What should my husband do if he was mistakenly sued?

My husband received a notice to appear regarding a collections procedure. However, he is not the person they want. They have different middle name.

Asked on September 25, 2010 under Bankruptcy Law, Oregon


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Your husband should contact the opposing party's attorney and explain the situation and provide proof of his name such as birth certificate, driver's license, etc. as evidence of the discrepancy regarding his middle name.  Your husband's date of birth would also provide evidence that he is not the person named in the litigation.  Your husband should request that the opposing attorney file a request for dismissal with prejudice naming your husband.  The request for dismissal should be filed with the court and it should be a dismissal with prejudice.  With prejudice means the action cannot be reinstated.  If it is filed without prejudice, it means there is a possibility that the case could be reinstated in the future.

If the opposing attorney does not file the request for dismissal in sufficient time before the hearing, your husband should appear at the hearing and try to correct the matter in court by providing his birth certificate, driver's license, etc. as evidence that he is not the correct person named in the lawsuit.  If the request for dismissal is not filed in time before the hearing and if your husband doesn't appear, it will cause more problems; your husband could then be charged with Failure to Appear and a bench warrant could be issued for his arrest.

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