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have court in 4 days, have not been served! Need advice, please


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My court date is in 4 days, I just found out I am being sued on-line. But,

I have not been properly served, court file states they tried to serve me yesterday at 0000 hours which is a total lie. I was home all day!

They (Lawyer on behalf of Capital One - listed on doc is c/o Syst debt mgmt as well) filed the complained mid November...I thought MO requires people to be served at least 10 days before court date in Civil cases?

I searched the cases the lawyer has on the court calendar, turns out 95% of folks he is suing are 'unable to be served' - same as me- Strange, yes??

In addition to a 2 page complaint where they are suing me for 'Breach of Contract', they have a signed application from 2007 - with my signature, a paper stating terms & conditions from 2010, and a fax printout with my name but no credit card account # with a bunch of numbers that make no sense. That's it. Enough evidence to even sue me??

Question: Can I get this dismissed based on not being properly served? Also, the lawyer never sent a letter informing me I was being sued thus I did not get the chance to validate debt, ask for discovery, or get a lawyer because I just found out.... What are my options? All/any ideas appreciated.

Thank you in advance for your help!! Hugs

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also subpoena the process server.

However to file all these you need to give your address. The court might also find your appearance is adequate notice.

So I would file a motion to quash, Demurrer(or whatever they call it in your state), and prepare an answer. The first two would necessarily buy you time to learn.

In the demurrer(or whatever they call it) I would also bring the issue of standing right out in the open. If they are supposed to attach documents to confer standing fight it. also say how if they had standing and prior course of dealings they would know where to serve you.

also file an affidavit denying the allegation that they attempted to serve you. This is obvious default judgment fishing so see if you have available motion for more definite statement.

These are all things that would work in your situation unfortunately time is a factor. So if you go to court I would say you just found out late friday and am appearing to defend. It seems too late to file anything so bring it with you and try to get the hearing moved out to the proper motion time(usually 30 days).

I hate it when sewer service happens. It is sad that debt collectors have to resort to such tricks someone should really go after the process servers.

I would file a complaint with the CFPB, FTC, State AG, and department with responsibility for process servers.

Demurrer or motion to quash indictment must specify grounds.

545.220. A demurrer to or motion to quash an indictment shall distinctly specify the grounds of objection to the indictment; unless it does so, it shall be disregarded, nor shall any reason be held to sustain such demurrer or motion not specified therein.

(RSMo 1939 § 3949)

Prior revisions: 1929 § 3560; 1919 § 3905; 1909 § 5112

Edited by Seadragon
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I'd not concentrate too much on the issue of service if you show up for court. I would assume the Judge will say, okay, you've now been served and have your notice. Let's continue this for 30 days so you can answer and hire an atty if you wish.

The problem with arguing improper service, in person, to the court, is, if you win, you don't get that much out of it. If the judge dismisses the case, they walk to the clerk, refile the case and then serve you.

You've been sued, so DV is out the door. You should be allowed to hire an atty and/or complete discovery. I don't see the court not letting that happen for you.

"In addition to a 2 page complaint where they are suing me for 'Breach of Contract', they have a signed application from 2007 - with my signature, a paper stating terms & conditions from 2010, and a fax printout with my name but no credit card account # with a bunch of numbers that make no sense. That's it. Enough evidence to even sue me??"

Yes that is plenty to sue you with, in fact, more than most have prior to suing. It's called prima facie evidence (more likely than not when no rebuttal is presented).

Good enough to win at trial? No way, not a chance, but by far plenty to survive a motion to dismiss.

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In addition to a 2 page complaint where they are suing me for 'Breach of Contract', they have a signed application from 2007 - with my signature, a paper stating terms & conditions from 2010, and a fax printout with my name but no credit card account # with a bunch of numbers that make no sense. That's it. Enough evidence to even sue me??

Did you obtain all this information from Case.net?

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nascar: Case.net was how I found out, I actually pulled my file and had copies made at the court house.

I tried to call the attorney and left 2 msg's (before I found you guys & knew nothing about my case) he did not call back. He also states in his complaint that in Oct 2011 a demand of payment was made, not true. However, there is a phone number on the complaint to settle and it does state on the complaint 'This is an attempt to collect a debt....'

What really irks me, I have not had ANY communication from Cap 1 or anyone else trying to collect a debt. I had no idea there was a balance. I pulled my credit report and sure enough, it goes from green to yellow to red around June 2010???

Seadragon: They already have my address but added my old apt # ( to the correct st address) from where I used to live. I just moved to MO 6 month ago. I did have a CORRECT forwarding addy with the post office, and receive all my other mail. Furthermore, the server did not say 'address not found' He claims I was not home when the attempt was made. This is obviously an outright lie!!

coltfan1972:What about the 'Clean Hands' thing & the 'Fair Game' Not that I know how to present it to the Judge...:roll:

Isn't that playing dirty? Does anyone care this is going on in the court system??? I would have never found out I was being sued if an attorney wouldn't have sent me a letter soliciting business!!

'also file an affidavit denying the allegation that they attempted to serve you. This is obvious default judgment fishing so see if you have available motion for more definite statement.'

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Can I say this to the Judge? Isn't that against the law to 'fish' and waste our time?

I was going to file a motion to dismiss based on improper service and state that they failed to notify me in time to request verification, etc therefore are in violation of my rights under the FDCPA. Good enough? I am also thinking of counter suing them so they back off.

Is Capital 1 actually suing me? Why would c/o TSYS Mgmt be listed on case.net doc but not on the actual complaint?

Would I be better not showing up to court and fight it after the fact?

Again, thanks for your time. This is a first for me and it's scary!!

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My court date is in 4 days, I just found out I am being sued on-line. But,

I have not been properly served, court file states they tried to serve me yesterday at 0000 hours which is a total lie. I was home all day!

They (Lawyer on behalf of Capital One - listed on doc is c/o Syst debt mgmt as well) filed the complained mid November...I thought MO requires people to be served at least 10 days before court date in Civil cases?

I searched the cases the lawyer has on the court calendar, turns out 95% of folks he is suing are 'unable to be served' - same as me- Strange, yes??

In addition to a 2 page complaint where they are suing me for 'Breach of Contract', they have a signed application from 2007 - with my signature, a paper stating terms & conditions from 2010, and a fax printout with my name but no credit card account # with a bunch of numbers that make no sense. That's it. Enough evidence to even sue me??

Question: Can I get this dismissed based on not being properly served? Also, the lawyer never sent a letter informing me I was being sued thus I did not get the chance to validate debt, ask for discovery, or get a lawyer because I just found out.... What are my options? All/any ideas appreciated.

Thank you in advance for your help!! Hugs

Show up in court and tell the Judge you have not been served.

If plaintiff can't produce a hard copy of a contractual agreement bearing your signature than there is no "breach of contract" since no contract was provided as competent evidence. So no contract, no breach, its that simple.

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Show up in court and tell the Judge you have not been served.

If plaintiff can't produce a hard copy of a contractual agreement bearing your signature than there is no "breach of contract" since no contract was provided as competent evidence. So no contract, no breach, its that simple.

That's not true. Contracts come in more forms than just a piece of paper with some terms and signatures. They need to show that the OP agreed to their terms, and they can do that without a signature bearing contract. Offer, acceptance and consideration.

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I think he was referring to the specific cause of action. They did not use account stated. Some states require that the alleged contract be attached to the complaint. If there is no contract provided, how do you establish breach? How does the court even know there was a contract to breach in the first place? Take our word for it again? Sure, I'll believe a collection agency lawyer all day long. They never lie.

Actually, the MO rules are fairly easy to decipher. I found this rule which seems to apply:

55.22. Pleading Written Instrument

When a claim or defense is founded upon a written instrument, the same may be pleaded according to legal effect, or may be recited at length in the pleading, or a copy may be attached to the pleading as an exhibit.

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