So You've Been Sued - Now What?

As always, before reviewing this post, please read my disclaimer by following the link above or by clicking on this link.  As always, the legal principles discussed here are applicable only to the Commonwealth of Virginia.

Introduction

Many people, when they plan to interact with the courts - especially the civil side of the courts - would only plan to do so with an attorney.  As a result, frequently the only interaction someone has with the civil courts without an attorney is when they are sued - after all, if you are the one being sued, you probably did not plan ahead to have an attorney already.  The first question people often ask when they've been sued is "ok, what do I do now?"  My answer, as you can probably imagine, is "hire an attorney."  The point of this blog, however, will be to discuss how fast you need to hire that attorney, and what you can do to protect yourself if you wait too long.

When the Clock Starts Ticking

The clock on your deadline to respond to a lawsuit does not start ticking the moment a lawsuit is filed.  After all, if a lawsuit's just been filed, how would you know about it in order to respond to it?  As a result, the clock does not start to tick until you have been "served" with the lawsuit.  Service of a lawsuit occurs when a summons, along with the Complaint, is delivered to you by either a private process server or a deputy sheriff.

Now, you've probably seen the movies where the process server pulls some trick on some unsuspecting person in a public place so that the person identifies him or herself, and then gives them the papers and says "you're served."  While that is one of the few things shown on TV that actually does happen on occasion (I once had a process server serve an individual while he was at a work convention, and he repeatedly denied being that person, not realizing he was wearing a name tag), that is not necessary if the person suing you knows where you live.  If they know where you live, the process server can come to your home, knock, if a member of your family older than 16 is home but you are not he or she can give the papers to that person, and if no one is home, he or she can tape the paperwork to your front door, and that is when you are considered served, and this is the moment the clock starts ticking.

How Long is the Clock?

Well, this is where things get a little trickier.  You see, in Virginia, we have two completely separate courts for civil cases - the Circuit Court and the General District Court.  The Circuit Court is technically the "higher" court since you can appeal General District Court rulings to the Circuit Court, but most lawsuits start in the General District Court.  The General District Court has jurisdiction to hear any lawsuit for less than $25,000, while the Circuit Court has jurisdiction to hear any lawsuit for more than $4,500 (so yes, if a lawsuit is between $4,500 and $25,000 a plaintiff can choose which court in which to file, but most choose the General District Court since it typically proceeds much faster).  Also, if you're being sued for something other than money (say, "specific performance" on a contract, or an injunction), those can generally only be in the Circuit Court, although the General District Court is the only court that can hear evictions.  Welcome to the complexity that is the Virginia court system.

Add to that the fact that within the General District Court there is the main civil court, and the small claims court.  The small claims court has jurisdiction to hear any lawsuit for less than $5,000 (so yes, if a lawsuit is between $0 and $5,000, the plaintiff can choose whether or not to file in small claims court, and if it is between $4,500 and $5,000, the plaintiff can choose whether to file in GDC small claims, GDC regular civil, or Circuit Court).  The reason this is important to know is that all three "courts" have different procedures for responding to a lawsuit.

How to Tell Which Court You Are In

So, telling you there are three courts does not help you very much if you cannot tell which court your case is in.  The easiest approach is to look at the top of the papers you were served with.  If it says "In the Circuit Court of X County" you are in the Circuit Court.  If it is a "Warrant in Debt," "Warrant in Detinue," or "Summons for Unlawful Detainer," you are in the General District Court.  If it is a "Warrant in Debt - Small Claims Division" or a "Warrant in Detinue - Small Claims Division" you are in the small claims court.  If you cannot tell, do not guess - either call the courthouse or speak to an attorney.

Timeline in Circuit Court

If you have been sued in the Circuit Court, you have 21 days from the day you are served in which to file "responsive pleadings."  A responsive pleading can be an "Answer," a "Demurrer," a "Plea in Bar," or a similar pleading, but this must be in writing, and it must be done properly to avoid a default judgment.  Note, if you take more than 21 days, you are in default.  If you are in default, you are entitled to no further notice about the case, and a judgment can be entered against you without you being told that this has happened.  It is in your interest to hire an attorney ASAP if you are being sued in the Circuit Court so that a responsive pleading can be done properly.

Timeline in the General District Court

If you have been sued in the General District Court, but not in the small claims division, your timeline is a little looser.  Unless the box on the summons states that you must appear to try your case, the date listed on your summons is what is called a "first return."  At the first return, you will tell the judge whether or not you agree that you owe the money you have been sued for.  If you do, a judgment will be entered against you.  If you do not, a trial date will be set.  If you do not appear, a default judgment may be entered against you.  As a result, you do not need to file anything in response to a General District Court summons, but you do need to appear at the first return.  If you cannot appear, call the court clerk immediately and the clerk will explain the procedure for getting a continuance.  As for when you should hire an attorney, I would recommend doing so before the first return - if the judge asks any follow-up questions, the attorney will be better prepared to face them.  However, you do not really need an attorney until you are filing something or preparing for trial. 

What do I mean by filing something?  Well, typically at a first return at least one party will ask for "pleadings."  This means the plaintiff must file and send you a "Bill of Particulars" outlining the details of the case.  Then, you must file and send the plaintiff an "Answer and Grounds of Defense" outlining your defenses to the case.  Failure to file your Answer and Ground of Defense on time can result in a default judgment being entered against you.  As a result, I would strongly recommend you have an attorney well before the deadline to file your Answer and Grounds.  As a final note, if you do not have an attorney at the first return and the other party does not request pleadings, you should.  There's always a chance they won't file theirs on time (in which case you can get the case dismissed), and a Bill of Particulars will tell you the exact arguments you face, as the plaintiff cannot argue facts at trial that were not alleged in the Bill of Particulars.

Timeline in GDC - Small Claims Division

The Small Claims Division is a little faster than the main General District Court.  There the date on your summons is your trial date, so be prepared to go to trial that day, and there is nothing else you need to do before then.  However, you are not permitted to have an attorney in the Small Claims Division.  If you wish to hire an attorney to represent you in the case, you can do so, but they will then need to file a motion to remove the case to the main General District Court, where it will be tried on the timeline outlined above.

What about the Juvenile Court?

Those who know a bit about the Virginia court system know that we have one more trial court I have not discussed in this blog post - the Juvenile and Domestic Relations District Court.  I left that off first of all because you are not sued for money in the way we typically think of it in the J&DR Court.  The only civil cases you can be sued for in the J&DR Court are child custody and visitation, child support, spousal support, adoption recommendations, and protective orders.  I left the J&DR Court out for two reasons - first, the procedures and deadlines vary dramatically from county to county within Virginia, and second, the procedures and deadlines vary dramatically from type of case to type of case.  When you are served with a J&DR Court case, at least one document will have a court date on it.  You should call the clerk and ask if that date is a "status hearing" or a "hearing on the merits."  If you do not have a court date on your papers, then one hasn't been set yet - although you should still call the clerk and make sure.  I recommend hiring an attorney or speaking with the court clerk about your specific case - rather than following any timeline suggested on a blog.

What to Do if a Default Judgment is Entered Against You

The first thing to do is figure out why a default judgment was entered against you.  Was it because you decided to ignore the case?  Or was it because something came up that prevented you at the last minute from appearing at the GDC court date or filing an Answer in the Circuit Court?  Or was it because you never knew about the lawsuit in the first place?

Virginia places a premium on "certainty" in our judicial outcomes.  As a result, once a default judgment is entered, it is very hard to get undone.  Moreover, the rules are different depending on when you are asking to have the default get undone.  Nonetheless, it is possible to get a default undone in some cases.

If you are requesting the default judgment be vacated within 21 days after it is entered, you need to show the court "good cause" as to why you were in default.  A sudden trip to the emergency room, a traffic jam on the way to court, etc. can, although there is never a guarantee, be "good cause."

If, however, it is more than 21 days later, a default can only be vacated for five reasons.  They are as follows:

1)  Clerical Error - If the judgment is supposed to be against someone else with the same name as you, but the court clerk accidentally listed it as you (by using your address, for example), or the clerk accidentally records the judgment twice, you can undo the default judgment.

2)  Fraud on the Court - The Plaintiff lied to the court about where you lived, how much you owed, etc.  This must be filed within two years of the judgment.  Please note that "fraud" is very hard to prove as you must prove that the plaintiff intentionally misled the court.  An accident or mistake of fact by the plaintiff is not fraud.

3)  A void judgment - A void judgment is one that the court was not authorized to give when it gave it.  This has nothing to do with the validity of the claim itself.  A judgment is generally only void if the court lacked jurisdiction to hear it - either subject matter jurisdiction (say a General District Court judge entering judgment on a lawsuit for $40,000), or personal jurisdiction (you were never properly served with the court paperwork).  This is the most common way a default judgment is undone, as oftentimes a default is due to the address on which a person was served being out of date.  Note, however, that just because you did not receive a summons does not mean your judgment is void.  In some cases you can be served via Secretary of the Commonwealth, and that's still good service even if the address is out of date on the theory that you should have kept your creditor appraised of your change in address.

4)  An accord and satisfaction - If, prior to the entry of the judgment, you and the plaintiff reached a written agreement settling the matter, and you fully paid off that agreement, prior to the entry of the judgment, and you can prove it, or if you had fully paid everything the plaintiff seems to be asking for prior to the entry of the judgment, then the judgment will be vacated.

5)  Military service - If you are a member of the armed forces on Active Duty, you have rights under federal law to protect you from some default judgments.  If you did not waive your rights (by actively participating in the case), and those rights were not followed by the court (say because the plaintiff did not know you were on Active Duty), you can get a default judgment vacated.

That's it.  So, if you don't have "good cause" within 21 days, or even if you do have good cause, but it's been more than 21 days and none of the above situations apply to you, then you are stuck with the default judgment, no matter how good a defense you had.  From there, you just have to figure out how to pay.  As a result, the best way to get out of a default judgment is to not allow one to occur in the first place.

Conclusion

Being sued is a scary thing, and many people simply do not know what to do when they have been sued.  They know they need to get an attorney - but they do not know how soon, after all, they want time to interview multiple attorneys.  The answer does depend on which court you have been sued in, but really, no matter which court you have been sued in, you want to find an attorney ASAP.  When you are served, try speaking to an attorney that day, the next at the latest, and you will probably be in good shape.  If you have been sued and would like someone to defend you please feel free to give us a call at (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up a consultation.  If it turns out your suit is in an area we don't practice, we can give you a referral.  Otherwise your consultation is free for up to half an hour!