Wrong person being sued!

[davedavalan]

What is the name of your state? Missouri
I was served a summons to appear in court in two weeks for something I did not do.
The suit is for a past due debt. It list another person with the same last name as me. It claims that me and this other person had a roofing buisness 9 years ago and we had a ad ran in the phone book that was never paid and thats who is suing. Although my name and address are on the summins, I am the wrong person!! I have never been in buisness with anyone and have never done roofing in my whole life. I work in a hospital and have been there over 14 years! I contacted there lawyer and he was rather rude and said he would investigate. I called him today and left a message as he was on the phone with someone else , but he never returned my call. I called the circuit court with no luck. Please help! What do I do? Will this ruin my good name?
PS My name is very common and there are at least 25 listing in the phone book just within 35 miles of my home.
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[justalayman]

You MUST respond to the summons as directed by the summons or the complaintant will seek summary judgement against you.

You need to answer it with the reason you are not liable for the debt BUT be aware there are aften strict rules for proper responses and if not followed, it as good as not answering the thing.

 

[StephenH]

You need to file a motion to dismiss ASAP

You need to file a motion to dismiss ASAP and explain that it is not you that this happened to.

 

[MSACOLLECT]

Go to court

I think your best option is to actually show up in court and have it dismissed that way. There will be paperwork you will get that will clear your name.

 

[justalayman]

actually I believe the correct action is a combination of my and StephenH's advice.

The summons needs to be answered. In it you would state your defense (It wasn't me)

along with that answer you can file for a motion to dismiss. Chances are the motion is not going to be acted on until you actually go to court since the plaintiff may not believe the reason and you will still have to prove your reasons to the court.


The most important thing is to file within the given timeline.

 

[davedavalan]

wrong person being sued

Thanks for the advice. I have written a motion to file with the court. The summons does not indicate how many days I have to anwser. All it has is the court date. I finally got thru to the lawyer that is handling this case and convinced him to look into the files. I sent him copies of my w2, social security wages and a letter from my employer stating that I was employed with them when this debt occured. The lawyer emailed me back and says he is inclined to believe me and tells me the person they are looking for has a different address than mine! he said he recommended to his client that the suit be dropped agaisnt me and has ask me if I have any information to help him locate the real persons on the suit. Anyone have any idea what I need to do now? Do I request a wriiten statement from the lawyer, do I go to court anyway (Its next Moday), do I file the motion anyway? Please help.

 

[acmb05]

Thanks for the advice. I have written a motion to file with the court. The summons does not indicate how many days I have to anwser. All it has is the court date. I finally got thru to the lawyer that is handling this case and convinced him to look into the files. I sent him copies of my w2, social security wages and a letter from my employer stating that I was employed with them when this debt occured. The lawyer emailed me back and says he is inclined to believe me and tells me the person they are looking for has a different address than mine! he said he recommended to his client that the suit be dropped agaisnt me and has ask me if I have any information to help him locate the real persons on the suit. Anyone have any idea what I need to do now? Do I request a wriiten statement from the lawyer, do I go to court anyway (Its next Moday), do I file the motion anyway? Please help.

Unless you get something from the Courts saying the case has been dismissed you need to show up. Also you still need to file the motion just in case.

 

[justalayman]

You absolutely need to go to court.

Additionally, if it is very evident the attorney and their client sued a person (you) that had been proven to be the wrong person prior to the court date, you should consider suing the attorney and their client for a frivilous lawsuit and attempt to reclaim any losses incurred by you.

 

[Chien]

It appears that you’ve been given a Chinese menu to pick from, but a review of the Missouri Rules of Civil Procedure prompts the belief that justalayman’s suggestion to combine his advice with that of StephenH is the safest course.
Rule 55.27 indicates that a Motion to Dismiss framed as a “failure to state a cause of action upon which relief can be granted” could be filed in lieu of an Answer or together with an Answer, the presumption being that, if the motion failed, you would be required to Answer. (In my state, this would be called a demurrer.) But the motion would probably be treated as a First Response, with a filing fee comparable to an Answer, so your costs are the same. As you are doing this yourself, without the aid of an attorney, I’d suggest a “belt and suspenders” approach.
Rule 55.27 reads in pertinent part as follows:
“RULE 55.27 DEFENSES AND OBJECTIONS HOW PRESENTED BY PLEADING OR MOTION MOTION FOR JUDGMENT ON THE PLEADINGS
(a) How Presented. Every defense, in law or fact, to a claim in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
(6) failure to state a claim upon which relief can be granted,
A motion making any of these defenses shall be made within the time allowed for responding to the opposing party's pleading, or, if no responsive pleading is permitted, within thirty days after the service of the last pleading. Motions and pleadings may be filed simultaneously without waiver of the matters contained in either. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to the claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 74.04.”
Ask the Court to treat the motion as a Motion for Summary Judgment and enter a Dismissal with prejudice. As to the attorney’s offer to talk to his client about a dismissal, to borrow one of DC’s favorite sayings, if it isn’t in writing (the dismissal), it didn’t happen.

If you are successful, make sure to keep the letter and data that you gave to the attorney. Then you might consider a Motion for compensation under Rule 55.03, which provides:
“The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or good faith argument ..."
"If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or it's own initiative, shall impose upon the person who signed it, a represented party, or both, an apporpiate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of filing of the pleading, motion, or other paper, including a reasonable attorney's fee."

You can find the Rules here: http://www.plf.net/pro/mociv.htm