Working Out Whether a Rhode Island Business Has Missed Its Deadline

Before assuming the worst, do the arithmetic

A common way for one of these problems to arrive at a lawyer's office is with a business already convinced it is too late. The papers sat on a desk. Somebody was away. Three weeks went by and now there seems to be no point.

Sometimes that is right. Often enough it is not, and the reason is that the deadline is not counted the way people count it.

The clock does not start when you read it

CPLR § 320 provides that a defendant appears by serving an answer, by serving a notice of appearance, or by making a motion which has the effect of extending the time to answer — within twenty days after service of the summons, with longer periods in defined circumstances, including particular methods of service.

Two things in that sentence are routinely misread.

"After service of the summons." Service is a legal event with its own rules about how it is accomplished and when it is complete. The day a document came into your hands, or the day somebody in the office mentioned it, is not necessarily that date.

"Longer periods in defined circumstances." The twenty days is a baseline, not a universal. Where service was effected by certain methods, the period is longer — which means the method matters to the calculation before anyone argues about whether it was valid.

Which cuts both ways

This is not an optimism exercise. The computation can go against you as easily as for you.

A business served properly on the first of the month, which only opened the envelope on the fifteenth, has less time remaining than it feels like. A business whose papers were left at a former address and reached it indirectly may have more, or may be arguing about whether service happened at all.

Either way the answer is a finding, not an assumption, and it comes from one document.

The affidavit of service

It is filed in the court and it records who was served, where, on what date, by what method, and in what claimed capacity. That is the whole input to the calculation.

Get it before concluding anything. It is a cheap step with a large range of possible outcomes: it can show the deadline has not passed, that it passed last week, or that service itself is worth examining.

To get it you need the county and the index number, both of which are on the first page of what you were served with — or obtainable from a bank in writing if the news came that way instead.

And if it has passed

Then there is a second question, and it is more important than the first: has judgment been entered?

Those are not the same state of affairs. Being past the appearance period means the plaintiff is entitled to seek a default judgment under CPLR § 3215, where a defendant has failed to appear or plead, with application to the clerk available within one year of the default for a sum certain. It does not mean one exists.

If no judgment has been entered, the position is quite different from one where it has. If it has, CPLR Rule 5015 is the route — the court which rendered a judgment may relieve a party from it on motion on specified grounds, with the excusable-default ground running within one year after service of a copy of the judgment with written notice of its entry.

Three different situations, three different pieces of work. Which one you are in is established from the docket in an afternoon.

What to do first, from Rhode Island

1. Find the county and index number on the papers.
2. Pull the docket and establish whether anything has been entered.
3. Get the affidavit of service and compute the real date.
4. Do not write it off before doing those three. The assumption is the expensive part.

How an MCA lawsuit is defended covers a live case, and a restrained account covers enforcement if a judgment is already there.