Need help with Answer to Summons No Evidence possible improper service

[fert]

Who is suing you? American Express Bank FSB

2. How much? $3X,XXX.XX

3. OC? American Express

4. How do you know you are being sued? A friend accepted a summons at the door where I receive my statements at. I was not there.

5. How served? A friend accepted it in person Were you served? No

6. What was your correspondence (if any) with the people suing you before you think you were being sued? None

7. Where do you live? Legally Elgin Oregon but I spend a great deal of time in Sacramento California. That is where I was served, mailing addy and the court is at

8. Last paid? July 2009

9. Case status? It was filed in Superior Court on 10-XX-09 I didn’t know if I should put the exact date here or not.

10. Have you disputed the debt with the credit bureaus (both the OC and the col. agency?) No, I have refused to speak to them on the phone. I have never received anything in writing. There is nothing on my CR

11. Did you request dv before the suit was filed? No

12. Does your summons require a response in writing?

A response is required in writing and no questionnaire was attached. I have included EVERYTHING that I received. I know it is lenghty but I asked before and didn't get insightful replies so I thought maybe you guys thought I was being lazy. I will work on my response in a while. It took my 10 hours to type this out.

I think I am being sued. But from what I have read on here there are several elements missing. I really need help. I will try and provide all the information necessary. Anything in brackets will be not in the summons but my thinking or a question.

{I am in California.} Page 1 of 1 Summons SUM-100

Notice to Defendant: Jane Smith {no middle name used, I ALWAYS use my middle name "Jane Ann Smith" or Jane A. Smith, never Jane Smith and as it is used here would also be my daughters name and my sister in laws name. Both of those Jane Smiths who have stayed with me at the service}

Does 1 to 10

You are being sued by plaintiff: American Express Bank, FSB

{ it goes on to say} I have 30 calendar days after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff {ect.}

{Below is a date stamp} 10-X-09 & a clerk stamp Hand written case number

{No seal stamp.}

NOTICE TO THE PERSON SERVED:You are served

1. as an individual defendant. {my card was a business card, they didn’t check #2. as the person sued under a fictitious name of (specify) they ignored #3corp, defunct corp, partner, minor, conservatee, authorized person}

#4 by personal delivery on (date): {left blank}

{This complete package was given to a visiting friend while I wasn’t at home and then not given to me for 20 days as they thought the service wasn’t valid since it wasn’t given to me or a resident of the house}.

{Page2} Civil Case cover sheet CM 010 page 1of 2

{1st box}Attorneys name, Zwicker & associates P.C. a different town than I live in

Attorney for American Express bank FSB

{2nd box} court name ,addy ect

{3rd box} case name American Express Bank FSB v Jane Smith {not my Real name of course} {off to the side it has a} Filed stamp of 10-X-09 by {with no deputy signature} and the case number stamped.

Civil Case cover sheet Unlimited is Checked Amount over $25,000

1. Check one box below for the case type that best describes this case:

Contract Other Collections (09)

2. This case is not complex under rule 3.400 of the California Rules of Court.

3. Remedies sought (check all that apply) a. monetary {they checked only one}

4. Number of causes of action(specify): one

5. This case is not a class action suit.

6. 6. If there are any known related cases, file and serve a notice of related case (You may use form CM-015)

Dated 09-xx-09

{then it has the attorney name and Ca # and next line a signature}

{Page 2 0f 2 is just instructions}

COMPLAINT-contract page 1 of 2

{1st box} attorney

Zwicker & Associates. P.C.

Other town

Attorney for: AMERICN EXPRESS BANK FSB

{2nd box}Superior Court info off to the side stamped info, with case # and below no case number but a sticker with Department assignments Case management XX, Law and Motion XX Minors Compromise XX

{3rd box}Plaintiff AMERICAN EXPRESS BANK FSB

DEFENDANT: Jane Smith

DOES 1 TO 10

{4TH BOX} JURISDICTION (check all that apply)

ACTION IS AN UNLIMITED CIVIL CASE (EXCEEDS 25,000)

1. Plaintiff (name or names): AMERICAN EXPRESS BANK, FSB

Alleges causes of action against defendant (name or names): Jane Smith

2. This pleading, including attachments and exhibits consists of the following number of pages: 3

3. a. Each plaintiff named above is a competent adult except plaintiff (name) American Express Bank FSB

other (specify) A federally chartered savings bank

{they skipped the parts about the fictitious business name laws /doing business under fictitious name, licensing requirements. They also skipped#4 each defendant is a natural person except…. I was clearly a dba when using this card}

Page 2 0f 2

4. con’t-

b. The true names of defendants sued as Does are unknown to plaintiff.

(1) Doe Defendants (specify Doe numbers) ____ were the agents or employees of the named defendants and acted within the scope of the acgency or employment.

(2) Doe defendants (specify Doe numbers) ____ are persons whose capacities are unknown to plaintiff.

{they did nothing with my Does 1- 10 here so can they come back later and add them??? They are talking about my additional cardholders I am thinking}

5,6didn’t apply

7. This court is the proper court because c. a defendant lives here now. {technically I live in Oregon that is my place of legal residence but where I received my statements is where they served me, so should I just go with this? I am here more than there so would there be any benefit to moving it?}

8. The following causes of action are attached and the statements above apply to each(each complaint must have one or more causes of action attached):

Common counts

9. Other allegations: Before commencement of this action, in those cases where recovery of costs is dependent on such notices plaintiff informed the defendant(s) in writing it intended to file this action and that this action would result in a judgment against defendant(s) that would include court costs and necessary disbursements allowed by CCP Section 1033((2)

10. Plaintiff prays for judgment for costs of suit; for such relief as is fair just and equitable and for

a. $3X,XXX.XX

b. Interest on the damages

(1) according to proof {not checked of course}

(2) X at the rate of (specify) 1X.00 per year from (date) 09-XX-09

c. attorney fees

(1) of:$

(2) (2) according to proof

D X other (specify) NOTICE TO DEFENDANT(S): All notices, letters, payments, and other papers are to be mailed to plaintiff’s attorneys, Zwicker & Associates, P.C. until such time, if any, that you receive formal written notice of a change or substitution of attorneys by plaintiff.

11. The paragraphs of this pleading alleged on information and belief are as follows (specify paragraph numbers): { this was not checked or used}

{below that is the date, attorney name and signature ,end of page 2 of 2} {below that is (If you wish to verify this pleading, affix a verification) What does that mean???}

Page 3 Cause of Action- Common Counts PLD-C-001(2) page 1 of 1 { I put in bold what applies so you could see what wasn’t chosen}

Short title:

AMERICAN EXPRESS BANK, FSB V. JANE SMITH, et al { NO case number listed)?????

First cause of action- common counts

cc-1. Plaintiff(name) AMERICAN EXPRESS BANK, FSB

ALLEGES THAT DEFENDANT(NAME): Jane Smith and all other Defendents named herein, including Does 1 to 10 became indebted to Plaintiff

a. X within the last four years

(1)X on an open book account for money due.

(2) X because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff.

b. X within the last two years X four years

(1) for money had and received by defendant for the use and benefit of plaintiff.

(2) for work labor ,services and materials rendered at the special instance and request of defendant and for which defendant promised to pay plaintiff

The sum of $

The reasonable value

(3) X for goods, wares and merchandise sold and delivered to defendant and for which defendant promised to pay plaintiff

X the sum of $3X,XXX.XX

The reasonable value

(4) for money lent by plaintiff to defendant at dependents request

(5) for money paid, laid out, and expended to or for defendant at defendant’s special instance and request.

(6) X other (specify) For credit extended for purchases and/or cash advances on the account issued by Plaintiff for which defendant(s)was billed periodically and failed to dispute as required under the federal Fair Credit Billing Act applicable to such account (15 ASC Section 1666et seq.) This cause of action is based on defendant’s credit account ending in wxyz.

CC-2$ , which is reasonable the value is due and unpaid despite plaintiffs demand, plus prejudgment interest _ according to proof _ at the rate of ____percent per year from (date):

CC-3_ Plaintiff is entitles to attorney fees by an agreement or statute

_ of $

_ according to proof

CC-4 X Other: $3X,XXX.XX, which is the fixed and agreed amount due and unpaid despite Plaintiffs demand plus prejudgment interest rate of 1X.00 (XXXXX) percent per annum from 09-XX-09

Page Three

{That end of the cause of action, behind that was attached the unlimited cases packet (2 pages) and a civil department assignment information sheet. }

1)Why wouldn’t the cause of action have the case number on it?

2)Why didn’t they ask for attorney fees anywhere?

3) Do I ask for discovery now? If so, how

4)How can I find out if the service was perfect

[david9041]

By your local rules , does the summons have to be delivered to you in person or someone that resides at your address ? Does the person that accepted the summons live at that address ? If it was not proper service and your friend just now let you know , show up and claim lack of knowledge because of the invalid service and request an extention of time , then start reading the posts on this site .

[fert]

Hi David,

Seems you are onto something here. It was left at the mailing address but not with a resident of that address. Also, they were suppose to follow it up with a mailing of the summons & complaint and they didn't do that either.

What do you mean "show-up" I don't have a court date or anything? How do I go about claiming invalid service? Or would I wait until I saw they had asked for a default judgement (sounds risky) I only have one day left if the service was good they left it on 11-29 a Sunday at 8 pm. I could use some time that is for sure!

[fert]

One more thing. If they had mailed the summons & complaint out after leaving it (Which they didn't) and if they had left it with a proper person (which they didn't it). It looks like it adds another 10 days. It says that Service of a summons in this manner is deemed complete on the 10th day after mailing. But since they haven't mailed anything yet even if they had done the first step correctly the clock hasn't started yet, right? Or am I all washed up? Where can I check to see if they consider the service proper? Would it be at the courthouse? I tried online but all I can see there is that it has been filed.

[unusualsuspect]

CA has specific rules for service...

1. Personal service;

2. Substituted service - given to someone 18+ years old at your last known address and mailed to the same address;

3. Service by publication - with court permission, the service is published in the newspaper in the county of your last known address.

You can get this case dismissed if you do not live in Sacramento County. You'll have to file a Motion to Dismiss based on venue. In it, declare you are not a resident of the county and ask the court to dismiss. Include proof of residency (ex. lease or utility bill) with the motion.

In your case, being sued in the wrong venue can be some pretty powerful leverage... if and when they decide to sue in the proper venue. It can be the basis of a pretty strong defense ( how can I believe their proof when they cannot even sue in the right place?) or a counterclaim for wrongful suit. It's pretty strong if you even decided to negotiate the debt down ( I won't counterclaim if you settle for $$ instead of the full amount.

Edited December 28, 2009 by unusualsuspect
spelling

[david9041]

fert , I am in Florida and from what I understand Calif. rules are different . If it was me , at the very least I would beat it down to the courthouse , write a short letter that states--- due to improper service you just found out about this and have no idea what it is about and at this time you must deny everything explain about the bad service , make sure they date stamp a copy for you to keep and file a copy with their records and tell them you will prepare another answer ASAP . you need someone on this site that knows Calif. law , but make sure you respond .

[unusualsuspect]

You'll need to file the motion I mentioned... I've done it in Fresno County, CA but am away from the desktop where I have a copy of the motion I did... I'll post it tonight or tomorrow (at the latest).

But David is right-- the window is short on filing.

[admin]

You know - it seems like you motion to dismiss based on improper service will get toss due to logic that runs something along the lines of "I was improperly served. Even though I know about the case, I want it dismissed because I wasn't notified properly".

Improper service is to protect people from being sued without knowing it. You obviously know you are being sued. Raising this issue is not a good idea, IMHO. I'd file an answer and fight the rest of the facts of the case.

[unusualsuspect]

Admin--

I think the OP's point was that she was sued and served in Sacramento but does not live there anymore. In that case, the Plaintiff would have sued in the wrong venue. The OP's motion is to get it kicked out of Sacramento and into the proper venue in Oregon.

[unusualsuspect]

Your sample...

The Plaintiff has brought suit against the Defendant in the wrong venue (California Code of Civil Procedure (“CCP”) §396).

The Defendant does not reside in Fresno County and has not maintained a residence in this County. The Defendant currently resides in the City of Oxnard, County of Ventura.

The case is not subject to the Court’s jurisdiction because it does not meet any of the criteria as codified in CCP §395(:

 The Plaintiff and the Defendant never signed any contract or other form or type of agreement in this County;

 The Defendant did not live or maintain residence in this County at the commencement of legal action.

WHEREFORE, the Defendant prays the Court grant the following:

1. The Plaintiff take nothing by way of this suit;

2. That the entire case be dismissed with prejudice;

3. Any other relief the Court deem just and appropriate

Be sure to change to make appropriate to your situation...

[fert]

Did you have to send a copy to the plaintiff also like it was the answer to the summons or just file it with the court? What is it called? Is it just called a motion? Sorry to sound so stupid?

[fert]

I filed my answer on 1-08-10 denying everything. In my affimative defenses: This court is not the proper court.The defendant does not live here as stated in the complaint. Plaintiff has not provided one piece of evidence on which to bring this case bearing their burden of proof. No documents, no card holder agreements or signed contracts. Their complaint is unfounded and errouneous in full.

Under other: in denying the allegations of the complaint above defendant denies not only specific numbers and amounts alleged by plaintiff but any and all amounts claimed.

Defendants Prays; a. that plaintiff take nothing

b. for costs of suit

c. other The entire case be dismissed with prejudice: Any other relief the Court deems just and appropriate.

I had talked with a paralegal and he insisted that I couldn't get it dismissed because the statements had gone to my CA address so I put my Oregon address down as my address and put my Ca address as an alt. address.

So, now I receive at the CA address (forwarded to here) enter to default.

Judgement to be entered 0.00. Everything is all zeros.

It is signed by the attorney 1-7-10 mailed first class declaration of mailing 01-11-01. But it isn't stamped by the court.

What is this? What do I do with this? Is this a joke?

[BrokeBob]

Is that correct? If your legal address is in Elgin, wouldn't they have to file in Union County, OR? Maybe send up a lawyer from Portland, who would hit an ice slick on Cabbage Hill and go off the road around Deadman Pass? (I used to teach at a college close to Elgin, a long time ago. My wife, having grown up in Manhattan, couldn't take it. The scenery was really nice, though.)

[fert]

I was all upset when the paralegal told me I couldn't just get it dismissed the way unusual suspect had it suggested. He (the paralegal) told me they could serve me anywhere that I had my name on something. Like my time share in florida or Nevada even! It certainly didn't seem right but I was down to the wire on filing so I went to the law library got some help and answered the best I could armed with notes from here and books from there. I looked at the SOL and it is 2 years shorter in California so I said what the hey. I had just wasted a week and driving 1400 miles to get my rental agreement though!

[unusualsuspect]

That's why the person you spoke with is a paralegal... could you imagine if that person actually passed the bar???

You can be sued anywhere, but the court has rules on the cases it will hear. Most courts will hear cases where some sort of injury occurred (ie. breach of contract in Sacramento County would be heard in that county and not in LA).

Just to be on the safe side, file a motion to vacate and base it on CCP Sec. 396. Calendar the motion and send it to the Plaintiff...

[Ms_Nomer]

sued anywhere? isn't proper jurisdiction (or lack thereof), a reason some cases are dismissed?

[unusualsuspect]

Yes, but the burden is always on the Defendant to prove that they have been sued in the incorrect venue.

[fert]

Wouldn't I be better off letting them get that judgement for zero dollars? Wouldn't that then prove I didn't owe them anything or is there something I am missing and they are really pulling a fast one that I don't know about? Have you seen this done before? They can't sue me twice can they? ( I mean if they get there default Judgement) I thought maybe they saw where I was granted my fee waiver and said screw it.

Your right about the Paralegal. I think I will stick to the Law Library form now on!