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Motion to Dismiss for lack of process service


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Just a bit of background:

I was sued by Midland and never got a summons from them. I got a notice that there was a case from the local court house and that's how I knew something was happening. Went before the judge and Midland attorneys. I said I was never served and wanted to file a motion to dismiss. The attorney said that we got served via "nail and mail", which was false as well since we never received anything (and live in an apartment building that is locked). Moreover, the attorney didn't file the copy of the affidavit of service with the court. The judge said I could file the motion and seemed a lot more sympathetic to me than to the lawyer.

Fast forward to today, I went to the courthouse to file the motion. I also asked to see a copy of the affidavit of service, which I assumed the attorney filed since the day with the judge. I get the copy and it say that the summons were delivered to a "co-tenant" and it described a person who obviously doesn't live here and not anyone we would know.

What the hell is going on here? First, it's NOT what the lawyer claimed in the beginning with his "nail and mail" comment. Then, it's clearly a lie because no such person lives here. So when I go before the judge, what do I have to prove? How do I prove this person described in the summons doesn't live here? It's just me, my wife and our kids. Should I bring the copy of my lease that lists all the occupants of the apartment? Has anyone dealt with this before?

In addition, if ANYONE can tell me when I have to file a motion to strike in NY, I would appreciate it. I can't seem to find anything online. Between the initiation of the lawsuit and the motion to dismiss, the attorney sent me "proof of debt" and I want to strike the bill of sale and the affidavit of sale. Not sure if I should do it now or after the Motion to Dismiss gets approved or denied.

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I think you need to file a complaint with the agency that licenses process servers...secondly, is there a transcript of the hearing? If so, get it so you can catch them in a lie and taint the credibility of anything Midland tries to do.

Finally, I'd look at suing the process server personally...you've already been damaged as far as time to investigate, maybe lost time at work, etc. Small claims would do nicely. He/she is required to have a $10,000 surety bond. (Surety companies hate their principal messes up or causes them to pay up).

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