4.4Summons and Complaint

A.Complaint

The requirements of a complaint to begin summary proceedings are set out in MCR 4.201(B):

“(B) Complaint.

(1) In General. The complaint must

(a) comply with the general pleading requirements;

(b) have attached to it a copy of any written instrument on which occupancy was or is based;^[1]

(c) have attached to it copies of any notice to quit and any demand for possession (the copies must show when and how they were served);

(d) describe the premises or the defendant’s holding if it is less than the entire premises; and

(e) show the plaintiff’s right to possession and indicate why the defendant’s possession is improper or unauthorized.

(2) Jury Demand. If the plaintiff wants a jury trial, the demand must be made on a form approved by the State Court Administrative Office and filed along with the complaint. The jury trial fee must be paid when the demand is made or within 5 days of being advised of the rights and information under [MCR 4.201(K)(2)(a)], unless payment of fees is waived under MCR 2.002.^[2]

(3) Specific Requirements.

(a) If rent or other money is due and unpaid, the complaint must show

(i) the rental period and rate;

(ii) the amount due and unpaid when the complaint was filed; and

(iii) the date or dates the payments became due.

(b) If the tenancy involves housing operated by or under the rules of a governmental unit, the complaint must contain specific reference to the rules or law establishing the basis for ending the tenancy.^[3]

(c) If the tenancy is of residential premises, the complaint must allege that the lessor or licensor has performed his or her covenants to keep the premises fit for the use intended, in reasonable repair during the term of the lease or license,^[4] and in compliance with applicable state and local health and safety laws, except when the disrepair or violation has been caused by the tenant’s willful or irresponsible conduct or lack of conduct, or the parties to the lease or license have modified those obligations, as provided for by statute. Plaintiff must explain any defects in this allegation, for example local government’s failure to inspect despite a request to do so. The relevant SCAO form must provide space for this explanation. A court may not refuse a filing based on anything in [MCR 4.201(B)(3)(c)].

(d) If possession is claimed for a serious and continuing health hazard or for extensive and continuing physical injury to the premises pursuant to MCL 600.5714(1)(c),^[5] the complaint must

(i) describe the nature and the seriousness or extent of the condition on which the complaint is based, and

(ii) state the period of time for which the property owner has been aware of the condition.^[6]

(e) If possession is sought for trespass pursuant to MCL 600.5714(1)(d),^[7] the complaint must describe, when known by the plaintiff, the conditions under which possession was unlawfully taken or is unlawfully held and allege that no lawful tenancy of the premises has existed between the parties since [the] defendant took possession.”

B.Summons

“The court in which a summary proceeding is commenced shall issue a summons, which may be served on the defendant by any officer or person authorized to serve process of the court. The summons shall command the defendant to appear for trial[.]” MCL 600.5735(1).   

MCR 4.201(C) sets forth special requirements for summonses in summary proceedings cases:

“(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) [(general statutory return dates)], unless by local court rule the provisions of MCL 600.5735(4) [(return dates set by local court rule)] have been made applicable. If a court adopts a local court rule under MCL 600.5735(4), both of the following apply:

(a) Pursuant to [MCR 4.201(G)(1)(b)], the defendant must be allowed to appear and orally answer the complaint on the date and time indicated by the summons.

(b) The court must abide by the remaining requirements of [MCR 4.201].

(2) The summons must state whether or not the action is brought in the county or district in which the premises or any part of the premises is situated.

(3) The summons must also include the following advice to the defendant:

(a) The defendant has the right to employ an attorney to assist in answering the complaint and in preparing defenses.

(b) If the defendant does not have an attorney but does have money to retain one, he or she might locate an attorney through the State Bar of Michigan or a local lawyer referral service.

(c) If the defendant does not have an attorney and cannot pay for legal help, he or she might qualify for assistance through a local legal aid office.

(d) The defendant has a right to a jury trial which will be lost unless it is demanded in accordance with [MCR 4.201(G)(4)]. The jury trial fee must be paid when the demand is made or within 5 days of being advised of the rights and information under [MCR 4.201(K)(2)(a),^[8] unless payment of fees is waived under MCR 2.002.

(e) The defendant has a right to have the case tried in the proper county, district, or court. The case will be transfered to the proper county, district, or court if the defendant moves the court for such transfer.

(f) Written information attached to the summons regarding the local availability of rental and other housing assistance, including all information set forth in [MCR 4.201(K)(2)(a).”

C.Appearance

The time within which a defendant must appear for trial after being served with a summons depends on whether the court has adopted by local court rule the time periods outlined in MCL 600.5735(4). MCL 600.5735(1). If the court has not adopted the time periods in MCL 600.5735(4), the time periods stated in MCL 600.5735(2) apply to a defendant’s appearance for trial after receipt of a summons.⁹ MCL 600.5735(1). See also MCR 4.201(C)(1).

Ordinarily, the day of service—the day from which the time is to be computed—is not included in the computation, but the last day of the time period is included:

“The day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period is included, unless it is a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order; in that event the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order.^” MCR 1.108(1). See also MCL 8.6.

1.General Statutory Return Dates

MCL 600.5735(2) states:

“A summons issued under [MCL 600.5735] shall command the defendant to appear for trial as follows:

(a) Within 30 days of the issuance date of the summons in proceedings under [MCL 600.5726 (land contracts)], 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.”

The general statutory requirements for service require service “not less than 3 days [(cases not involving land contracts)] [or 10 days (cases involving land contracts)] before the date set for trial.” (Emphasis added). MCL 600.5735(2). The statutory language clearly indicates that the date on which trial is to begin does not count in the computation. This conclusion was summarized in Chaddock v Barry, 93 Mich 542, 543 (1892):

“[I]n determining the time within which process or notice must be served, the language of the statute must be observed; and where an act is to be done a certain number of days before a day stated, then that day is excluded in the computation[.]” (Emphasis added.)

See also Ehinger v Graham, 190 Mich 132, 139 (1916); First Bank of Cadillac v Benson, 81 Mich App 550, 554 (1978).

2.Return Dates Adopted By Local Court Rule

In courts following the alternative method of beginning summary proceedings (authorized by local court rule pursuant to MCL 600.5735(4)), the defendant must appear and answer as follows:

“(a) Within 10 days after service of the summons upon the defendant in proceedings under [MCL 600.5726 [(land contracts)].

(b) Within 5 days after service of the summons upon the defendant in all other proceedings.” MCL 600.5735(4).¹⁰

Note that “all local court rules created pursuant to MCL 600.5735(4), that in their implementation require a written answer, are temporarily suspended.” Administrative Order No. 2020-17.¹¹

D.Manner of Service

“Service-of-process rules are intended to satisfy the due process requirement that a defendant be informed of the pendency of an action by the best means available, by methods reasonably calculated to give a defendant actual notice of the proceeding and an opportunity to be heard and to present objections or defenses.” Hill v Frawley, 155 Mich App 611, 613 (1986). See also MCR 2.105(K)(1).

Service of the summons and complaint must be made on the defendant by two methods. First, mailing is a required component of service in all summary proceedings; mailing is not an alternative to physical delivery of the summons and complaint. MCR 4.201(D). A second method of service is also required in summary proceedings. This second service may be made in one of three ways: by a method of service described in MCR 2.105, by delivery to a member of the defendant’s household, or by tacked service. MCR 4.201(D)(1)-(3). In its entirety, MCR 4.201(D) states:

“(D) Service of Process. A copy of the summons and complaint and all attachments must be served on the defendant by mail. Unless the court does the mailing and keeps a record, the plaintiff must perfect the mail service by attaching a postal receipt to the proof of service. A plaintiff may also request the court mail a second copy of the summons and complaint and all attachments to the defendant in a court envelope – the same envelope as used for other court business which is clearly identified as coming from the court. This court mailing must be delivered to the US Post Office at least 7 days before the date of trial, and a record must be kept. The court may charge an additional fee as determined and published by the State Court Administrative Office. In addition to mailing, the defendant must be served in one of the following ways:

(1) By a method provided in MCR 2.105;^[12]

(2) By delivering the documents at the premises to a member of the defendant’s household who is

(a) of suitable age,

(b) informed of the contents, and

(c) asked to deliver the documents to the defendant; or

(3) After diligent attempts at personal service have been made, by securely attaching the documents to the main entrance of the tenant’s dwelling unit. A return of service made under this subrule must list the attempts at personal service. Service under this subrule is effective only if a return of service is filed showing that, after diligent attempts, personal service could not be made. An officer who files proof that service was made under this (D)(3) is entitled to the regular personal service fee.”

See Greene v Lindsey, 456 US 444 (1982), for a discussion of tacking and due process. In Greene, 456 US at 453, the United States Supreme Court held that depending on the circumstances, “merely posting notice on an apartment door [may] not satisfy minimum standards of due process.”

The court may, in advance, permit the plaintiff to make service in a way not otherwise provided under MCR 2.105.¹³ MCR 2.105(J). According to MCR 2.105(J)(1), “[o]n a showing that service of process cannot reasonably be made as provided by [MCR 2.105], the court may by order permit service of process to be made in any other manner reasonably calculated to give the defendant actual notice of the proceedings and an opportunity to be heard.” MCR 2.105(J)(1) prohibits a party from effecting a means of service not otherwise authorized by rule “before entry of the court’s order permitting it.” MCR 2.105(J)(3).

“An action shall not be dismissed for improper service of process unless the service failed to inform the defendant of the action within the time provided in these rules for service.” MCR 2.105(K)(3). “As long as the means are ‘reasonably calculated’ to reach the defendant, the requirement of actual notice is satisfied and service will be sustained.” Krueger v Williams, 410 Mich 144, 159 (1981). Dismissal is appropriate, however, when there is “a complete failure of service of process.” Holliday v Townley, 189 Mich App 424, 425-426 (1991).

Service for Money Claims. Disposition of a claim for a money judgment requires that the defendant be served as permitted by MCR 2.105 unless the defendant appears and answers the complaint. MCR 4.201(H)(1)(b). Substituted service or tacking is not sufficient to pursue a claim for money. See id.

If service of process under MCR 2.105 is not made on the defendant for a money claim, the money claim must be dismissed without prejudice or adjourned until service is complete, unless the defendant appears or files an answer to the complaint. MCR 4.201(H)(1)(b)(i).

E.Fees and Costs

The filing fee for a complaint for the possession of premises is $45. MCL 600.5756(1). When a claim for a money judgment is joined with a complaint for possession, the plaintiff must pay a supplemental fee equal to the regular filing fee for a money judgment in the same court. MCL 600.5756(2). See MCL 600.8371 for filing fee amounts applicable in district court. Beginning March 1, 2016, the plaintiff must also pay an electronic filing system fee of $10 for civil actions filed in the district court, including actions filed for summary proceedings. MCL 600.1986(1)(b). However, the fee may be more or less depending on the type of claim. An electronic filing system fee of $20 is required for civil actions filed in district court if a claim for money damages is joined with a claim for relief other than money damages; a similar fee of $5 is required for civil actions filed in the small claims division of district court. MCL 600.1986(1)(c); MCL 600.1986(1)(d).¹⁴ Generally, the electronic filing system fee authorized under MCL 600.1986 is the only fee that may be charged to or collected in a civil action specifically for electronic filing. MCL 600.1987(1).¹⁵ “An electronic filing system fee paid by a party is a recoverable taxable cost.” MCL 600.1990. If the plaintiff wants a jury trial, he or she must make a jury demand on a form approved by the State Court Administrative Office at the time of filing the complaint and must pay a jury fee of $50.¹⁶ MCL 600.8371(9); MCR 4.201(B)(2).

All fees¹⁷ must be waived for an individual that “shows that he or she is receiving any form of means-tested public assistance[.]”¹⁸ MCR 2.002(C). See also MCL 600.8371(6). However, fee waivers are not available to public or private organizations under MCR 2.002 “unless an applicable statute provides that no fee(s) shall be required.” MCR 2.002(A)(1).

All fees must also be waived for an individual that “shows that he or she is unable because of indigence to pay fees[.]” MCR 2.002(F). Additionally, fees must be waived “[i]f a party is represented by a legal services program that is a grantee of the federal Legal Services Corporation or the Michigan State Bar Foundation, or by a law school clinic that provides services on the basis of indigence[.]” MCR 2.002(D). The court, on its own initiative, may order waived fees to be paid “when, upon a finding of fact, the court determines the reason for the waiver no longer exists.” MCR 2.002(J).

“Notwithstanding any other provision of [MCR 2.002], courts must enable a litigant who seeks a fee waiver to do so by an entirely electronic process.” MCR 2.002(L).

See the Michigan Judicial Institute’s Civil Proceedings Benchbook, Chapter 1, for more information on waiver of fees under MCR 2.002.