How long can summons be held open before serving?

[khub1102]

My question is how long can a summons be held open? Original summons was filed on 09/21/2009. From reading on my state's civil procedure, it looks like it is saying that an extension must be filed every 90 days. Is this right? The summons my friend received yesterday shows the original date (09/21/09), as the last issued summons date. I called the court house and spoke with a lady there and she said that the first attorney who filed the complaint originally tried to get a default without contacting my friend. WOW! Really? She said basically, they can hold these summons open. I do not think so! So, she said they then changed attorneys and now a different attorney is handling. I also asked if there was an affidavit since one was not attached to the complaint and she said yes, that Ivan Jimenez signed it. This is the guy that signed the affidavit for Midland vs. Brent. Another WOW! So, please let me know what your thoughts are! Thank you so much in advance!

1. Who is the named plaintiff in the suit? MIDLAND FUNDING LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) BERNXXXDT and STRXXXER

3. How much are you being sued for? over $5,000

4. Who is the original creditor? (if not the Plaintiff) GE XXNEY BXXK

5. How do you know you are being sued? (You were served, right?) Received summons

6. How were you served? (Mail, In person, Notice on door) Certified Mail

7. Was the service legal as required by your state? Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Back in November, received letter from lawfirm, which was answered, requesting validation. Validation was never received.

9. What state and county do you live in? NC, XXnXXn

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Do not know of account.

11. What is the SOL on the debt? To find out: Have no knowledge

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or b) looking it up online? Just received summons

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Disputed with law firm.

14. Did you request debt validation before the suit was filed? NO

15. How long do you have to respond to the suit? 30 days

We need to know what the "charges" are.
1. Plaintiff is foreign corporation licensed in NC.
2. Plaintiff is informed and believes Defendant is a citizen and resident of XXXX County, and is not an infant. WRONG COUNTY
3. Defendant is not in active military. RIGHT, but defendant is totally disabled.
4. Defendant owes Plaintiff over $5,000.
5. Demand has been made for outstanding balance and plaintiff refuses to pay. Also states that affidavit is attached, but was not. NO ACCOUNT NUMBER LISTED

Did you receive an interrogatory (questionnaire) regarding the lawsuit? NO

16. What evidence did they send with the summons? Nothing was attached.

[khub1102]

(d) Summons – Extension; endorsement, alias and pluries. – When any defendant in a civil action is not served within the time allowed for service, the action may be continued in existence as to such defendant by either of the following methods of extension:

(1) The plaintiff may secure an endorsement upon the original summons for an extension of time within which to complete service of process. Return of the summons so endorsed shall be in the same manner as the original process. Such endorsement may be secured within 90 days after the issuance of summons or the date of the last prior endorsement, or

(2) The plaintiff may sue out an alias or pluries summons returnable in the same manner as the original process. Such alias or pluries summons may be sued out at any time within 90 days after the date of issue of the last preceding summons in the chain of summonses or within 90 days of the last prior endorsement.

Provided, in tax and assessment foreclosures under G.S. 47‑108.25 and G.S. 105‑374, the first endorsement may be made at any time within two years after the issuance of the original summons, and subsequent endorsements may thereafter be made as in other actions; or an alias or pluries summons may be sued out at any time within two years after the issuance of the original summons, and after the issuance of such alias or pluries summons, the chain of summonses may be kept up as in any other action.

Provided, for service upon a defendant in a place not within the United States, the first endorsement may be made at any time within two years after the issuance of the original summons, and subsequent endorsements may thereafter be made at least once every two years; or an alias or pluries summons may be sued out at any time within two years after the issuance of the original summons, and after the issuance of such alias or pluries summons, the chain of summonses may be kept up as in any other action if sued out within two years of the last preceding summons in the chain of summonses or within two years of the last prior endorsement.

[usagi555]

Over two years? Wow, that's a long time. You need to know the rules of civil procedure for NC:

North Carolina General Assembly - General Statutes - Chapter 1A: Rules of Civil Procedure.

What you are looking for specifically regarding dismissals is rule 41. I didn't see anything in there about a time limit for dismissing due to a lack of prosecution, but it does say that a defendant can move for a dismissal if no action was taken for a long enough period of time. That means case law is likely where the answer will be.

[khub1102]

Good info! I will definitely look into that. Thank you!

[usctrojanalum]

it's usually 3-4 months and the court will dismiss the action sua sponte. 2 years seems pretty unreasonable. that case number is most likely dead now and you should not have to worry about it.

[1stStep]

I just noticed this...if you were sued in the wrong county, you may have an FDCPA violation though...I'd call an attorney.

[khub1102]

I called the clerk's office and asked how they could let this complaint sit for over 2 years, without being served, and the response I got was, "Well, we just file the complaints, we do not have anything to do when they were originally filed or anything. When someone comes in to file a complaint, we just take it. We just do the filing." The lady goes on to say, "You just need to answer that summons." I asked then, about the court file number, was it not dead since it has been almost two and half years. "Oh, no she said, those numbers are just fine. There is not a problem with the file number." Oh, well I guess it is back to the drawing board. So, yes, I think there are a number of things wrong with this case..... wrong county, getting a summons served when my friend sent a validation letter and did not get anything back, affidavit signed by a proven robo signer, original attorney trying to get a default without service.... list just goes on and on. I did get in touch with a consumer attorney and he wants us to send the paperwork over to him. So, on Monday, I will have to go pick up the documents they did not send, such as the affidavit and the paperwork showing that attorney tried to pull a big one, but in the mean time, I am going to get together the answers and defenses, a motion to dismiss, a motion to strike affidavit and a request for documentation and we will file those on Monday. See how they like that!!!

[BV80]

Originally Posted by khub1102

I called the clerk's office and asked how they could let this complaint sit for over 2 years, without being served, and the response I got was, "Well, we just file the complaints, we do not have anything to do when they were originally filed or anything. When someone comes in to file a complaint, we just take it. We just do the filing." The lady goes on to say, "You just need to answer that summons." I asked then, about the court file number, was it not dead since it has been almost two and half years. "Oh, no she said, those numbers are just fine. There is not a problem with the file number." Oh, well I guess it is back to the drawing board. So, yes, I think there are a number of things wrong with this case..... wrong county, getting a summons served when my friend sent a validation letter and did not get anything back, affidavit signed by a proven robo signer, original attorney trying to get a default without service.... list just goes on and on. I did get in touch with a consumer attorney and he wants us to send the paperwork over to him. So, on Monday, I will have to go pick up the documents they did not send, such as the affidavit and the paperwork showing that attorney tried to pull a big one, but in the mean time, I am going to get together the answers and defenses, a motion to dismiss, a motion to strike affidavit and a request for documentation and we will file those on Monday. See how they like that!!!

I'd let the attorney look at it first. Go ahead and prepare your answer just in case, but you may end up not having to do much of anything.

[khub1102]

Now, that sounds like a winner! I will do just that..... Thank you! I have already made out the answers, so I can sit on it for a few days.... I mean, we still have what 29 days or so. I will go ahead and go pick up that paperwork, so I can send that along to the attorney though.

[fightemdontfold]

I have a suit against me filed by Portfolio Recovery that sat for almost a year in the court files. They tried to serve it to an address I hadn't lived at for 10 years. I only found it when I was looking on the court website in reference to another suit filed against me.

I went ahead and filed a anwser and sent off discovery and never heard a peep from them. Today I find on the court website that the suit is up for a show cause hearing, i.e. the court is about to dismiss it for lack of action taken by the plaintiff.

Not surprising and typical behavior from them, you said they tried to get a default. That is what they are shooting for and will try any dirty trick to accomplish it as they rarely have the proof. Midland is one, like Portfolio, that can hardly ever win a case unless they get a default.

These big JDB's have so many cases they file, they play the percentages of people not showing up and getting defaults and thus file hundreds of cases at a time in a single county, that I truly believe they forget about all of the ones that don't come up for default. I think the only ones they keep track of are ones that are successfully served and not anwsered within 30 days. Many of the ones that don't get served or are properly anwsered by the defendant end up being forgotten about. That's my experiance anyway with the two JDB's who have filed suits against me, they have just sat there, one being dismissed and the other is about to be.

NC must be like KY and requires that the defendant be served. Some states allow a default judgment after a certain amount of time where service is attempted but fails. They can get a judgement and the defendant not even know it, the judgement can be set aside once a person finds out via wage garnishment etc, but it can be more difficult for a novice to fight it after the judgment as opposed to actually getting served and filing paperwork that might prevent you ever having to even go into the courtroom.

[khub1102]

Thank you! Yea, I agree. I think you are exactly right. That is what they do, just file and hope the person does not say anything, so the JDB's can get a default. I am going to go ahead and get my stuff together, just in case, but I am also sending the paperwork to the consumer attorney and see what they say. I think my friend has a case. Will post and let everyone know how it goes......

[khub1102]

OK, it has been a couple of weeks, since I posted. Where we are at right now is the consumer attorney sent the letter to this ragged out JDB, telling them everything that is wrong with this complaint and we have not heard anything back. I filed the answer for my friend, as well as sent off request for documents. (just to let this lawyer firm know that this is not going to be one of those easy default judgements) My friend has not received anything back, which does not surprise me, with MIXXanX not ever having any documentation to prove what they say anyway.

With keeping the fact in mind, that this complaint was filed in the wrong county, and we are only at the complaint, summons, answer and discovery phase, my question is, should I push to get the request for documents answered. I mean, should I file a Motion to Compel? Of course, after giving them a reminder call and a reminder letter. Gotta go by the book. Or, should I just go ahead and file a Motion to Dismiss? My friend does not want this hanging over his head forever. Or should he sit back and place the ball in their court, so to speak?

I appreciate any and all help. I want to help him, but I am afraid sometimes I get too quick on the draw. lol

[BV80]

Is your friend in NC, as well?