Please help--friend being sued by Midland in CA....

[skydivr7673]

I know a lot of this is going around...

My question is about BOP among other things. In this case, MF sent defendant a letter saying "our process server has informed us that you have been served", but she never was served at all. The first indication that she actually had been sued came when she got a certified letter from MF that was in fact a motion to set trial. The Harris County Civil Court, Law #1 website shows the following:

1--petition filed on 13 January 2012.
2--motion to set trial filed by plaintiff 19 January 2012.
3--Summons served on 1 February 2012.
4--Appearance date set for 27 February 2012.

Is it premature to motion for hearing before the summons is even served?

OK, so she still has not been served, so she has no idea what is even in the complaint. She also needs to file a BOP....since MF is known for not providing anything actually legitimate. How would you recommend she proceed? Of course, she's checking the court clerks office in the morning to see what they have claimed about service of summons.

[tigger]

Welcome skydivr...! So sorry to hear that your friend wasn't properly served. It's stressful enough to deal w/a lawsuit, but to also have to do some extra work due to a sloppy lawfirm is that much more frustrating.

Hopefully someone familiar with Texas/Harris County court procedures will weigh in on how your friend should proceed. Before even dealing with a BOP, your friend may need to inform the Court that they were not properly served the complaint.

On edit--I sincerely apologize for my response. I misunderstood your post and thought you (and/or your friend) was in CA, being sued. As one in CA I responded.

Hoping someone from Harris County w/knowledge will weigh in. There may be no need to notify the court of improper service, if to answer you just "show up" at a court hearing.

Don't worry about a BOP UNTIL you learn how your friend deals with improper service of the complaint. Then they should be concerned with how to answer the complaint so he/she avoids a default judgement being entered against them.

In CA we answer by filing with the court (paperwork). Perhaps in Texas, the answer is entered by the defendant making an appearance in court, before the judge (?) Sorry to be vague, as I said, I'm in a different state and sincerely don't want to misinform you.

Either way, as there already seems to be a court date set, make certain your friend knows about it, and clears their schedult to be in attendance--in the event this is the way to avoid a default judgement!

Best of luck to you and your friend!



ps. Maybe consider changing your subject line, so others in Harris County/Texas know you need some assistance.

[skydivr7673]

Thanks tigger, but that was my mistake--the subject is correct, the Harris County is a separate issue and for some reason I got them mixed up when I posted. I guess thats what happens when I am up half the night with no coffee....

Let me try this again.

In the CA case, Midland did serve a summons. Defendant answered denying. The docket info above, please ignore it completely as it pertains to something obviously separate.

Also, I did hear late last night that this person already had a scheduled hearing, which would have been the case management hearing I am guessing. No one showed up for the plaintiff. At this point, plaintiff has not sent any RFA or for POD. Would this be the right time to request BOP? And if so, is there a specific format needed for it? I know that the CA SOL is 4 years on CC debt, and MF provided three statements as part of their complaint. The earliest one is from March 2008, and shows that the account was already delinquent by several hundred dollars, so at this point it could be beyond SOL. I noticed that MF has changed their wording on complaints to include a lot of "in the normal course of business" and "within the last four years", and I can only assume that these are weak tricks designed to try to convince people that they are meeting the conditions for hearsay laws and SOL....just plain sad.

OK, so back to the BOP....any thoughts?

[1stStep]

Yes...have your friend send a BOP over ASAP. They will have 10 days to itemize all the activity over the life of the account - something that Midland will have trouble doing.

Be sure that it is sent via CMRRR. You will need to know the exact day that it is received.

[skydivr7673]

Big update--

My friend just emailed me. She was able to get copies from the court clerks office. The process server lied big-time. The guy has sworn to the court that he served her personally, at her home, on 1 February at 1:30 in the afternoon. She and her husband work, and she can prove that she was at work at that time. They have no children or anyone else living with them. The guy actually told the court that he personally put the summons in her hand....

So, now, how should this be handled? Even if it were enough to get the case dismissed, they might just try to file it again. And if MF has done their usual pathetic job of documentation, she stands a good chance of winning anyways. But What is the best way to handle this? The guy flat-out lied to the court....

[1stStep]

She will need to file a motion to quash service...

Also, she may want to consider suing the process server for fraud. In Calif., process servers carry a $2k bond - something she can go after. In the long run, it will put the process server out of business since he caused his bonding company a loss.

[skydivr7673]

Dang, I really need to start a separate thread, I am doing it again!!!

Sorry guys, Not meaning to confuse. Service was proper in the CA case. A friend in TX is being sued by these same people and so sorry for that!