultation for Free!
See - Why Do I Need a Lawyer?
Many times Default Judgments may be entered where Service may be faulty, but the court file may reflect that Service was good.
The Most Common Mistakes People Make When Getting Sued
- Many People Ignore the Summons and Hope It Will Go Away!
- The Lawsuit Will Not Go Away just because you think it is foolish, or because you think the Plaintiff will forget about it; or because you have such a good defense the Court would never grant judgment against you; or because you don't have the time to get involved!
- Many people just call the Attorney for the Plaintiffs, talk the case over with that attorney, and assume that's all they need to do.
- The attorney for the other side is not representing you - he is being paid by the other side to get judgment against you. He is not being paid to give you legal advice, and his interests are adverse to yours!
In most cases that attorney will tell you to get your own attorney - or he may even negotiate with you for a settlement. That's okay, so long as you don't have your own attorney.
That attorney, in fairness to his own client, cannot make any deals with you that jeaopardizes his client.
If the other attorney agrees to let you have extra time to file your Answer in the Lawsuit, get it in writing - and fulful your part of the agreement. If you don't fulfill your part of the bargain the other attorney is under no obligation to you and will proceed to get judgment against you!
- Many people assume that because they haven't heard anything since they got the original summons that the lawsuit has gone away!
- WRONG - If you have not responded in a lawsuit as you were Instructed in the Notice or Summons then a Judgment may be taken without any further notice to you.
After the Judgment has been entered it may be of record for several years without your even knowing about it.
Years later it may show up on credit reports, or you may suddenly have your wages or bank accounts garnished; or be ordered to come to court to Answer as to Your Assets!
- Many people assume that they can handle it themselves, that they don't need a lawyer to help.
Some Courts, such as Small Claims Courts encourage people to come to court without an attorney.
Television programs like Judge Judy - Judge Joe Brown - Judge Wopner and others have encouraged more and more people to take their case to Court.
Justice is swift, and in most cases justice does prevail in these People's Courts.
However, a Judgment in a Small Claims Court is as good, and as damaging, as a judgment entered in any other Court! Sometimes it can be as large as one obtained in other Courts.
In Oklahoma the Small Claims Court can grant judgments up to $4,500.00! The Court can also Order delivery of property, and Order renters from rental property!
If you have been sued in Small Claims Court we recommend that you contact an attorney for a consultation concerning the case that has been filed. Although you may not want the attorney to go to Court with you, you should have advice on the law as applied to the facts in your case.
The attorney may also be able to advise you on how best to present your case in Court - whether or not you have valid cross-claims - and whether or not the case should be transferred to another Court.
- If the Plaintiff does have an attorney - then we recommend that you also retain an attorney to fully represent you.
- If the lawsuit is not in Small Claims Court you should always consult with an attorney to discuss the case and your options.
The Consequences of Ignoring a Lawsuit
- You will have a Judgment entered against you!
This Judgment will be of record for many years and show up on credit reports!
If it is a Judgment for Money Then it may be collected by garnishment of your wages, bank accounts, or from funds that any one owes you!
If it is a Judgment for Money Then it may be collected by levy, execution and sale of your non-exempt assets!
If it is a Judgment for Money Then it may become a lien upon any real estate you presently own, or may subsequently acquire. It may be collected by foreclosure and sale of the real estate!
If it is a Judgment for Money Then you may be required to appear, periodically, in Court to Answer as to your Assets. This is a procedure where the Judgment Creditor is able to delve into your financial affairs to discover any assets you have which may be attached for the payment of the judgment!
The Most Common Lawsuits People ignore
If you have a question of a general nature that you feel should be included in this segment, please let us know.
We also would like to receive comments and suggestions for better Answers.
Although we cannot give specific legal advice on the phone we are willing to answer questions of a general nature.
If your question is of general interest we may include your letter and our response as a part of our website.
- 2001 - 2015 - Joseph E. McKimmey