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LegalKnowledge, Attorney
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I was sued in small claims court but I was never served. I

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I was sued in small claims court but I was never served. I miss the hearing and a judgement was awarded to the plantiff. Once I found out, I petitioned for a motion to set aside judgement and it was granted. Now I have 20 days to file my response to the complaint. How do I do that? Do I file a motion to dismiss? I am in the right in this case, can I counter sue them? If so how?

You could file a motion to dismiss based upon improper service. The burden would be on the plaintiff, to show you were served. If they cant do this, the case will be dismissed without prejudice and they will have to properly serve you. Once properly served, you need to file an answer to the complaint and admit or deny the allegations. Moreover, any defenses you have can be raised and if you have a valid cause of action, it can be asserted at that time.

Customer: replied 7 years ago.
What motion do I file to end the case in my favor? Motion to dismiss? How do answer the complaint to "deny" or fight the suit?
You would file a motion to dismiss based on improper service. However, they could just refile it, unless it was dismissed WITH prejudice. If you answer the complaint, you will have waived your motion to dismiss for improper service, so you may want to file that motion first and then see what action the court takes.
Customer: replied 7 years ago.
If I file a motion to dismiss on improper service the case will not be over. Can I just file to dismiss with out a caveat? I would rather fight it than have it come back again later. How do I respond to fight it if I can't file a motion to dismiss without a caveat?
You can file a motion and have it dismissed WITH prejudice. If it is done this way, it can not be refiled. If you want to fight it, read the complaint that is served upon you and file an answer to the allegations. Also, raise any defenses you may have.
Customer: replied 7 years ago.
To answer the allegations and raise the defense, how do I state that properly? What vebiage should it contain?

Respond to the complaint in the same manner that it was presented to you. It should be numbered 1, 2, 3, 4 etc, so you need to answer each allegations. As far as defenses, you need to read the rules of civil procedures and Florida Statutes to find what applies to the facts of your case and incorporate it as well. Try going to the law library at your local courthouse, as they normally have forms and books that can help you get an idea of what it needs to look like.


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