ICDeadPeople Posted February 9, 2007 Report Share Posted February 9, 2007 I'm in California. I was recently served with a summons, well the process server served my 11 yr old son:evil: for an acct that was charged off by Capital One. I haven't heard anything about this debt in years. The account became deliquent in Sept. 2002. In the summons the atty states that I have " within the last four (4) years....breached the terms of the agreement"Well, the SOL in California is 4 yrs. I have 30 days to respond to the summons. Since I this is the first time in years I have heard anything about this debt, I'm sending a request for validation via CMRRR tomorrow to the attorney's office stating I have never been contacted before they filed suit and requesting they validate the information. Also their only exhibit in the summons is the standard truth in lending form that comes with any credit card. There is no account number or anything from Capital One with my name on it.Suggestions on how to proceed? Oh, also the clerk at the county court house told me to make sure I put in my response that my 11yr old was served and be sure to bring it up in court.TIA for any help Link to comment Share on other sites More sharing options...
direred Posted February 9, 2007 Report Share Posted February 9, 2007 File a limited appearance for a motion to quash service of summons.Quash due to improper service. Link to comment Share on other sites More sharing options...
ICDeadPeople Posted February 9, 2007 Author Report Share Posted February 9, 2007 File a limited appearance for a motion to quash service of summons.Quash due to improper service.Thanks for the info. How do I file that? Should I call the small claims advisor and ask? Also the date they list in the summons is April 12, 2003. My last payment was in Sept. 2002 which means it is past the SOL even if using their date of April 2003 by the time we get a court date, it would be a few days after April 12, 2007. Link to comment Share on other sites More sharing options...
divemedic Posted February 9, 2007 Report Share Posted February 9, 2007 That won't work- as soon as you appear the court will rule against you. There is case law that states as long as you got the summons on time, improper service can't be used. Try SOL as a defense. It ran as of Sept 06, if all is as it seems. Link to comment Share on other sites More sharing options...
Recovering Attorney Posted February 9, 2007 Report Share Posted February 9, 2007 I don't know about CA> but here in Noo York the rule is leaving it w ith a person of suitable age and discretion in your household. If it was served where you live, and you now have it, you have two things: acceptable service, and a responsible son. Go forth and defend! Link to comment Share on other sites More sharing options...
Recovering Attorney Posted February 9, 2007 Report Share Posted February 9, 2007 And make sure you add " The action is barred by the statute of frauds" as a defense. You may have a counterclaim for bringing an action outside the SOL, which would violate both state and federal law. Link to comment Share on other sites More sharing options...
ICDeadPeople Posted February 9, 2007 Author Report Share Posted February 9, 2007 Thanks for all the replies. I think in my response I will point out that my 11yr old son was served. I am the only one in my household who of the legal age to lawfully be served. Handing some paper to an 11yr old and saying "Give this to your mom" is ridiculous.As far as my defense. They haven't proved that the debt is mine. There Exhibit A has no personal information on it what so ever. I have to respond by March 8th. I plan on submitting my response on March 5th and served them with it via CMRRR or some other way with a receipt. The court will set a date 6 wks out, which puts it around the week of April 16th. So even using their date that they have in the summons, that makes it just over the 4yrs.If someone can help me form my response, I would appreciate it. I am being sued on 4 counts and can list them in a seperate thread if necessary.Thanks so much! I am so glad I found this place! Link to comment Share on other sites More sharing options...
divemedic Posted February 9, 2007 Report Share Posted February 9, 2007 I can promise you that the claim of improper service won't get you anywhere. The judge will see it like this: You appeared for court, therefore service becomes a moot point. There is quite a bit of case law on this, but I do not have access to it while I am at work. Link to comment Share on other sites More sharing options...
LadynRed Posted February 9, 2007 Report Share Posted February 9, 2007 While the legal age for accepting service of process in CA is 14 years old, you did get the summons, so it may be tough to hang on that.Your best defense is the expired SOL. IN CA, via the Rosenthal act, it is ILLEGAL to sue on an out-of-statute debt. You might want to read up on SOL and such here:http://www.californiadebtblog.com/2007/02/faq_i_was_sued_.html Link to comment Share on other sites More sharing options...
ICDeadPeople Posted February 9, 2007 Author Report Share Posted February 9, 2007 Thanks everyone!I am not planning on using the fact that my 11yr old son was served as a defense. I was just going to bring it to the judge's attention since the legal age in CA is 18.My defense is SOL and the fact that they can't prove that the debt is mine. I hadn't heard from Capital One in years. Even though I do now have an account with them, that's in good standing. So they have all my info, including my employer info. This Silverman law firm just suddenly out of the blue served me. I do know that the court here does need proof that the debt is mine. My employer sued a former tenant even tho paperwork was lost. The only reason the case was won was because the defendant never showed. Also the judge admonished my employer that if he did it again, he better have signed documents proving the debt.Anyway, rambling. Even the I have already been served, I still sent a DV letter (unsigned) CMRRR today since they never contacted me. Will it work? No clue but I am prepared to go to court with my credit report showing I became 30 delinquent beginning Oct. 2002.Thanks again for all the help. Reading these forums has really helped. Link to comment Share on other sites More sharing options...
debt tired Posted February 9, 2007 Report Share Posted February 9, 2007 Thanks everyone!I hadn't heard from Capital One in years. They are after me also and SOL has expired on my account by 2 years. They must be hard up for money right now to break the number of laws that they have broken by trying to collect on a time-barred debt! Link to comment Share on other sites More sharing options...
ICDeadPeople Posted February 10, 2007 Author Report Share Posted February 10, 2007 They are after me also and SOL has expired on my account by 2 years. They must be hard up for money right now to break the number of laws that they have broken by trying to collect on a time-barred debt!I agree! I think they sent them out and figured that most people would ignore the summons and they would win a judgement that way. Link to comment Share on other sites More sharing options...
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