Pocket Service and Pre-Judgment Garnishment

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Pocket service is lawyer slang for the procedural rule in Minnesota that a lawsuit commences on service of the summons and complaint. This is different from the rule in almost all other states and the federal courts, where a lawsuit begins with filing of the summons and complaint.

When coupled with Minnesota’s rules on pre-judgment garnishment, this can cause serious problems. A defendant who was never properly served, for example, can end up getting money taken from their bank account without any notice or any chance to respond to the lawsuit.

The moral: if you discover or are even suspicious you may be named in a lawsuit, look into it. And call a lawyer.

Advantages and disadvantages

Pocket service saves money, since the plaintiff doesn’t have to pay a filing fee when it starts the lawsuit. This is good for consumers, at first glance. However, it also saves money for debt collectors, who are starting hundreds of lawsuits at a time, and thousands every month. Sure, it may save one consumer a few hundred dollars, but it saves debt collectors hundreds of thousands of dollars every month—money that would otherwise be paid to the courts.

Also, consumers may have a better chance at a fair hearing in court than out of it. In effect, pocket service is a far more powerful tool for debt collectors than for consumers. On balance, I would not be a bit sad to see pocket service disappear in Minnesota.

Pre-judgment garnishment

Worse, in Minnesota, the plaintiff will be able to garnish your wages and bank accounts without even getting a judgment or filing the lawsuit with the court. They can serve a garnishment summons on your bank or employer, wait to see if they capture any money, and only then file the lawsuit and incur the filing fee. Scary stuff.

Always answer the summons and complaint

Much of the advice on the internet is that if the court has no record of a lawsuit, you do not have to respond to it. Not true in Minnesota and several other states with pocket service laws. If you do not respond, the plaintiff will be able to get a default judgment—meaning you lose.

If you find out you are named in a lawsuit, however you find out, make sure you get involved, if only to argue that you were never properly served. If you ignore the lawsuit, you may end up losing money without ever having a chance to defend yourself.

  • Ms. Jeannie

    Comment for Sue – What stops the debt collector from lying and saying that you never replied to the original summons is for you (Sue mail your response to the actually court house in which the law suit was file. The address should be on the paper or summons that your received in the mail or by server.

    Good luck to you guys

  • http://caveatemptorblog.com/find-consumer-bankruptcy-attorney/ Sam Glover

    As I said, you would have proof that you served the answer, along with a copy of the answer, that you could show the court to prove you are not in default.

  • Sue

    Maybe I’m missing something. How does the court know you properly answered the complaint? Won’t the plantiff just file their summons and complaint along with proof that you were served and ask for a default judgment? What stops them from getting a default judgment if only the plantiff and I have copies of my answer?

  • http://caveatemptorblog.com/find-consumer-bankruptcy-attorney/ Sam Glover

    You do not need to pay a filing fee unless you are filing something.

    If you answer properly, you will have executed an affidavit or certificate of service, which will show the day you served the answer. That should be sufficient to prevent a default judgment, if you did encounter a particularly unscrupulous debt collector.

  • Sue

    Great info on pocket service. Is the person who is served required to pay a filing fee to “answer” the summons if the complaint has not been filled yet? If not, what stops them from saying you never answered and then getting a default judgment?

  • http://caveatemptorblog.com/find-consumer-bankruptcy-attorney/ Sam Glover

    Mike, please consult an attorney with your questions. You should never talk about the details of your lawsuit in a public forum—like this one. Most consumer rights lawyers will make sure they can help and give you an idea of your options before they charge you anything, so you can decide whether you need to.

    In response to your second question, law firms can be debt collectors, and debt collectors can be law firms.

  • Mike

    Another question. What is the difference between a law firm and a debt collector? Can they be both?

  • Mike

    Thanks for the response. It states district court on the “Summons” and is under $2500. If I do not return the consent form, will they have to serve me in person.

  • Sam Glover

    Whether mail is proper service depends on the circumstances and the type of lawsuit. If it is a conciliation court lawsuit for $2,500, service can be by mail. If it is a conciliation court lawsuit for more than $2,500, service can be by certified mail. If it is a district court lawsuit, service may be by mail if the defendant consents to be served that way. And so on. The answer depends on your situation.

    If you are in Minnesota, get in touch with us, and we can help you figure out the answer in your case, but we will not address your personal situation in public.

  • Mike

    Does it count as service if they just send you an unfilled summons and complaint by normal mail and no return enevolpe? Also the “summons” stated that it is from a debt collector on the back.

  • http://caveatemptorblog.com/find-consumer-bankruptcy-attorney/ Sam Glover

    Great job, Kathy!

    If the process server truly lied, you should contact the Minnesota Department of Commerce, which licenses process servers. They should be able to help.

  • Kathy O

    I am a true case in point in MN of this argument of “Pocket Service”. I had an affidavite of Summons Service filed with the court by a debt buyer. I did not know that I even had a Court hearing until I received the Notice of” Default Judgement”. I fortunately was able to prove that the person who signed the affidavite that said he personally served me with the Summon lied (there must be a recourse against this person also I hope). I was able to prove that I was not a home the entire day due to working a double shift at work with an electronic printout of my time on that date. If it wasn’t for this SITE, I would have been up a creek without a paddle. The Default Judgement was Vacated and now I am still in the process of winning against this Debt Buyer. I am hanging in there alone, by my fingernails as I am at a border city that has no qualified attorneys in this area, that will do this kind of case. This site IS a “God Send” to folks that are preyed on by these unscrupulous debt buyers.