Archive for the ‘Service’ Category

Ignoring a Debt Collection Lawsuit That Was Not Personally Delivered

Tuesday, September 10th, 2013

Question: Is it possible a debt collection company can sue the debtor on an unpaid credit card if they have moved to a new address? I have not received the lawsuit papers personally, but I learned from the California Superior court’s online case summary that a debt collection lawsuit has been filed and it states they served me. Can’t I ignore this?

My response:

Yes, the debt collection company can sue for an unpaid debt, even after the debtor moved to a new address, but the lawsuit must be filed in the proper court. In particular, the lawsuit can be filed where the defendant lives when the lawsuit was filed or where the defendant lived when they first entered into the agreement for the credit card.

After that, the debt collection lawsuit must be served in one of the ways permitted by the California Code of Civil Procedure. I explain in other blog postings the two main ways that a defendant can be served in Superior Court on a lawsuit: personal service and substitute service. Substitute service requires a reasonable number of attempts (typically, at least three) at the defendant’s residence or place of business. In your situation, did they try to serve you at your new address or where you work or do business a reasonable number of times? Do they know your new address or did you give that to them at any time?

As the videos on my home page explain, ignoring a debt collection lawsuit is one option of several. I’d recommend exploring carefully each of your options and then call a debt collection DEFENSE attorney (which is what I do) to narrow what options are most appropriate for you and your situation. Putting off dealing with a lawsuit is not suitable for most people, in my opinion.

The way I would compare a defendant’s putting off dealing with a debt collection lawsuit and letting it become a default judgment is that it is similar to not going to the doctor for treatment and anti-biotics of an infected wound. How long before the untreated, festering wound gets worse? How long before the infection spreads and can harm other body parts or even cause the patient to become seriously sick all over?

An unpaid default judgment can be difficult to set aside and is subject to the review by a judge, if after the proper motion is filed. A judge might conclude that the defendant was aware of the judgment and failed to promptly file a response when aware of the lawsuit or promptly file to set aside a default judgment. Thus, an older default judgment becomes almost impossible to set aside and it not only grows with interest at 10 percent per year, but other costs can be added, possibly attorney’s fees. A judgment also impacts, for most people, their personal credit scores for many, many years, making it hard to qualify for credit, property, and sometimes insurance and a job.
Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler
Facebook: www.facebook.com/SoCalConsumerLawyer

I was just served with a credit card collection lawsuit. Now what?

Monday, March 4th, 2013

Question: I stopped paying on my credit card a while back, because I was tired of paying a high interest rate and I did not have enough money to pay it all off. I sort of suspected that this debt would be sold to a debt collection agency for pennies on the dollar, but the papers are asking for me to pay the full balance, plus the high interest rate that I thought I was going to avoid. I contacted the company and they are holding firm on that number. I don’t have the money for this and my income is too high to qualify for a Chapter 7 bankruptcy.

My response:
First, please check out the short videos on my home page. The first video is a quick overview of all options that are possible to the situation of being served with a debt collection lawsuit. That will help you narrow down your options to the one or two that suit your situation and your own preferences. Your posting did not specify what bank had the original credit card or when you last paid it, which will help determine if they filed the lawsuit after the statute of limitations period had expired. That is very important in these cases and makes a big difference.

I’d then suggest reading my blog posting on the defendant’s Next Steps when the consumer has been sued in a debt collection lawsuit on a defaulted credit card. That blog explains how much time is appropriate to avoid a default judgment, as some people confuse a hearing date with the due date for a proper, written response. If you want to defend this lawsuit and have a good chance to settle for much less or possibly get the case dismissed, do not miss the deadline for filing a response or having a lawyer do this for you. It is usually 30 days from the date of being personally served, but please don’t wait for the last minute.

I don’t suggest that consumers or non-litigation attorneys try to handle the lawsuit defense for themselves, as I have seen too many people either pay way more than they should to settle with the debt collection law firm or they file papers with the court, which get stricken as being defective or improperly admit most or all of the debt collection lawsuit. Almost as bad, is when the debt collection lawyers press the case very hard against the defendant, using court procedures and formal discovery requests to overcome the defendant’s attempt to get the case to trial. I have some of these as PDFs on my website, in the Case Examples tab.

To avoid the risk of losing a money judgment for the full balance in the lawsuit plus accrued interest, I urge you to contact an experienced consumer attorney, who regularly handles debt collection lawsuit defense. An experienced attorney should be able to help negotiate a satisfactory settlement or get the case dismissed, depending on the admissible evidence that the debt collection law firm can obtain or not obtain.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

Facebook: www.facebook.com/SoCalConsumerLawyer

Asset Acceptance Did Not Serve Its Debt Collection Lawsuit, Monitoring Online

Friday, October 12th, 2012

Question: Per your fabulous on-line instructions – I looked on-line to find out about a lawsuit against me.  I noticed that Asset Acceptance, LLC filed a collection lawsuit against me to collect a older debt.  Unfortunately, they have not served me. What do you suggest I do? This is in California Superior Court and there is a hearing set in a couple of months. I was thinking of going to the hearing to see what they say.

My response:
First, it is not “unfortunate” that you were not served.  It is actually good news, as your time to respond to a lawsuit does not begin, until you (the defendant) have been served.  See link to my blog on deadlines to respond to a collection lawsuit. Thus, there is due date for you, until you have been served.

Second, I would not do anything. Fly below the radar and wait to see if you are ever served. It that occurs, marke that date on your calendar, so that you know exactly when your response will be due in court.  Until then, let’s just see what progresses and I certainly would not advise you to just show up in court, when you have not filed a formal response in the case.

Third, to be safe, every couple of weeks, I would visit the Court’s web site for this collection case for any activity, such as the filing of a proof of service. If that occurs, then you need to take action, even if no one has really come to serve you, because that is a formal representation to the court (though false) stating that the process server had served the summons and complaint.  Stay on top of this, because many times the process server states under oath that the defendant was served, when that never took place.  A default judgment may be entered after that, unless you take proper action.

Update:
Congratulations.  I checked online with the Superior Court’s web site. A recent entry shows that Asset Acceptance has dismissed its case against you without prejudice. They never served you, but for whatever reason, they dismissed their collection case.  It is unlikely that they will refile the case, now that they have decided to dismiss.  Thus, in my opinion you have dodged a bullet.

Once again, this proves that staying below radar, such as with my “Don’t Pay a Dime Strategy,” sometimes works and can save thousands of dollars and avoid bankruptcy. Had you been served, you would have contacted me, no doubt. I really appreciate your kind words.

Robert Stempler
www.StopCollectionLawsuits.com

Twitter @RStempler

They did not say, “You’ve been served,” so can I just ignore the Summons Form SUM-100?

Friday, September 21st, 2012

Question: The Summons (Citation Judicial), Form SUM-100, that came with the lawsuit for an unpaid credit card debt has a handwritten date to the left of the Clerk’s signature line.  The summons does not have a date at the bottom, where it says “Notice to Person Served.”  Box 1 is checked for individual defendant.  Someone handed it to me a week ago, but they did not say anything, such as “You’ve been served!” I just received a letter from the attorney firm that says I should call them to settle, because I was served.  Can I just ignore this, until they come back? If I must respond to it, when does my 30 days expire?

My response:
The date on the summons next to the clerk’s signature is the date the summons was endorsed by the Clerk of the Court, typically the same date as the collection complaint was filed. Thus, the summons date should match the complaint filing date.  It would be pretty rare for a lawsuit to be served on a defendant the same day that it is filed with the clerk. Thus, the filing date is usually not used to calculate the due date of the defendant’s response in court.

The date when you (the defendant) must file a response in court is determined by the date and method of delivery to you of the lawsuit papers.  For instance, if the defendant was personally served (meaning the summons and complaint were handed personally to the defendant), then he or she has 30 days from that date to file a written response in court.  If not personally served, but a method known as substitute service was used, then the due date is 40 days from the mailing date, which is why I recommend people save even the envelope, to keep the postmark date on the envelope.

In California, the process server need not say anything if the defendant is being personally served.  The movies about someone saying, “You’ve been served,” either reflect laws of other states or are entertaining in their drama.  Only where the person is not the defendant, should the process server explain that they are being given the legal papers for a lawsuit for the defendant and those papers should be given to the defendant right away.  Problems arise, such as a default judgment, when the recipient receives the papers, but fails to promptly give them to the defendant.

I have on the home page of my web site, a video of understanding your options to consider, before filing a DIY response yourself, against these professional debt collection lawyers.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

How long to file papers in court, after receiving the summons and complaint via U.S. Mail?

Thursday, September 13th, 2012

Question: No process server ever approached me, but gave the summons and debt collection complaint to my wife.  A few days later, another copy arrived in the mail. I still have the envelope with the postmark. Do I still need to respond within 30 days and from when?

My response:
Under the California Code of Civil Procedure, which governs in Superior Court cases, the defendant must file their response in court not later than 30 calendar days from the date of personal service, which occurs when the server hands the summons and collection complaint personally to the defendant.

Substitute Service occurs after satisfying due diligence in trying several times to perform personal service on the defendant.  After due diligence, the process server hands the summons and collection complaint to an adult member of the defendant’s household or the person who appears to be in charge at the defendant’s place of business, then mails another copy of the summons and collection complaint to the defendant at that same address.

In this case, the process server has performed Substitute Service on you, which adds 10 calendar days, making a total of 40 days from the date of mailing for the defendant to file his or her response in court.

Some defendants receive only a copy of the summons and collection complaint by U.S. Mail and no one at their home or place of business advised them that they were served.  In those cases, you should still go on the premise that you have only 40 calendar days from the mailing date in which to file a response in court, to prevent a default judgment from being entered. Please see other blog postings about default judgments.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

Should I hide from the process server or refuse to sign for the lawsuit papers?

Sunday, September 9th, 2012

Question: I found out that a process server is trying to find me to hand me lawsuit papers. If I hide and stay away from home, so that he cannot serve me, will they eventually dismiss the lawsuit? What if I refuse to sign for it?

My Response:
That’s not how service of process works.  After the debt collection lawsuit has been filed, the court will set a return date by which the proof of service (“POS”) must be filed. The POS states that the process server handed to the defendant a copy of the summons, complaint, and any other documents, including the date, time, and location where this occurred.  It does not require that the defendant sign for the papers, nor does it require any other proof, such as video or a photo.

If the process server goes to the defendant’s home, but was unable to serve the defendant there, he or she can hand it to anyone age 18 years or older at the residence, then mail an extra copy to the residence. The POS that is filed with the court must state the name of the person served and each of the previous attempts to serve the defendant at home, and state the date on which the documents were mailed to the residence.  This is known as substitute service (aka “sub-service’), and it is a valid manner of serving a credit card collection lawsuit in California.

If a POS cannot be filed due to the process server being unable to locate defendants, either their residence or where they work, the plaintiff’s collection attorney will often ask for more time, because their process server has been trying to serve the defendants, who are evading service or not yet located.  If the process server has performed the proper steps and still unable to find the individual defendants to serve them, the court can allowed service by publication in a newspaper of general circulation.

Thus, hiding or evading a process server rarely results in the case being dismissed, due to lack of service.  Beware that sometimes the process server files a POS saying that they served the defendant, even that was not so, which can result in a default judgment being entered when the defendant did not know.  Please see my blog on no service but a default judgment was requested.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

Never Served, but Now Something Came by Mail, a Request for Entry of Default Judgment

Saturday, August 18th, 2012

Question:
What does it mean when the collection lawyers sent me a Request for Entry of Default Judgment? The only thing that I received from this law firm before now were a couple of letters, which I did not call back, because I didn’t have money to settle.  The papers show they have filed a lawsuit in the courthouse near me, which the online case summary shows they claim they served the summons and complaint by mail on me a couple of months ago. I thought that the law requires personal service of lawsuits, something called “due process”?

My response:
You are correct, there is a Constitutional principle known as Due Process, which requires that a defendant be given notice of a pending lawsuit, preferably by personal service on the defendant. However, California civil procedure permits alternative forms of service, if the process server declares that they tried several times to serve you personally at home or at work, but you were never present.  This is known as due diligence.  After due diligence, they can hand the summons and complaint to someone who is an adult at the defendant’s house or apparently in charge at your workplace and then mail a copy to you at that address.  This is known a substitute service.

If you have been substitute served, rather than the usual 30 days to respond in writing to the lawsuit, California civil procedure adds 10 days from the date of mailing, giving you or your defense attorney a total of 40 days from date of mailing to file in court your response.  One point about substitute service: it must be delivered to someone at your residence or work address, or it is invalid and can be challenged, but act promptly and consult with experienced counsel on that, as there is no standard DIY form to set aside a default judgment.

Now that a couple of months have passed since the process server said he or she substitute served you, the debt collection lawyers have sent you a copy of the Request for Entry of Default, which they have also probably sent to the Clerk of the Court to be filed.  If the Clerk files it, then it becomes an enforceable judgment against you, unless you set aside the default judgment, satisfy the default judgment by paying money to settle in full with the plaintiff, or file bankruptcy to have it discharged.

A California judgment must be renewed every 10 years, or it expires, but many collection agencies keep track of judgment expiration dates and renew it until satisfied in full or discharged in bankruptcy.  Thus, I would suggest you deal with it now, if possible, as it can remain out there forever and pop up and be very annoying and vexing at the most inconvenient times.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

I was not properly served, so can I file something to dismiss the case?

Tuesday, June 5th, 2012

Question: I did not pay one of my credit cards, because it was too much for me.  Now, I received in the mail a summons and complaint for that credit card debt.  No one in my home knows anything about this, so I don’t believe that this is proper substitute service. Can I file something in Superior Court about not being served? Can I get the case dismissed or put off a long time?

My response:
Whenever the defendant located within California has not been properly served with the lawsuit, in addition to their six options that I explained in the first video on my home page, the person could file a motion to quash.  There is no check-the-box form for this motion in California Superior Court.  Motions to quash are unusual.  People should either file a response to the debt collection lawsuit or exercise one of their other options, such as settling the case.

If the defendant or his/her attorney files a motion to quash and properly presents the Superior Court with the lack of valid service, the result is often the same: the court can grant the motion to quash and some time later, the lawsuit is served properly on the defendant, who then has the given number of days to file a response in the case.  The Judge could also ask the attorney or defendant in court at the hearing: “When do you want to file a response to this lawsuit?”  In other words, you’ve won the battle, but lost the war, since a response to the complaint must still be filed and the case will proceed about the same, as if service has now been properly effected.

The motion to quash is really only an effective means of stopping a lawsuit if the case was filed against an out of state defendant, who has no contacts in California, which would mean the California Superior Court lacks jurisdiction for such lawsuit. Then the motion to quash would have a substantial effect on the outcome of the case.  For this reason, a motion to quash should be reserved for cases where the defendant is out of state, with no connections to California.

Thus, when people post on Avvo.com or ask elsewhere about not being properly served, I typically refer them to my blog posting on making their next steps count.  Defendants should respect the normal time to respond in court to the lawsuit as about the same, if they wish to avoid a default judgment and preserve all of their six options, noted in my first video.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

Wrong Person Served: A Case of Mistaken Identity

Thursday, February 3rd, 2011

Question:
Someone handed me a summons and complaint for a credit card lawsuit with my name on it.  I did not have any credit card with this lender. What should I do?  How do I know if I am the victim of identity theft?  If this is someone else’s debt, can I ignore the lawsuit?  I don’t want to pay the court’s filing fees or hire an attorney, if possible.

My Response:
Credit card lawsuits are serious business and without a proper response filed in court, the debt collection attorney will request that a default judgment be entered against the defendants who are served but fail to respond.  If the summons and complaint are in your name, then the judgment will also be in your name.  Thus, the debt collection lawyer may apply the judgment as a lien on your real property, a levy on your bank and investment accounts, a garnishment against your wages, and other enforcement attempts.

The fact that this is not your debt is something that you can present to the court only if you or your debt collection defense attorney file a response in court before the deadline expires. See my blog posting on this deadline:   http://www.stopthecase.com/blog/?p=81 Otherwise, a default judgment may then be entered, which terminates the defendant’s right to oppose the judgment, without considerable extra paperwork and expense.  You may end up having your personal funds used to satisfy a default judgment for the full balance claimed in the credit card lawsuit.

It feels pretty bad paying someone else’s credit card debt.  Top off that feeling with having someone else’s bad debts also ruin your good credit by appearing as an derogatory public record on your credit report and jeopardize your employment, if the nature of your work requires that you have no bad debts.

Please see my blog posting on how to respond to a credit card lawsuit: http://www.stopthecase.com/blog/?p=121

If this turns out to be an identity theft account or you would like to see if that is the case, as opposed to mistaken identity with someone else having a similar name, please see my identity theft legal guide on Avvo.com.

Never ignore a credit card lawsuit without consulting experienced defense counsel.  If you are able to get the case dismissed, you may be able to recover your court costs and attorney’s fees.

Robert Stempler
www.StopCollectionLawsuits.com