Is a lawsuit invalid if they get your name wrong?

December 8, 2006 10:12 AM

Lawsuits - if you're being sued, but they have your name or title wrong, does it matter?

I KNOW you're not my lawyer and I KNOW you're not giving me legal advice. I won't sue you, promise.

Hypothetical situation: I am, say, the Treasurer of my homeowners association. I am served papers that indicate that one of the other condo owners is suing me, by name, in my capacity as President of the HOA. Every single time my name is mentioned in the suit, it identifes me as President. Over and over again.

Does the fact that I'm not the President and never have been make any difference in the validity of the suit at all? It seems like, technically, they're suing someone who doesn't exist, right? If they had my name wrong, say, wouldn't that be the case also?

posted by tristeza to law & government (23 comments total)

I'm guessing--IANAL in any way shape or form--that it wouldn't matter. As far as I know (please correct me if I'm wrong, legal types), pretty much every legal question revolves around 'reasonableness'. As in, would a reasonable person reasonably believe that despite the minor error in name or title, that you are who they meant.
posted by dirtynumbangelboy at 10:18 AM on December 8, 2006

Crap - I forgot this part - there IS no President, period. The HOA Board is only a Treasurer and a Secretary.
posted by tristeza at 10:20 AM on December 8, 2006

You'll really need to check the local court rules on this one, and, as always, contact licensed legal counsel. If the plaintiff has a legitimate cause of action against you, and simply misidentifies you as President in the complaint, many courts will likely consider this a "scrivener's error," and such an error may not matter.

On the other hand, if the plaintiff has a cause of action against the President of the association, and has mis-identified you as the President, then you may be in better shape. But given what you've said above, that you are the Treasurer, and the suit names you as the President, I'm not confident that you're off the hook, because I don't know the facts that give rise to the complaint, and I don't know the particulars of the relationship between these facts, the President, and the Treasurer.

In short? The answer is, like many things in the law, it depends. Here it depends upon what the cause of action is, your relationship to that cause of action, and the local rules governing these things. Contact your nearest law library to find the local rules, and contact your local bar association if you need help finding an attorney. Best of luck.
posted by deejay jaydee at 10:21 AM on December 8, 2006

Whoops! Shoulda previewed. Please strike where I wrote "President," and insert "Secretary."
posted by deejay jaydee at 10:22 AM on December 8, 2006

I don't think it will matter.
posted by jerseygirl at 10:23 AM on December 8, 2006

Even if it did invalidate the suit (which seems very unlikely), there's little chance the judge would strike out the case with prejudice, so the person could just fix the errors and sue you again.
posted by grouse at 10:23 AM on December 8, 2006

They'll just amend the complaint. Dismissal with prejudice is a very harsh penalty and it wouldn't be issued for a technicality like this.
posted by GIRLesq at 10:29 AM on December 8, 2006

What the hell is it with HOAs and cranky homeowners? I just volunteered for my HOA board, and I'm getting harassed by one of the homeowners too. He hasn't sued me yet, but I expect it's just a matter of time.

Anyway, if you've been named in a suit and served, particularly in your capacity as an officer of the HOA board, you should immediately contact an attorney. It's possible your HOA has liability insurance that might cover whatever the suit is alleging; you could try contacting your agent to see what you should do. The insurance company may provide counsel for you.

Whatever you do, don't blow off the summons. That rarely ends well.

And, of course, IAAL, but IANYL. Also, I am not admitted in Washington.
posted by spacewrench at 10:29 AM on December 8, 2006

Probably not. Once the other party is apprised of the error, they can just seek leave to amend the complaint and the judge will almost certainly grant it. Then they just correct the error, file it, and proceed to sue you. Sorry.

On preview: What GIRLesq and spacewrench said. Get thee to a lawyer.
posted by AV at 10:31 AM on December 8, 2006

Yeah, I guess I was hoping that because they're suing the President, and there IS no President, it would matter. We'll see. And we have a lawyer who isn't, shall we say, very responsive.
posted by tristeza at 10:39 AM on December 8, 2006

Wait, so I guess I'm confused. Are they suing you, personally, or the HOA?
posted by bshort at 10:48 AM on December 8, 2006

I'm confused too, bshort. It says "blah blah...against JANE DOE in her capacity as PRESIDENT of the HOA blah blah" or "JANE DOE in the function of PRESIDENT".
posted by tristeza at 10:55 AM on December 8, 2006

So . . . if the complaint names "JANE DOE in her capacity as PRESIDENT of the HOA," and consistently refers to "JANE DOE in the function of PRESIDENT," but JANE DOE is merely the Treasurer, then JANE DOE should still lawyer up. The non-existence of a PRESIDENT is likely immaterial here. Checking the HOA's liability coverage is a very good idea, and you should be talking with the Secretary about this right away.

And you can always bug your lawyer. Seriously, and in a pestilential manner, by calling up (albeit quite politely) every couple few hours. Will her secretary think you're a pain? You betcha. Will it get you a response? For sure. In the law, as in many other endeavors, the squeaky wheel is the wheel that gets the grease.

You should also feel free to ask your lawyer directly if he has handled such cases in the past, and if he's confident about handling this case. If she's not sure, or seems doubtful, retain someone else.
posted by deejay jaydee at 11:05 AM on December 8, 2006

Hypothetically, the misidentification of a party could be significant if, because of the mistake, the party never actually became aware of the suit. In that case, the party might be able to rely on the deficiency to argue that he or she should not be defaulted for not responding. However, even then, you wouldn't "win" the case, you'd just be able to avoid "losing" because you didn't respond.

Not hypothetically, the fact that you have actual knowledge of the lawsuit, and know that the plaintiff means you, would be fatal to any defense if you were to blow it off, and try to argue that you should not be defaulted. The law often favors form over substance, but it's not entirely formalistic. Sometimes -- and this is one of them -- the law excuses technical goofs when the goof is entirely unprejudicial.
posted by pardonyou? at 1:01 PM on December 8, 2006

For future reference: if someone is sued in their capacity as a member of the HOA board, do they have to pay their own legal fees or does the HOA have to do that? Is there a common answer to this question?

...because if not, then why would anyone ever under any circumstances serve on an HOA board?
posted by aramaic at 1:49 PM on December 8, 2006

aramaic: It depends on how the HOA is set up. So no, there isn't a common answer to that question.
posted by AV at 2:29 PM on December 8, 2006

aramaic: Even if the HOA bylaws did not expressly cover it, I would demand that it pay for counsel.

The HOA and any other such organization can and should purchase D&O (directors and officers) insurance to cover such risks. The cost is probably not that high.
posted by yclipse at 2:50 PM on December 8, 2006

Here in Mass for a fairly small HOA, we pay $800 a year D/O insurance. Who would be on the board without it? Not me..
posted by Ferrari328 at 2:53 PM on December 8, 2006

PS - our HOA insurance carrier won't pay for any of our defense.
posted by tristeza at 3:18 PM on December 8, 2006

I am sure they will succeed. You are the TOP person for the HOA. How come no President? Is this a legitimate HOA with bylaws covenants, and all that?
posted by JayRwv at 7:38 PM on December 8, 2006

JayRwv - the president quit in a snit several months ago and no one else will step up and volunteer.
posted by tristeza at 12:16 PM on December 9, 2006

Like everyone else said, you need a lawyer. The reason for this is that at the very least you need someone to tell the court that there's no case against you. Otherwise, you, Jane Doe, will get a default judgment against you as president of the HOA, because nobody was there to tell the court that you are not in fact the president of the HOA.

One thing you might think of doing (but shouldn't) is tell the opposing attorney that you're not the president and will they please redraft the summons. It's possible that they will do this. It's also possible that they will come up with some sort of theory as to why you are the de-facto president and present that to the judge. You won't be around, because you're waiting for the new summons, and so they will get a default judgment against you. In the mean time you may have agreed to something apparently innocuous which will hurt your case - perhaps something as minor as "Can we send you the correspondence on the case?" or "Will you authorise payment of this charge?"

Your lawyer will probably read the rules of your HOA very carefully and then write something that denies you are the president, or acted as the president, or can be considered to have been the president, and that the summons would be invalid even if it were directed to you in your private capacity. I think the best outcome you're likely to get (other than the other party dropping the case) is that the HOA gets sued in its own name, leaving you out of it. Then this becomes everyone's problem, not just yours.
posted by Joe in Australia at 6:58 PM on December 9, 2006

>>PS - our HOA insurance carrier won't pay for any of our defense

Why, pray tell?
posted by yclipse at 5:35 AM on December 10, 2006