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Have I been served?


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I'm a newbie to this site but have discovered some really great information. I owned a franchise under a Limited Liability Corporation. My franchisor, and it's corporate parent went Chapter 7. I am being contacted by a law firm attempting to collect over $23,000 in receivables. My LLC and business was in Massachusetts but I now live in Florida. The business ceased operating in June 2006. The claims are for a period from late 2005 through mid 2006.

I was pretty sure I did not owe that money, so I ignored any collection calls. Last week, a server came to the house asking for me. He spoke to my roommate who refused to accept the summons. The summons was left on the front steps. I purposefully never looked at, let alone touch the summons.

I called the law firm the following day and spoke with an employee. He e-mailed a statement of account and a personal guaranty signed by me. He stated that he had no other information. When he asked if I had been served with a summons I replied that I had not seen or received anything.

I researched my records and feel that, in effect, I actually overpaid this vendor by $2,800. The DC is missing credits, credit balances, and payments previously made.

The personal guaranty has the wrong corporate entity, so I feel that it can not be applied in this case. I sent an e-mail response to the DC stating facts and indicating that I do not feel I owe this creditor anything.

Does leaving the summons on my doorstep constitute service? If so, can the law firm who sued me withdraw the summons? Would I be better off responding to the summons and requesting a hearing? I have some pretty good records, but I do not want to turn over all of the records to the DC (why should I do their work for them?). Can I file a counter suit against the DC? Do I have any prayer of collecting my overpayment to this vendor who went Chapter 7 and went into permanent receivership? Can I recover court costs and legal fees from the DC?

Thanks so much for the help!

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  • 2 weeks later...

48.031 Service of process generally;

(1)(a) Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section.

This is Florida statutes on being served. Since your room mate refused to sign/accept it does not constitute a reason for not being served. The process server must return an affidavit of service to the court clerk stating things like how you were served, the date, time, address, etc...Since it was refused, it will likely be noted on the affidavit that service was refused (the court will see this). Nonetheless, it has legally been served. Furthmore, and also found in the FL statues is the following:

(5) A person serving process shall place, on the copy served, the date and time of service and his or her identification number and initials for all service of process.

This is my opinion as a private process server in Virginia and after looking up FLorida statutes.

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Does leaving the summons on my doorstep constitute service? If so, can the law firm who sued me withdraw the summons? Would I be better off responding to the summons and requesting a hearing? I have some pretty good records, but I do not want to turn over all of the records to the DC (why should I do their work for them?).
Lots of states allow substitute ways to serve you. Depending on your locale they could leave it on the door step, mail it to you, or publish it in the newspaper. It depends on what your particular state says is an "alternate" means of service. Remember, though, lack of service does not mean they can't get a default judgment. In many cases they'll just show the court they attempted service and when all else failed they used an alternate means (in this case left in on your doorstep). If they show the court that's your last known address that's usually all it takes. CAs can (and do) win these types of cases every day...if they didn't there would be a lot less default judgments.

IMO you should always answer a summons.

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