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Do I need to answer a complaint with an affirmative defense even though this complaint don't have a case number

Seattle, WA |

I got served with a summons and complaint but no case number attach. I assume the plaintiff has not file with the court yet. I read that this is pretty common in state of WA. So if I answer the complaint with affirmative defense, what good is it if no case number has been assign to it? And how do I file this with the court if there is no case number?

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Attorney answers 4

Posted

Unlike many (most?) other states and unlike the federal courts, in this state a plaintiff can start a case by merely serving an unfiled summons and complaint. It's a cheap way of avoiding the filing fee if the defendant can't be found. It is also a cheap way of testing the defendant's resolve in fighting the case, so that the plaintiff can see whether it's worth the effort to keep going. Sometimes a plaintiff will serve an unfiled summons and complaint to stop the expiration of a statute of limitations if the statute of limitations is close to the deadline. An unfiled summons with complaint is also a crass way of lulling the defendant into treating the complaint too casually and getting caught in a default. Even though it's unfiled, you must still answer it before the deadline by serving (delivering) your answer to the attorney or party who signed the summons. If you don't serve your answer by the deadline, the plaintiff can simply file the case later along with an affidavit that you didn't answer it, and get an immediate default judgment against you. Without a case number, there is no place you can file it in court, so your delivery to the plaintiff's attorney who signed the summons is the only way you can prevent a default. That means you need proof of delivery, either by having the plaintiff's attorney place a receipt on your file copy, or have an independent person deliver the answer and prepare an affidavit of delivery. No ethical lawyer will refuse to give you a receipt for delivery, and law offices with receptionists will usually have a receipt stamp to mark your file copy. You can serve your answer by regular US Mail, but you need to deposit it into the mail 3 days before the deadline. Some people think certified mail with return receipt requested is necessary. Certified mail is not necessary, but if you use certified mail, make sure you also send it by ordinary first class mail. Certified mail alone is not worth much if the item is returned unclaimed, and ordinary first class mail actually has a better chance of actually reaching its intended destination. All you need is to mail it properly addressed with first class postage and prepare an affidavit saying you did so. Although not technically required, it is also advisable to notify the plaintiff's lawyer who signed the summons by phone and email that you are preparing your answer and that you do not intend to default. Keep an activity summary of everything which happens. If the plaintiff, after receiving your answer, decides to go ahead and file the case, the plaintiff is required to file the complaint along with your answer. That's when a case number is assigned, and you will get notice of the case number then. After receiving your answer, the plaintiff might decide not to file, and merely treat the unfiled documents as an opportunity to discuss settlement. If settlement discussions occur but are unsuccessful, the complaint (along with your answer) could be filed later. If you want to make sure the case does not hang in limbo indefinitely, you can serve (deliver) a demand that the plaintiff file the case immediately. Then, if the plaintiff doesn't file, the unfiled complaint is a nullity and if the plaintiff wants to bring it up again the plaintiff has to start over from scratch. Many people would prefer to avoid having their names shown in public court dockets as defendants, because the record shows up in credit reports later. Thus if you think there's a possibility of settlement you don't necessarily have to demand that the case be filed if the plaintiff is not in a hurry to file it. So, you don't have much time. Pay attention exactly to the instructions in the summons even if it's not filed yet.

This answer is intended as a courtesy only, and does not constitute an attorney-client relationship between the attorney and the questioner.

Pamela Koslyn

Pamela Koslyn

Posted

Wow. Great answer. CA courts don't accept complaints without a filing fee (now $435) and they won't enter a default without proof that a case was properly filed and without proof that it was properly served.

Asker

Posted

Would I have to be served again if they decided to file later or how else would I know they filed? The problem is I don't live in the state of Washington so it is tough to keep up and it will be hard if I have to go to court there.

Asker

Posted

Would I have to be served again if they decided to file later or how else would I know they filed? The problem is I don't live in the state of Washington so it is tough to keep up and it will be hard if I have to go to court there.

Jerry A Stimmel

Jerry A Stimmel

Posted

They do not have to serve again. They can let it hang in limbo for months unless you demand that they file. If they file, they have to send you notice (by mail) that it's filed, and that will be the first time you will learn the case number. When (if) they file, they are also required to file your answer along with their summons and complaint. If you change mailing addresses, you need to keep the plaintiff apprised of the change. The fact that you are doing this without a lawyer makes me fret that you might not be setting up your affirmative defenses quite right, and you might have counterclaims which are waived if not asserted. Counterclaims are not the same as affirmative defenses. I am also assuming that the court is, or will be, in a superior court, not a lower district court. At the end of this message is a link to the rules of civil procedure in the superior courts. Pay particular attention to Civil Rules 5 through 15. http://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=sup&set=CR

Asker

Posted

Rule 5 states they have to serve me for every changes they make.

Jerry A Stimmel

Jerry A Stimmel

Posted

Yes they do, and that's why they must send you notice of the filing and the case number. I'm not sure I understand your comment about Rule 5.

Robert M Lorey

Robert M Lorey

Posted

I concur with Mr. Stimmel's excellent posts, and wanted to add a point. Whenever you communicate with the plaintiff's attorney it is always a good idea to give that attorney a complete set of your contact information (name, address, phone number, email address, fax number, etc). This information will allow the Court, insurance companies and any other interested entities to reach you most effectively. Since you have already received the complaint, there is no help in trying to hide from anyone involved in the case.

Posted

Try going to the court's website and see if you can find the case under the list of parties named. If so, you should find thee case number. Also, the papers should have the phone number of the pltf or his atty. Call, email, write and ask that they send you a filed copy of the complaint.

Asker

Posted

I'm about 99% sure they did not file.

Posted

Its an old trick. The Plaintiff serve you and if you do not respond in 20 days, they will get a default order in place. You need to contact who ever drafted the complaint, send them a notice of appearance and demand that they file.

Please note that THESE COMMENTS ARE NOT INTENDED AS LEGAL ADVICE and are for informational purposes only. This response is not intended to create any attorney-client relationship and is only based on the limited facts given. The response might change should additional facts be learned and should not be relied on as legal advice. It is recommended that you consult with an attorney who can properly assess the situation, as well as all pertinent facts, prior to taking any action based on the foregoing statements

Asker

Posted

But I don't want them to file.

Dave Hawkins

Dave Hawkins

Posted

I understand. But if you do not demand that they file, they can do so at any time without you knowing it and get a default judgment against you. The rule is designed to prevent that from happening.

Asker

Posted

If they file after I answer, wouldn't I get served again with a amendment that would include a case number?

Jerry A Stimmel

Jerry A Stimmel

Posted

It would not necessarily be an amendment, but you will get notice of upcoming motions and hearing dates. There will be a timetable of required steps which some counties will send, but even if you don't get the timetable you'll need to sort through the civil rules to figure out the deadlines for certain actions. To keep from being surprised to learn that a case has been filed, the only sure way is to keep checking the court's docket, which can be done online. Each side can require the disclosure of documents, facts, and admissions from the other side. From your comments about the rate of default judgments obtained by the plaintiff, I infer that this may be initiated by debt collection agency, and if so, it's probably within the dollar limits for mandatory arbitration. That is, for cases in which no claim exceeds $50,000 and the only issue is money (i.e., not equitable claims such as injunctions), in most counties the parties have to take a side-track to mandatory arbitration before proceeding to trial. Only if either side still wants a trial after learning the arbitration result can the case go forward. Arbitration does not mean informal; it still needs preparation. The liability for paying attorney fees by the loser to the winner is potentially a material risk for both sides.

Posted

Look up the case on the court's website by doing a name search for the plaintiff's name or for your name. It could be that no case was even filed.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

Asker

Posted

I checked the court website and nothing shows up on the search with my name and theirs.

Asker

Posted

I know this is a trick to get a default judgement if I don't answer. When I search for their name, 95% of their case is default judgement that they file the summons, complaints and default judgement the same day.

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