Service of Process in Summary Proceedings Cases

It has always struck me as a little curious that a tenant in an eviction hearing can get too much notice of the proceeding.

MCR 4.202(C), which deals with landlord tenant cases, provides:

(C) Summons.

(1) The summons must comply with MCR 2.102, except that it must command the defendant to appear for trial in accord with MCL 600.5735(2), unless by local court rule the provisions of MCL 600.5735(4) have been made applicable.

MCL 600.5735(2) and (4) state:

(2) A summons issued under this section shall command the defendant to appear for trial as follows:

(a) Within 30 days of the issuance date of the summons in proceedings under section 5726, in which event the summons shall be served not less than 10 days before the date set for trial.

(b) Within 10 days of the issuance date of the summons in all other proceedings, in which event the summons shall be served not less than 3 days before the date set for trial.

* * * *

(4) Instead of the provisions of subsection (2), a court by local rule may provide for the application of this subsection to summary proceedings commenced in the court, in which event the summons shall command the defendant to appear as follows:

(a) Within 10 days after service of the summons upon the defendant in proceedings under section 5726 [land contract forfeiture cases].

(b) Within 5 days after service of the summons upon the defendant in all other proceedings.


Given the resources of the more remote District Courts, I doubt it would be possible to comply with the requirements of subsection (2) of the statute, which requires the hearing on a landlord tenant case to be held within 10 days of the issuance of a summons. I assume, therefore, that a local rule has been adopted in the most rural District Court pursuant to subsection (4).

In order to comply with the curious requirement in subsection (4) that you not provide a defendant with too much advance notice, the hearing on a landlord tenant case must be held within 5 days after service of the summons. It is very difficult to comply with the five day window for service. First, the window for service often comes a month after the summons is issued. After waiting another month, if the plaintiff fails to obtain personal service within the brief 5 day period, and settles for a mailing and a posting, they have lost the opportunity to include a claim for money damages at the hearing.

There must be some policy rational for the statute’s peculiar notice provisions, but I cannot see it. It appears to establish unnecessary roadblocks to the already lengthy process of regaining possession of property. It is also detrimental to the tenants because they will have less time to find a new place to live, since they only received notice that they were being officially evicted five days before the hearing. Although the tenants have received the notice to quit, this is rarely personally served. I have found that several tenants do not really get the message until they are personally served with a complaint.

Attorney in Small Claims Post Judgment Proceedings

Currently, a creditor has the choice of pursuing a judgment against a debtor by (1) hiring an attorney or (2) trying self-help in small claims court. If the creditor goes with small claims court, he or she is waiving the right to a jury trial and an attorney. Usually, this is the preferred course of action for a creditor with a relatively small amount owed (less than $3,000, the current maximum in small claims). The process leading up to the actual trial is relatively simple: the creditor fills out one form and shows up for a Judge Judy type trial. If the debtor does not show up, a default is entered. The result in either case is a judgment.

As most experienced creditors will recognize, a judgment is not the same as a payment. The creditor still has to "enforce" the judgment through “post-judgment” remedies. Unfortunately, the process for post-judgment remedies is exactly the same for lawyers and non-lawyers and, consequently, the typical lay person has a difficult time collecting the judgment. There is a science to collection of judgments and most lay people are not familiar with it.

In my experience, district courts are terrible when it comes to assisting the small claims litigant--usually limiting their advice to which form to use. The poor success rate for collection of judgments in Michigan is a problem that discredits the judicial system. If a judgment is entered but never collected, what is the point of getting a judgment? The process of “going to court” appears to be a waste of time.

The problem is this: it makes good sense to encourage parties to obtain a judgment in small claims court, but it does not make good sense to forbid them from enlisting an attorney after the trial is over and a judgment is entered. Current Michigan law does not allow an attorney to appear for a small claims litigant at any time, even after a judgment is entered. In re Goehring, 184 Mich App 360 (1990). By forbidding the involvement of attorneys or other experts in the judgment collection, the process of judgment collection is frustrated and the judicial system's credibility is lessened--and for what?

Clearly there is a benefit to removing attorneys and a jury from the process of reaching a judgment. What possible public benefit is there in denying parties the right to counsel for post-judgment proceedings? In fact, there is just the opposite effect. Court staff is burdened with the questions of people who would otherwise be willing to hire a professional. Court staff is asked to provide advice about the sometimes complex post-judgment forms. The parties (whether acting on their own or with the limited input from court staff) often make mistakes on the forms that substantially affect the rights of both parties. What happens if a garnishment form is used? Does the garnishee defendant who had no involvement in the original proceeding waive its right to counsel?

Michigan should change the Small Claims statute to limit the waiver of attorneys for both parties to up until the time the judgment is entered. After a judgment is entered, it should be removed from the Small Claims court jurisdiction.