Can I ask the court to dismiss a summons due to improper service and incompleteness?
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Can I ask the court to dismiss a summons due to improper service and incompleteness?
Landlord did not include written contract or lease (as required) because there was never any made. Landlord also left 3 day notice outside. Landlord states that he hand delivered it to me but I have not had any contact whatsoever with this person. In fact, I was 250 miles away from stated property on date specified. Notice was left outside. I and another found it weather damaged. Additionally, this notice had no amount ordates; only my name and his name. Totally incomplete.
Asked on July 13, 2010 under Real Estate Law, Florida
Answers:
M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney
Answered 13 years ago | Contributor
Landlord Tenant issues are generally won on "technicalities" in the first instance when a landlord fails to understand and comply with the strict dictates of the law in this area. You seem to understand the issues involved and have done enough research to know that the case could indeed be dismissed for the landlord's failure to comply with the strict letter of the law. So give it a shot. But your state law may require that you "Answer" the complaint and raise the issues as "Affirmative Defenses" so that they are not lost to you. Go down to the Court. Often the clerks will help a pro se defendant fill out the paperwork. Make sure that you raise each and every issue and ask that the case be dismissed. But I do have to say: sometimes having an attorney on these matters can be helpful. Good luck.
B. B., Member, New Jersey Bar / FreeAdvice Contributing Attorney
Answered 13 years ago | Contributor
I think that there is a very good chance that you can have the case dismissed. Evictions are very much "disfavored" by the courts, which means that the landlord has to follow the law exactly, or lose. If the amount due is supposed to be in the notice, or relevant dates, and the information is missing, the notice is "deficient." For almost every landlord-tenant purpose, if it's the landlord's notice and it's deficient in more than just form, if required information is missing, it's as if the notice wasn't given. That, in turn, would mean that the case would be dismissed and the landlord would have to start over again.
It is very important that you show up on the court date, to make this argument. The court won't do it for you, at least not always.
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