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  • Writer's pictureBret "Recovering Lawyer" Thurman

Serving the Small Claims Court Petition

Notice and hearing are two of the bedrock principles in the Fourteenth Amendment. Most things are streamlined in small claims court. Many of the normal rules of evidence do not apply, and rules of civil procedure, both written and unwritten, are virtually nonexistent. But that’s not the case regarding the notice requirement. This rule is too fundamental to overlook.

All that being said, there are a few accommodations to be aware of. For example, in most jurisdictions, the defendant has roughly ten days to file a written response. In higher courts, most defendants have at least twenty-one days. The shorter response period helps speed cases through small claims court, and in this venue, speed is basically what it’s all about.

Local Service

Landlord/tenant disputes, almost always over unpaid rent, dominate most Justice of the Peace dockets. Disagreements between individuals and contractors or mechanics are usually a close second. Disputes between individuals over money typically completes the top three. In terms of service, these situations are usually very straightforward.

If you are a landlord and you need to evict a tenant, you probably know where the tenant resides. Ditto the other types of disagreements. The rules, which are based on the aforementioned Fourteenth Amendment, usually require personal service, so catching the defendant at home could be a problem. Other defendants refuse to answer the door or otherwise avoid service. That’s the classic “ignore the problem and it will go away” mentality which is quite prevalent today.

If the defendant dodges service, most Small Claims courts allow “nail and mail” service. The plaintiff leaves a copy of the citation at the door and mails a copy to the defendant. Some courts require due diligence affidavits in these circumstances.

Out of State Service on a Home Warranty Company

Home warranty companies are almost always corporations. Most states require these entities to have a registered agent for service of process in that state. That registered agent could be an individual or company. Small, local corporations often designate individuals as registered agents. Larger corporations, such as home warranty companies, usually work with other companies.

Locating the registered agent usually requires some legwork. This homework must be completed before you file your small claims court petition. If the service address on the citation does not match the address in the petition, the service could be invalid.

The procedure for locating a registered agent varies significantly in different jurisdictions. The process almost always costs some money. If you prevail, this money is included in court costs. This site is a pretty good place to begin your search. The local sheriff or constable can serve the citation. Or, you can work with a private process server.

As mentioned, unless defendants file written responses within ten days, the court might enter a default judgement. As a result, local plaintiffs have a significant advantage against out-of-state defendants.

Let’s break it down. The ten-day clock starts ticking when the Registered Agent is served. The citation then travels to the defendant’s office, where it usually sits in an inbox for a couple of days. So, by the time a lawyer sees it, most of the ten-day waiting period has usually expired. So, the lawyer has little time to prepare a response.

Affirmative defenses are a good example. Normally, the defendant must plead defenses like estoppel, statute of limitations, accord and satisfaction, waiver, and laches before a general denial is filed. All that Legalese is hard to understand. In plain English, as time passes, the defendant is less able to defend the claim.

If the home warranty company does not have a registered agent, talk to the clerk. The court might issue a default judgement straightaway to punish the corporation for not following the rules.

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