LEGAL GUIDE
Written by attorney Timothy C. Nies | Sep 25, 2011

What to Do if you are Served with a Fraudulent Lawsuit

If you have been sued and served with a complaint, which is completely fraudulent, Florida Judges have the authority, under Florida Rule of Civil Procedure 1.150, to strike the complaint right from the beginning. Please remember that if you have been served with a complaint, you should immediately contact an attorney. Under Florida Law, a sham pleading is a complaint, petition, etc. that appears to be in a proper format, but in actuality is false, and which is not pleaded or brought in good faith. Specifically, a Florida court in a the 1934 case, Rhea v. Hackney, defined a sham pleading as being "palpably or inherently false, and from the plain or conceded facts in the case, must have been known to the party interposing it to be untrue."

For example, if you have been served with a lawsuit by a sore ex business associate, which falsely states he is the owner of your vehicle, and which you can show that you are the rightful owner, and your ex business associate is falsely alleging that the vehicle is his, a Florida court should strike the complaint.

For a pleading to be a "sham" pleading, the person or entity filing the pleading must have filed it "without color of fact." It is a sham when it is inherently, or wholly false, and when considering conceded facts, must have been known by the person or entity filing it to be utterly untrue. If it is clearly established that perjured testimony has been given by the person suing you, a Florida court may cite the person for contempt and possibly send the party to prosecutor’s office for investigation. The court will also strike the pleading, or sworn testimony, which has been clearly, and unquestionably, proven to the court to be a sham pleading.

Again, if you have been served with a complaint, whether or not it is a sham, you should speak with an attorney before the deadline for you to respond to the complaint. Do not just sit back and do nothing. Otherwise, you run the risk of the court entering a default against you based on a complaint, which contains inherently false information. Oftentimes, defendants in small claims courts cannot afford to hire an attorney. If this is the case, many attorneys, including this author, will provide you with a free consultation.

You can file a motion to strike a pleading as a sham on your own if you do not have an attorney and have been sued individually. Again, consult the small claims rules of procedure at the link below. You will need to prepare a statement of the facts and have it notarized by a notary. You should attach a copy of the sworn statement of the facts, or affidavit, along copies of any evidence, to the motion to strike.

After you file the motion to strike a sham pleading, with your affidavit and evidence, the judge is required to set a hearing on your motion. For small claims cases, please see the small claims rules that are listed on the Florida Bar’s website, www.floridabar.org. Here, the judge will hear from both parties and review all the evidence. If, for example, the plaintiff in a lawsuit falsely claims that he is the owner of a car belonging to you, you should write out the facts that support that the car is indeed yours in your affidavit and include the bill of sale showing that the car was purchased by you, and a valid title and registration showing that the car is indeed your car and registered as your car.

A judge will strike the pleading as a sham pleading only if the plaintiff and defendant do not dispute the pertinent facts, and only if the pleading, or complaint, is not supported by the facts. If the complaint filed against you is supported by even some amount of evidence, then the judge cannot strike the complaint as a sham.

Remember, that if you have been served with a complaint, whether or not you believe it is based on false information, you should immediately speak with an attorney.

Disclaimer: This article is for general information only and should not be construed as formal legal advice nor the formation of a lawyer/client relationship. If you have been served with a complaint, you should always speak with an attorney right away. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. This web site is designed for general information only.

Additional resources provided by the author

To review the Florida Rules of Civil Procedure and Florida Small Claims Rules, please visit the Florida Bar's website: http://www.floridabar.org.

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