pmejia Posted October 28, 2004 Report Share Posted October 28, 2004 hi i live in queens, ny, and i received a summons by mail from the firm (credit collection agency) for an amount due on a credit debt. i was under the impression that a summons had to be served, or that if it's by mail, there has to be proof of service? the summons seems formal, but i did not receive along with it a proof of service to complete, sign and return to the sender. is this a scare tactic or even legal?thankspaul Link to comment Share on other sites More sharing options...
Recovering Attorney Posted October 28, 2004 Report Share Posted October 28, 2004 Yes, it may be. If it was service by mail per CPLR 312-a, you would have had a form to fill out. But if you don't you were served in the traditional leave and mail or nail and mail. In other words, they may have tried to serve you by leaving a copy with someone you live with, or by nailing it to teh door. Mailing it is step two. Check with your housmates, doorman ,etc to see if another was left. I would answer the summons. If you need help, let me know. One defense you can add is " The Court lacks personal jurisdiction over this defendant." That way you can discover the service of prcess and see if there was a defect. Anyone who leaves/nails and mials must file it with the court, and service is complete when filiong, so your time to answer technically does not start until the date they file it. You should also get another copy in the mail fom the lawyer for the plaintiff as a 3215 notice. Link to comment Share on other sites More sharing options...
pmejia Posted October 28, 2004 Author Report Share Posted October 28, 2004 thanks i checked with the family that lives above me and they did not receive anything regarding the summons matter. plus, the summons was left in my mailbox, not nailed, or by any other manner. however, i will take your suggestion and try to uncover the service process they used. paul Link to comment Share on other sites More sharing options...
Recovering Attorney Posted October 28, 2004 Report Share Posted October 28, 2004 left. with or without postage? If it was simply left in your mailbox, that is sloppy but not horribly out of line ( you did get it). If they file, as they should, teh aff of service will be filed with the court. You can look at it there. For a quickie answer, try thisDefendant, by himsself, answer the complaint herein by showing the court that:1. Defendant denies every allegation of the complaintAS AND FOR DEFENSES:2. The court lacks personal jurisidction over the defendant3. The court lacks subject matter jurisdiction over the action4. The plaintiff lacks the legal capacty to bring this action5. The action is barred by the applicable statute of frauds6. The action is bared by the applicable staute of limitations7. plaintiff fails to state a cause of action against the defendant.Wherefore, defendant asks for a judgment in favor of the defendant dismissing the complaint, together with costs, and such other further and different relief as teh court finds proper here. ________________sign yournameprint your nameaddressphonecc: plaintiff lawyer at his address court clerk -civil index clerk- under index number Link to comment Share on other sites More sharing options...
Biddybaby Posted October 28, 2004 Report Share Posted October 28, 2004 If they left it in your mailbox w/o any postage, they violated 18 U.S.C. 17251.3Use for MailExcept under 2.11, the receptacles described in 1.1 may be used only for matter bearing postage. Other than as permitted by 2.10 or 2.11, no part of a mail receptacle may be used to deliver any matter not bearing postage, including items or matter placed upon, supported by, attached to, hung from, or inserted into a mail receptacle. Any mailable matter not bearing postage and found as described above is subject to the same postage as would be paid if it were carried by mail. Link to comment Share on other sites More sharing options...
pmejia Posted October 28, 2004 Author Report Share Posted October 28, 2004 the summons arrived in an envelope with postage, i believe. i honestly do not remember, because i opened the envelope and threw it away. the summons, however, seems formal. but i was under the impression that if it is mailed, there would be a proof of service. but from your impressions, it seems like this is a legal option for the plantiff. i guess this means it serious and i should respond within the alotted time. thankspaul Link to comment Share on other sites More sharing options...
Recovering Attorney Posted October 28, 2004 Report Share Posted October 28, 2004 there is no requirement for an affidavit of service to be mailed to you. Don't delay on it. Might as well get to it. Link to comment Share on other sites More sharing options...
missinglink Posted October 29, 2004 Report Share Posted October 29, 2004 Heres a link to the N.Y.C. courts that might be of some help.http://www.courts.state.ny.us/courts/nyc/civil/index.shtml Link to comment Share on other sites More sharing options...
pmejia Posted October 30, 2004 Author Report Share Posted October 30, 2004 another developmenti had sent the law firm a debt verification letter (priority mail and signature confirmation) after i received the summons. in the letter, i asked them not to contact me at home or at work by phone, and that communication was to be done only by mail. four days later, the law firm debt collection rep. left me a message. i thought the FDCPA rules apply to them as well? thankspaul Link to comment Share on other sites More sharing options...
Recovering Attorney Posted October 30, 2004 Report Share Posted October 30, 2004 yes, but you are in a lawsuit, and time is ticking. No one would find the law firm in violation of the FCDPA under those circumstances. Answer the complaint and dtart some vigorous discovery. Link to comment Share on other sites More sharing options...
willingtocope Posted October 30, 2004 Report Share Posted October 30, 2004 And, just for the record, even after a "contact me in writing" letter a CA is allowed to make one more phone call to you to tell you what their next step will be... Link to comment Share on other sites More sharing options...
pmejia Posted October 31, 2004 Author Report Share Posted October 31, 2004 thanksi definitely plan on answering the summons first thing monday. i just get a gut feeling this "firm" is extremely shady.when i called them on oct. 8 to settle the debt, the debt collector representative agreed to send me a written contract stating the agreed terms. instead, almost two weeks later, i get a summons for the full amount. i called the rep. again on oct. 25, not mentioning that i had received the summons, but to find out why he never sent me the contract. the rep. avoided the question, and tried to coerce me to pay the previously agreed settlement that very day. i requested debt verification, to which he played dumb and told me he did not know what that meant. after i repeatedly told him that i would not pay anything without a written contract, the rep. agreed to send me the contract. of course, i haven't received anything. that same day, i sent him a verification letter along with a statement not to contact me at home or at work; only by mail. four days later, he leaves me a message at home. not only do i not get served properly (according to NY law, if the defendant is served any othe way other than personally serving the person, the plantiff must file a proof of service--it says it on the summons itself). This means, i should have had an affadavit to fill out, sign and return to the firm to confirm receipt and for them to file the affadavit with the court so the time starts clicking for my response. i don't know why the rep. agrees to send me a contract twice, but never does, and he is being soooo difficult about this. i want to settle, but i want something in writing first. talk about uncooperative debt collectors!paul Link to comment Share on other sites More sharing options...
willingtocope Posted October 31, 2004 Report Share Posted October 31, 2004 Well, the thing to remember is a very large percentage of the people that debt collectors deal with don't know their rights. So, they're trained to be belligerent when required, dumb when required, and promise anything so you'll give them money over the phone or send them a check.The problem with agreeing to anything...either verbally or in writing...is that you give them reason to think you've got some money. They want it all, not just some settlement. If you do agree to something with a CA, there's even a good chance that it won't get credited to your account and they'll turn around and sell the account to another slime ball who will hound you for the money...because if you were a patsy once, you might be again.Be prepared to deal with them in court... Link to comment Share on other sites More sharing options...
Recovering Attorney Posted October 31, 2004 Report Share Posted October 31, 2004 You do not get an affidavit of service to fill out, ok? Link to comment Share on other sites More sharing options...
pmejia Posted October 31, 2004 Author Report Share Posted October 31, 2004 thanksi guess i'm still unclear on the summons procedure. from what i read on the net about NYC law and what it says on the summons itself, the plantiff has to file a proof of service to the court. how can they prove i received the summons without me signing anything? it doesnt matter, because i still plan on answering the summons tomorrow. i guess its useless to try and return the rep's call since he has agreed to send the contract twice, and failed to do so. plus, he obviously has no regard to FDCPA rules about harrassing calls. i will be meeting with my local CCCS office to try and figure out a solution. the guy i spoke to said i should also answer the summons ASAP, but that he's worked with "firms" and situations like mine before, and he's successfully mediated a debt solution. if this doesnt work, i guess i'll have to file bankruptcy since i cannot pay the entire amount they are asking for in the summons ($4000).thanks againpaul Link to comment Share on other sites More sharing options...
willingtocope Posted November 1, 2004 Report Share Posted November 1, 2004 Ouch....be very careful in your dealings with CCCS. They're not entirely dishonest, but they do not have your best interest at heart either. I'd suggest you go and listen to what they have to say, but DON'T SIGN ANYTHING, until you've had a chance to think it through completely. Sometimes, these credit counselors are able to "deal" with collection agencies because they are actually part of their organization, at least indirectly.You didn't actually say that this was a "credit card" debt you're trying to deal with...is it? Is this the only debt you've got a problem with?If there are others lurking in the background, then maybe BK is an option... Link to comment Share on other sites More sharing options...
cnoob Posted November 1, 2004 Report Share Posted November 1, 2004 See my inline comments below.thanksi guess i'm still unclear on the summons procedure. from what i read on the net about NYC law and what it says on the summons itself, the plantiff has to file a proof of service to the court. how can they prove i received the summons without me signing anything? Proof of service is just a document that affirms service was made. It doesn't have to come from or be signed by YOU. Whomever mailed the summons to you can sign the proof of service: "I swear I mailed this summons to John Doe on this date with postage prepaid." That's all they need to do unless the law in your area requires something more. Basically, if someone affirms/swears/certifies a particular statement to the court, it is TRUE as far as the court is concerned, UNLESS you have overwhelming evidence to the contrary.Make no mistake: they are under no obligation to get YOUR signature for the proof of service.it doesnt matter, because i still plan on answering the summons tomorrow. i guess its useless to try and return the rep's call since he has agreed to send the contract twice, and failed to do so. plus, he obviously has no regard to FDCPA rules about harrassing calls. i will be meeting with my local CCCS office to try and figure out a solution. the guy i spoke to said i should also answer the summons ASAP, but that he's worked with "firms" and situations like mine before, and he's successfully mediated a debt solution. if this doesnt work, i guess i'll have to file bankruptcy since i cannot pay the entire amount they are asking for in the summons ($4000).thanks againpaulDo not file for bankruptcy over $4000. It's not worth it. Collection agencies break the law everyday. You can offset this lawsuit easily with just a little effort. You probably have $5000 in violations and don't even know it yet. If you look hard enough, you'll find that they owe YOU money.Read the FDCPA and FCRA (assuming this is on your credit report), start disputing this debt and force them to act. They WILL screw up. As the sun will rise tomorrow, they will screw up and you will have leverage. You must act quickly.If the worst comes to past, you'll have a judgment. Big deal. There's ways to deal with that, too, that are a lot easier and take less time to get over than a bankruptcy. Link to comment Share on other sites More sharing options...
pmejia Posted November 1, 2004 Author Report Share Posted November 1, 2004 thanks again for all the info and advice. the clarification on the summons was also clear to me now.i hope i can avoid the lawsuit or bankruptcy all together and somehow reach an agreement with this "firm" to settle the debt. thankspaul Link to comment Share on other sites More sharing options...
willingtocope Posted November 1, 2004 Report Share Posted November 1, 2004 Again...is this a credit card debt? Other types of debt have other solutions... Link to comment Share on other sites More sharing options...
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