I have discovered a state law which potentially opens up a major loophole for crooks to take advantage of an innocent person, and do it legally. To help illustrate the repercussions of this loophole, I’ve come up with a potential scenario.
Say you’re a crook looking for some quick, easy cash. To get it, you draft up a civil summons and complaint and serve it on any average-day citizen – perhaps a neighbor, or even a random person you picked out of the phone book, claiming the said individual owes you money.
You call up a pocket server to deliver the summons. Heck, why even bother paying the service fee, just go to the alleged defendant’s home and tape it to their front door.
Upon receiving the summons, the defendant is confused. It looks like a legit summons and complaint, but it wasn’t served by a pocket server, nor does he/she have any knowledge of the said debt. The summons appears legit, and says the he/she has 20 days to send a response to the Plaintiff.
The bewildered individual calls up the courthouse to get clarification, but the Court Clerk states that there is no record of a civil summons on file.
To be safe, the alleged Defendant drafts up a proper response to the summons, and sends it within the twenty days to the address listed on the summons.
When the 20 days expires, the Plaintiff heads down to the courthouse to visit the Clerk; summons and complaint in hand. The Plaintiff presents the summons and complaint and requests a default judgment be made against the Defendant listed because he claims that the Defendant failed to respond.
The Plaintiff actually did receive the response, but chose to ignore it, and instead shredded it so there’s no proof he ever received it. Since the Defendant didn’t send the response through certified mail, nor obtain an affidavit of service, he has no actual proof that he did respond.
After a quick review of the summons and complaint, the Clerk grants a default judgment against the Defendant for the amount listed. No Judge ever lays eyes on the documents. Soon after, the Defendant is puzzled to see his income garnished.
Sound too hard to believe? Not in North Dakota.
That’s right, according to State Law, you can receive a default judgment against you without your day in court, whether you actually owe the Plaintiff or not. In fact, one can be granted without a judge ever seeing any legal documents.
North Dakota is one of three states in which the commencement of a civil action is upon the service of a summons, rather than the filing of a complaint with the court. It’s known as “Hip Pocket Service” or simply “Pocket Service”. This means that the story above isn’t so far off of possibility as you might think.
“All that is required to commence a civil action is the service of a summons upon a defendant .This is unlike Rule 3, FRCivP, which requires the filing of a complaint with the court in order to commence an action. Rule 3 was derived from Section 28 0501, North Dakota Revised Code of 1943. See also Rule 4(c) concerning contents of the summons and service of the complaint.” -North Dakota Rules of Civil Procedure, Article II, Rule 3.
Now, I’m not saying that everything the Plaintiff above did is actually legally. For one thing, he lied to the Court by claiming he never received a response, when in fact he did. He is also in violation of the Fair Debt Collection Practices Act by failing to provide validation of debt within 5 days of initial communication, in this case, a summons. Unless the Defendant challenges the matter, however, it’s highly unlikely that the Plaintiff will be caught.
What’s scary is that, even if the Plaintiff followed every rule in the book, he still could have gotten a default judgment against the innocent Defendant above, if the Defendant actually didn’t respond, failed to file a proper response, or otherwise did not dispute the claim.
This major loophole in our legal system certainly opens the doors for the dishonest and crooks to potentially collect money from innocent people who don’t actually owe it, and leaves the victim limited options to defend himself.
Even if the Defendant actually does owe the money, he can still get screwed over by the Plaintiff. For instance, if his response included an offer of settlement, the Plaintiff could still claim he didn’t receive a response – and be granted the full amount requested, including all legal fees.
This law basically gives the Plaintiff in a civil case all the control, and the Defendant limited options to provide a defense. Most of the legal process is done out of sight, without any involvement from the court, completely off the record. In affect, the Defendant is guilty until proven innocent, and the possible recourses for proving his innocence are extremely limited. Guilty or not, a judgment can be granted without ever stepping foot in a courtroom, and without a judge’s involvement.
I don’t know about you, but I have a problem with that. This law needs to be changed before someone does fall victim in such a situation as outlined above. Perhaps, it already has. Everyone should be allowed their day in court, allowed the opportunity to dispute an allegation to an impartial judge or jury.
If you feel as I do, write your state legislators to close this unfair legal loophole.
