Mathew Cox BLET 2009 D 4/23/2021 CIVIL PROCESS Civil Process: Is one party trying to recover something of value from another party. Under the law, the summons must be issued within five days after the complaint is filed The plaintiff is the party bringing the lawsuit and the defendant is the person or entity the plaintiff is suing. A civil action begins when the plaintiff files a complaint with the clerk of superior court. The complaint does not need to be excessively detailed, but merely needs to give the defendant a brief statement of the allegations against him, and the legal relief or recovery (remedy) the plaintiff is seeking. Valid service of the summons gives the court jurisdiction over the defendant. “In personam” means that there is jurisdiction created over the person. “In rem” jurisdiction means there is jurisdiction over the “thing” or in this case, property. Magistrates summons (AOC-CVM-100) There are three types of complaints this court has jurisdiction to handle. They are: civil cases for $5,000 or less in which the plaintiff seeks money, possession of personal property, or summary ejectment. Civil summons (AOC-CV-100) This summons is issued when a plaintiff files a complaint to begin a civil action in district or superior court. (Any civil case, including others for breach of contract, automobile negligence cases, medical malpractice; family law matters such as divorce, child support, child custody; injunctions; and other civil matters.) If a defendant fails to file an answer within the appropriate time, a default judgment may be entered, which means that a judgment is in favor of the plaintiff for the amount the plaintiff sought in the complaint will be entered _automatically_ without a trial. Must be SERVED within 60 days of ISSUE Must be ANSWERED within 30 days of being SERVED Special proceedings summons (AOC-SP-100) A special proceeding is heard initially by the clerk In a special proceeding, the plaintiff is called a petitioner, the defendant is called a respondent, and the complaint is called a petition or a motion. The summons tells the defendant that the next step to take is to file a written answer with the clerk within 10 days. The majority of special proceeding summons that deputy sheriffs serve are “Notice of Foreclosure.” Unlike a summons in summary ejectments, the _Notice of Foreclosure_ involves a mortgage or deed of trust against real property. Mathew Cox BLET 2009 D 4/23/2021 (a) The _Notice of Foreclosure_ specifies a time and date for a hearing before the clerk of court. Service must be ten (10) days prior to the hearing date. (b) In some cases the respondent/defendant cannot be located within your county. In such cases _posting_ the _Notice of Foreclosure_ on the property must make service. Posting the _Notice_ requires at least twenty (20) days prior to the hearing date. Serving the foreclosure papers in person gives the court “in personam” jurisdiction to do that. Posting the papers without personally serving the papers on the defendants gives the court “in rem” jurisdiction to turn the property back to the mortgage holder even though the defendants were not personally served. Juvenile summons (AOC-J-340, AOC-J-142) The juvenile summons, AOC-J-340, is issued when a juvenile proceeding is initiated against a juvenile for delinquency (which means the juvenile is alleged to have committed an act that would be a crime if he or she were an adult) or for being undisciplined (out of the control of the parent). The juvenile summons, AOC-J-142, is issued when a juvenile proceeding is initiated because a juvenile is alleged to be abused or neglected. What to serve, who can serve a) In each of the cases mentioned, a copy of the complaint (or petition) and of the summons must be served on each defendant. Without proper service on the defendant, the court does not have jurisdiction over the defendant and the case cannot proceed. Mathew Cox BLET 2009 D 4/23/2021 The summons must be issued by the clerk of the county in which the lawsuit is filed. each method of service is of equal status, which means the deputy does not have to try one type of service before serving by an alternative method. Nor does the deputy have to make numerous attempts at one type of service before resorting to another Serving Subpoenas (AOC-G-100) 1. A subpoena is a legal process that commands a person to appear in court at the appointed time. There are two kinds of subpoenas. One is a subpoena to testify, which is an order to a witness to appear to testify at a court proceeding or deposition. The subpoena tells the witness the name of the court, title of the case, and the date, time, and location where the witness is to appear. The second is a subpoena to produce evidence (formally called a subpoena duces tecum), which is an order to bring specified evidence (typically documents) to a court proceeding. This subpoena tells the witness the name of the court, title of the case, specific items to be produced, and the date, time, and location of the court proceeding where the items are to be brought POST JUDMENT REMEDIES The most common post-judgment remedy is called "execution." If the debtor has filed for bankruptcy, the deputy should not proceed with levy or other attempts to collect on the writ of execution. If the deputy has already levied on property before discovering the bankruptcy filing, the deputy should “unlevy” (return) any property so taken. Types of executions Executions against property (most common) Executions against the person Executions for delivery of specific property The most frequently issued type of execution is issued against property which requires levy on and sale of personal or real property to satisfy a judgment. Executions for Delivery of Specific Property are the second most frequently issued type of execution. These executions are better known as writs of possession for real or personal property and summary ejectments. Executions cannot be issued more than ten years after the date of the rendering of the judgment. Only property owned by the judgment debtor may be levied on and sold under the execution. Mathew Cox BLET 2009 D 4/23/2021 All real property sales must be held at the courthouse door of the county where the land is located. Personal property sales must be held at the location of the property. The sheriff shall, within five days after the date of the sale, file a report thereof with the clerk of the superior court. If the property to be taken is real property, the sheriff must remove the person named in order to deliver possession to the person entitled. If necessary, the sheriff has the power to break and enter the premises to evict the tenant forcibly. This is the only post-judgment remedy by common law allowing use of force. Legally, there are no excuses recognized for failing to return a writ or process within the time allowed. Criminal summons are summons issued by a magistrate, clerk of superior court or judge which must be served in person on a defendant. It notifies a defendant that he will be tried for a felony, misdemeanor, or infraction for which he is being charged. The summons has a court date on it, and although a criminal summons is valid for 90 days, a copy of the summons has to be served on the defendant before the court date.