If you have been sued and served with a complaint, which is completely fraudulent, Florida Judges have the authority, under Florida Rule of Civil Procedure 1.150, to strike, the complaint right from the beginning. A sham pleading is a complaint, petition, etc. that appears to be in a proper format, but in actuality is false, and which is not pleaded or brought in good faith. Specifically, a Florida court in a 1934 case, Rhea v. Hackney, defined a sham pleading as being "palpably or inherently false, and from the plain or conceded facts in the case, must have been known to the party interposing it to be untrue."
For example, if you have been served with a complaint (pleading) by a sore ex business associate, which states he is the owner of your vehicle, which you did some business in with the person suing you, and you can show that you are the rightful owner and your ex business associate is falsely alleging that the vehicle is his, a Florida court should strike the complaint.
For a pleading to be a "sham" pleading, the person or entity filing the pleading must have filed it "without color of fact." It is a sham when it is inherently, or completely false, and when considering conceded facts, must have been known by the person or entity filing it to be completely untrue. If it is clearly established that perjured testimony has been given, a Florida court may cite the person for contempt and possibly sent to Florida's State Attorney's Office for investigation. The court will also strike the pleading, or sworn testimony, which has been clearly, and indisputably, proven to the court to be a sham pleading.
If you have been served with a complaint, which you believe to be inherently untrue, you should speak with an attorney before the time you have to respond to the complaint. Do not just sit back and do nothing. Otherwise, you run the risk of the court entering a default against you based on a complaint, which contains inherently false information. Oftentimes,defendants in small claims courts cannot afford to hire an attorney. If this is the case, you can file a motion to strike a pleading as a sham. You will need to prepare a statement of the facts and have it notarized by a notary. After you file the motion to strike a sham pleading, the judge is required to set a hearing on your motion. Here, the judge will hear from both parties and review all the evidence. If, for example, if the issue is ownership of a car, you should write out the facts that support that the car is indeed yours in your affidavit and and include a bill of sale showing that the car was purchased by you, and a valid title and registration showing that the car is indeed your car and registered as your car.
A judge will strike the pleading as a sham pleading only if the pertinent facts are not disputed by the plaintiff and defendant, and only if the pleading or complaint is not supported by the facts. If the complaint filed against you is supported by even some amount of evidence, then the judge cannot strike the complaint as a sham.
Remember, that if you have been served with a complaint, whether or not you believe it is based on false information, you should immediately speak with an attorney.
Disclaimer: This article is for general information only and should not be construed as formal legal advice nor the formation of a lawyer/client relationship. If you have been served with a complaint, you should always speak with an attorney right away. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. This web site is designed for general information only. The information presented at this site or the submission of any form or email should not be construed to be formal legal advice or the formation of a lawyer/client relationship.
Timothy C. Nies leads the firm’s personal injury, maritime injury, civil litigation, and commercial litigation practice groups. He has spent the past 10 years, first defending well-funded insurance companies and large corporations in complex personal injury cases. If you you are looking for a West Palm Beach Litigation Lawyers, the West Palm Beach Trial Lawyers at Van Riper & Nies Attorneys, P.A. are ready to fight for you today!
