How to Respond to a Complaint
When you receive the complaint, you will also receive a summons which will direct you as to the next step which you need to take to avoid a default judgment.
1. Debt and Trespass Actions—You must file an answer
If the action is a debt or trespass action, the summons will direct you to complete and return an answer (the answer is J.P. Civ. Form 7 which is enclosed with the complaint and summons) within 15 days of your receipt of the summons. In the answer (J.P. Civ. Form 7) you must check one of the following three choices:
You admit that you owe the debt or claim and do not want a trial. If you check this, you are agreeing to the Court entering a judgment against you for the amount claimed plus interest and costs. After the Court receives your answer, the Court will send you a judgment which states the amount which you owe. Any money owed should be paid directly to the plaintiff, not to the Court.
If you pay the plaintiff the amount claimed, you should be aware that the plaintiff is required to notify the Court within 90 days that the judgment has been satisfied. If the plaintiff does not do so, you may ask the Court for an award of up to one-half the amount of the judgment. 10 Del. C. Â§ 9567.
- You indicate that you want a trial.
- In a debt action only, you may also indicate that you want the plaintiff to provide you with a more detailed statement of the claim (this is called a Bill of Particulars). The demand shall be filed in the Justice of the Peace Court from which the complaint was served.
2. Replevin and Summary Possession Actions
A time and date for trial will be set and no answer is required to be sent to the Court prior to the trial. However in a summary possession action only, you may demand a jury trial by notifying the court in writing within 10 days of being served.
FOR ALL TYPES OF ACTIONS, REMEMBER:
- You must appear at the time and date set for trial or a default judgment may be entered against you.
- You may file a counterclaim if you believe that the Plaintiff owes you money. In some cases, you must file any claim you have against the Plaintiff as a counterclaim or lose it.
- You may file a third party action against a party other than the Plaintiff who may be liable for all or part of the damages that the Plaintiff seeks.
Bill of Particulars
A bill of particulars is used only in debt actions and is intended to provide the defendant with more information as to the plaintiff's claim. A plaintiff is not required to file a bill of particulars unless one is demanded by the defendant in accordance with Justice of the Peace Court Civil Rule 26.
J.P. Civil Form 10C should be used to demand the Bill of Particulars. The demand should contain the current mailing address of the Defendant, if different from the address provided in the complaint. The Defendant should file the demand for Bill of Particulars with the Court in which the case is pending. The Court will then serve the Plaintiff with the Notice of Demand for Bill of Particulars.
Upon receiving the demand, the Plaintiff should serve the Bill of Particulars within 15 days counting the date of mailing as the first day. Plaintiff may use the available Bill of Particulars form (CF10BP). The Bill of Particulars is served by the Plaintiff by:
- mailing the original to the Court where the action is pending, along with a notarized statement as to how the Bill of Particulars was served on the Defendant. The Certificate of Service form (MISC27C) is available. If the plaintiff is a corporation, the affidavit must be signed by an officer of the corporation. If the plaintiff is a partnership, the affidavit must be signed by a partner; AND
- mailing a copy to the Defendant or the Defendant's attorney of record.
The bill of particulars must be in writing and should state with particularity the basis for the plaintiff's claim and the manner in which the sum demanded was determined.
If the Plaintiff fails to comply with the demand, the Defendant may move for an order compelling compliance. A motion to compel shall be filed with the Court within 5 days after the time for serving the Bill of Particulars has elapsed.
See Justice of the Peace Court Civil Rule 26 for more information on Bills of Particular.
A counterclaim is a claim made by the Defendant against the Plaintiff when the Defendant believes that the Plaintiff owes him or her money.
In most instances, a counterclaim must be filed at least 5 days prior to trial (excluding holidays and weekends).
You must state in writing and in detail why you are countersuing the Plaintiff. You may use Civil Form CF01CC titled Counter/Cross Claim. The written statement or form CF01CC must be filed with the Court and a copy should be delivered or mailed to the Plaintiff. With the Court's copy, you must file a notarized affidavit stating how and when you served the Plaintiff's copy. You must include the total amount of the counterclaim and how you arrived at this figure.
Under certain circumstances, if the Plaintiff has not had enough time to prepare his or her defense to a counterclaim, the Court, upon the request of the Plaintiff, may grant a 15 day continuance of the trial.
If your counterclaim arises out of the transaction or occurrence which is the subject of the Plaintiff's claim against you and your counterclaim does not exceed $25,000, in most cases, you MUST file your claim as a counterclaim and you will not be permitted to file it in a separate action.
If your counterclaim exceeds $25,000 or does not arise out of the same transaction or occurrence which is the subject of the Plaintiff's claim against you, you will not lose your right to sue by failing to raise your claim as a counterclaim in the present action. However, if you are the Defendant in a summary possession action, any counterclaim which you did not raise because it was for an amount over $15,000 may not be raised unless brought in the proper court within 60 days of the summary possession judgment in the Justice of the Peace Court.
If your counterclaim exceeds $25,000, you may bring it as a counterclaim in the Justice of the Peace Court if you are willing to limit any judgment to $25,000.
For more information on counterclaims see Justice of the Peace Court Civil Rule 13.
Third Party Claims
A third party action is filed by the Defendant against a party other than the Plaintiff who may be liable for all or part of the damages that the Plaintiff may win from the Defendant Generally, a third party action must be filed at least 5 days (excluding holidays and weekends) prior to trial along with a filing fee.
For more information on third party claims see Justice of the Peace Court Civil Rule 14.