Sued But Not Served - Should I Still Go to Court?

[rcb]

Recently got an alarming harrassment letter in the mail informing me that I'm being sued and I better act fast. Looked my name up in Maryland court system and I am in fact being sued by a law firm for an account that was closed by the bank without notice or reason in Spring 2008. According to the court file, the plaintiff has been notified by the courts that someone attempted to serve me but were unable to do so -- and yet the case is still marked active with a trial date set for next week.

At this point, should I go to the trial if I've not been served and try to make my defense? Or will the case be thrown out? Or will it be an automatic judgement against me if I don't show?

This account in question is time-barred and Maryland's SOL is in effect. I can bring my credit report to attest I've made no payments/actions on the account since the bank closed it in Spring 2008. But should I appear in court if I've not been served yet? I really don't know what to do and I don't want to risk losing automatically because I failed to appear.

I also fear that the harrassing letter I received after the plaintiff failed to have me served is in fact from the plaintiff trying to scare me into paying the debt (and I've never received an initial letter from the plaintiff giving me 30 days to dispute the debt - because I would have claimed SOL at the time if they had). The letter is from a PO box and the company name doesn't appear to be real. Not sure I can prove it's the plaintiff trying to harrass me, but if it is them, isn't it illegal for them to do so?

All help appreciated - thanks.

Edited March 22, 2012 by rcb

[rcb]

Help? Anybody?

[debtorshusband]

There are law firms that look at court documents being filed, then send out letters to defendants saying "You're being sued. Hire us to represent you." It's debt collection's version of ambulance chasing. If such a letter came from the plaintiff's attorney, it's probably illegal, but it's hard to say for sure without seing the actual letter, and it sounds like it might be hard to prove who it's from.

Now, each state does things differently. But if everything's on the up-and-up, what would happen here in California is that at that first hearing the judge would ask why defendant has not been served, plaintiff would say are trying but need more time, and the judge would probably grant them at least one extension to perform service. If they continue to be unsuccessful in serving you, at some point the case will be dismissed.

The danger is if things are not on the up-and-up; if they claim they have served you, and then they move toward a Default Judgment.

One thing you could do is stay home and wait things out, hoping things are on the up-and-up.

However, since you are sure the SOL has expired, you don't need to fear court as much as most people. So you could go to court, sit in the back, and keep and eye on what happens, and jump up if any hanky-panky gets pulled.

And obviously the third thing is to step up from the beginning, explain how you came to be there even though you haven't been served. What's likely to happen is the judge with then direct the plaintiff to serve you.

One thing you need to understand is that the court system is a slow grind, at least in California it it is. They're not going to throw the case out or grant a judgment against you at the first meeting. If you speak up, they're not going to listen to what you have to say. They'll schedule that for later.

Good luck.

DH

Edited March 22, 2012 by debtorshusband

[Cady]

Does the site say anything about not being able to serve the defendent or if an answer was received.. or something along those lines?....

I mean on the court website where you enter in the case number.... if it dosn't say anything about you being served, you should be okay...

Edited March 22, 2012 by Cady

[legaleagle]

You should go to the court clerk and ask for copies of the file. You apparently were not properly served. We need a lot more info than this, once you find out who is suing post everything here. At any rate, do not fail to attend that hearing. You can tell the judge what happened and you will most likely get an extension to fix this. We need to see the complaint, type it here, take out your name and change the amount slightly. The letter would be interesting to see, do the same thing. Start reading your rules of procedure so you can defend this.

[rcb]

Thanks. Very good info so far. I was going to post a screenshot link to the electronic court file but my site permissions are too low to do that. I will tell you that noted at the bottom in the Case History information was the following:

Type: Initial Case Filing

Date: 1/17/2012

Complaint No.: (blank)

Comment: Initial Affidavit Case Filing

________

Type: Trial

Date: 1/20/2012

Complaint No.: (blank)

Comment: Notice of Initial Trial (ATP)-D1

_________

Type: Service

Complaint No.: 001

Date: 1/20/2012

Comment: NOTICE of INITIAL TRIAL (ATP)-D1

_________

Type: Not Served Reason Comments

Complaint No.: 001

Date: 2/19/12

Comment: Defendant Unknown

_________

Type: Notice Sent

Complaint No.: 001

Date: 2/28/12

Comment: Notice of Outcome of Original Service (ATP)-A1

The attorney's firm for the plaintiff is Rubenstein & Cogan. FIA Card Services, N.A. is identified as the plaintiff.

Now when I got the nasty letter alerting me to the suit (it came from Court Mediation and Negotiations, Inc. in Bel Air Maryland), I immediately called the Court and spoke to the clerk who pulled up my electronic court record and told me the case can't proceed until I'm properly served and that I should just sit tight and wait to be served at my home. I thought the advice odd but figured the court date would change in the system in lieu of my not being served but it hasn't yet. I'm guessing the judge has to hear in court that I wasn't served before they can reschedule the court date?

I'm also surprised I never got a written notice giving me 30 days to refute the debt was mine in the first place. If I had, I would have written back and requested debt validation and advised them that SOL was in effect. Can this suit even proceed if I wasn't contacted in writing and given the chance to refute/verify the debt before the attorney/FIA filed with the court?

What do you think? Still go to court next week and step forward to be served on the spot and make my SOL defense another day? Or don't bother going at all and wait to be served at home?

I think my credit report will be sufficient to prove SOL, although it shows recurring activity over the subsequent 12 month period after the bank closed the account without notice/reason in April 2008. I made no payments nor had any contact with the bank since they closed the account in April 2008 so I can only assume that activity was late charges building on my account. If there's anything else you may think I need to support that no payments/contact was made between April 2008 and now, please let me know.

Thanks again for the input/feedback. It's helping to give me peace of mind!

Edited March 22, 2012 by rcb

[NeverServed]

GO TO COURT!

[rcb]

In preparation for my appearance in court this week, I took the weekend to look over my old bank statements and I think I goofed. BOA closed the account in April 2008, however it appears I kept make payments trying to keep up after the fact. The last time I made a payment to BOA was January 2009; and it appears they charged the account off in June 2009. There have been no charges to the account since April 2008 (other than late fees by BOA).

In Maryland, the Statute of Limitations is 3 years - but is that 3 years from the last time I made a payment to the account (January 2009) or when BOA finally charged the account off as bad debt (June 2009)?

Why do I get the sinking feeling I just lost my ironclad SOL?

Edited March 26, 2012 by rcb

[debtorshusband]

SOL's are tricky, and they vary from state to state.

The one thing I can say with confidence is that the SOL does not start when they charge off the account, June 2009 in your case.

The SOL usually begins when you go into default. That means, when a payment was due and you failed to make it. So if you made a payment in January 2009, the breach may have occurred when you failed to make your February 2009 payment, and the SOL would start running then.

However, you mentioned that BOA closed the account in April 2008. If you were in default then, the SOL COULD have started in April 2008. Here's where it gets really tricky. In some states, making any payment restarts the SOL, which means you are stuck with February 2009. But in other states, payments that don't bring the account current do not restart the SOL, and you'd be at April 2008.

Sorry, but I don't know how Maryland works, but if I had to guess, they filed when the did to get it in before the SOL expired.

If that's the case, I wouldn't go with the third option in my earlier post. I'd go with 1 or 2. You need to be properly served. I don't know why they might have trouble finding you, but if they don't serve you, the case would be dismissed. But option 2, sitting in the back to keep an eye on things, and only stepping forward if they try to railroad you, is probably the smartest move.

Good luck.

DH

[legaleagle]

If your last payment was in Jan, it looks like they may have snuck in under the wire. It's close enough, though, worth a try. File a motion to dismiss in lieu of an answer and see how it goes.

[rcb]

Thank you both for the info. As it turns out, I might still be okay.

According to the eHow website for Statute of Limitations in Maryland: "the three-year clock starts on the date that the last payment was posted to a credit card account or the date of last activity on a written contract." If that's true, then I made the last payment to BOA on January 7, 2009. Whereas, according to the court's case information, FIA's attorney filed the claim on January 17, 2012.

So it looks like FIA filed their claim 3 years and 10 days after the clock started ticking... so my ironclad 3-year SOL should still be okay.

I still intend to go to court this week regardless; maybe it's best to step forward, get served in front of the judge and request an extension to respond/file my defense? That way I can invoke the SOL and get the case dismissed with prejudice at the next appointment - or is that crazy?

Edited March 26, 2012 by rcb

[legaleagle]

By all means go to court and pitch the SOL. Their argument may be something in the cardholder agreement that defines default. That is the governing document according to them. Read up on that before you go to court.

[rcb]

By all means go to court and pitch the SOL. Their argument may be something in the cardholder agreement that defines default. That is the governing document according to them. Read up on that before you go to court.

True, but if I put forward a request to validate the debt, then the plaintiff is obligated to produce the original cardholder agreement that was in place when the card/account was first issued, correct?

My understanding is that most banks/debt collectors can't produce a "stale" cardholder agreement that's several years old and the court won't accept a substitute agreement issued "recently" rather than the original source document issued at the time the account was opened, in which case the court is likely to dismiss the suit for lack of documentation. Or is this a fallacy?

Thanks for all the feedback, btw. It's *really* appreciated!

Edited March 26, 2012 by rcb

[legaleagle]

You aren't requesting validation of the debt. The SOL is statutory. Either they satisfied the requiement or they didn't. Leave it up to the judge.

Edited March 27, 2012 by legaleagle

[debtorshusband]

rcb,

I think you've gone off on a tangent a little bit.

If (when) you go to court, all you're going to do is sit in the back and watch and listen. Hopefully, what you will hear is the plaintiff's attorney say that the defendant has not been served yet, and they need more time, and the judge grants them more time. (Probably too much to hope for that the judge will dismiss the case for failing to serve the summons in a timely manner). Then you smile and go home and wait some more, but keep you eye on the case documents so you don't get ambushed.

If the plaintiff's attorney claims you have been served, you speak up. You politely ask permission to approach the bench. You explain that you are the person listed in the complaint but you have not been served, and you are only there because you became aware of the suit via that letter from the ambulance chasers. Then you do whatever the judge says. He may ask you to verify your address, he may allow the plaintiff's attorney to serve you there, I don't know. But that's all. This is not the time to argue about the SOL or anything else. That begins when you formally file your Answer to the Complaint.

Good luck.

DH

[rcb]

Thanks. I'll do just as you suggest.

[legaleagle]

The problem with that is the clerk will call all the cases, both names, before the proceedings start. XXX Bank v. Joe Smith etc. You have to stand up and let them know you are there. Later, the judge will come in and the cases will start. Making an issue of service is moot at that point, by showing up you have acknowledged the suit. I'd suggest filing the motion to dismiss now, that way the judge knows ahead of time what the first issue is. That avoids a postponement.

[rcb]

As it turns out, the case never happened. It wasn't even on the docket the day it was scheduled to happen in court - which surprised me when I showed up and attempted to sign in.

In Maryland, if the plaintiff fails to serve the defendent properly, and the court was notified that the plaintiff failed to do so, then the court won't hear the case which is exactly what happened here. According to the clerk's office, the plaintiff has one year to request an extension because the original request to serve has expired. If they fail to take any further action, the suit will be dropped in a year's time.

Not quite the resolution I was expecting but I'll work with it (and vigilantly keep watch over the next year).

[debtorshusband]

It sounds like things went exactly the way they should have, but there's no harm in trying to prepare for the unexpected.

Hope things work out in the long run.

Regards,

DH