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Recieved summons for student loan


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My wife has a student loan she acquired with her now ex husband (he was the co-signer) back in 2007. About a year ago, law firm started calling constantly trying to get her to pay on the loan. She set up a payment plan with them and was making her regular monthly payments.

About 6 months ago law firm started saying they were not receiving her payments (made thru their "make a payment" section on their website), even tho our bank statements showed the payments going thru. They also stopped sending her updated statements of her debt. After going around in circles with a representative there, we stopped making the payments, altho this was not the right thing to do, at the time we felt there was no sense in giving our money to a company that was not applying it to the debt. Requests for updated statements indicating amount owed, interest rate, and history of payments were ignored.

Two weeks ago we started getting phone calls from restricted numbers asking for "Jessica", when my wife told the caller she was not Jessica, they would demand to know who she is. This continued for about 5 days, receiving 3-4 calls a day just like this. I finally got on the phone and told them there was no Jessica, and the guy on the phone immediately denied he was calling for Jessica and said "I'm calling for (my wife's name). I know shes there, stop playing games bro and put her on the phone."

I told him when he would call from a non-restricted number, tell us who he is, who he is calling for, and from where he is calling we would not speak to him. He called back telling us he was from law firm, that her ex husband was being sued, and if she didn't want to be sued as well she "better call him back." We attempted to make contact with the agency to work with a different person, but nothing came of it.

Her ex husband was served with papers 4 days ago, naming both him and my wife as the defendants in the lawsuit. We have yet to have papers served to my wife. We do not have the money for an attourney, and are not disputing the debt owed. Our problem is we do not have the money needed to settle the case, and the collection agency is asking for more than we have to "cancel" the lawsuit and return to making payments.

We do not want to ignore the summons and get a default judgment, but have no idea on how to answer this. There is no information on the summons about when or where the court date is.

Our biggest concern is that our bank account will be frozen. It is a joint account and my workers comp. checks are direct deposit, as well as my wife's paychecks. If this happens, we will end up literally living on the street with our 4 year old daughter.

Please help, or send guidance.

TYIA

additional info:

The paperwork we have is photocopies given to us by my wife's ex husband. It is missing several pages, including when and where to appear for the court date, as well as the amount that will be claimed if a judgement is entered. Since we have not received the summons ourselves, are we still bound to the 30 days from filing date shown on the summons?

Edited by Stuckinlimbo
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If she files one, and he doesnt, do both get a default judgement entered?

How do we go about filing an answer? I found the form online, but I have no clue on how to word it or what information to put down. Would it be best to just go to the self-help center we have here?

Like I said, she is not disputing the debt, we just are trying to find a way to keep a default judgment from being entered and bank account frozen.

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What is your defense? Student loans are hard to defend against, there usually is no viable defense. If they do get a judgment, it will be against both of you, probably jointly and severally, which means they'll try to collect the full amount from either one of you. They can levy bank accounts and garnish your wages. The only way to avoid this is to work out some sort of repayment plan you can afford.

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We have tried to work out a payment plan. The rep we talked to told us that we would have to make a "several thousand dollar" payment in order to have a payment plan set up. When we said we do not have that kind of money, he said "well maybe if you pay $500 which is what the filing fee was they might consider setting up a payment plan."

As I said, we are not contesting the debt, or trying to get out of it, we are just trying to find out what if anything can be done to prevent the freezing of our bank account.

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We do not want to ignore the summons and get a default judgment, but have no idea on how to answer this. There is no information on the summons about when or where the court date is.

First, until your wife is served, she doesn't need to file an Answer. This is especially true since your wife is now divorced from her ex-husband and they live in different households. (Or am I jumping to conclusions, and you all live together in a commune or something?)

Once your wife is served, she will have 30 days to Answer from when she is served, and she will be on the court's mailing list for court notices. It will be several months before the first court conference. And that's what it is: a conference, not a trial. At the first conference, the judge will only want to know if the parties have been served. Unless they get your wife served before then, it could get a little sticky if only one party has been served. I'm not sure if it will proceed against the ex, or if it will be stalled until she is served.

Our biggest concern is that our bank account will be frozen. It is a joint account and my workers comp. checks are direct deposit, as well as my wife's paychecks.

They won't be able to freeze your bank account until they win their judgment, AND the court grants them the right to levy your bank account. And that will take at least a year. And you will be able to fight that because this debt is clearly your wife's separate debt from before your marriage, and you have no obligation to pay it, so they shouldn't be able to go after community assets. They can only go after her separate property and her share of the community assets. And, worker's comp checks may be exempt from levy. This would get sticky as well. They are far more likely to try to garnish your wife's paychecks than go after your joint bank account, not that that's a desirable outcome, either. (PS calawyer may be able to provide more authoritative opinions on this.)

Finally, these guys are really jerking you around. They're even lying to you about the filing fees. It's $225 for under $10,000, $370 for $10K to $25K, and $395 for over $25K. So no way is it $500.

I'm not sure you did the wrong thing by stopping payment. You've got the money, which means you've got the power. You give them the money, and you lose the power. If they claim they're not getting the payments, and then they refuse to send an accounting of what's been received and what the balance is, they deserve to be cut off. It may be to your advantage to have this decided in court. After telling the court what went on, the judge may order a payment plan than is reasonable for you, or at the very least, you may have the opportunity to negotiate a settlement with someone from the other side who isn't a (expletive deleted). Just remember, YOU dictate the terms that you want. They have no power. If they don't accept your terms, they get nothing.

Good luck.

DH

Edited by debtorshusband
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Update:

Unfortunately I do not have enough proof to go after them for a countersuit. I do however have some other things in the works, Just need some time.

According to the court records online, they filed proof of service yesterday. Does the 30 day time frame to file an answer before they can ask for a default judgement start on the day they file proof of service?

Also, my paranoid mind is wondering if an admin can remove the name of the CA from the thread title for me :)

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Guest usctrojanalum

date of filing does not equal date of service. In NY, process servers are allowed 4 months to serve a summons and complaint. And humans are in my belief lazy by nature. If there is a law that says you have 4 months to do something, people do not rush out and do it in the first week.

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What does the law say about service by mail to an old address? We moved in the middle of last month, and have mail forwarding set up.

There is a page titled "Declaration Re Venue Limited Civil Case" that says "This action is filed in this district because the defendant is an individual who resides at (old address)..."

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According to the court records online, they filed proof of service yesterday. Does the 30 day time frame to file an answer before they can ask for a default judgement start on the day they file proof of service?

Who do they claim to have served? A defendant has 30 days from the date they were served, not from when they filed the Proof of Service. They may take days or weeks before they get around to filing the PoS, but that doesn't affect anything.

Here are the rules of service for California. There are two most commonly used ways.

1. Personal Service. Process server gives Summons and Complaint directly to the individual. If more than one person is being sued, each must be served separately.

2. Substitute Service. Process server give Summons and Complaint to a responsible adult at the individual's residence or place of employment. Then he must follow up by mailing a copy to the individual at their home address.

If the ex only got a copy in the mail, they are probably using Substitute service on him, which raises the question, "Who was handed the papers?"

It may make things smoother in the long run for you to call the plaintiff's attorney, tell them you have become aware of the lawsuit, and arrange for them to serve you the papers.

Regards,

DH

Edited by debtorshusband
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Some good news, we are having our second meeting with a lawyer soon, lets just say the CA's method of serving my wife, or lack of serving her, then filing a proof of service is raising red flags. We will be making a trip to the records department on Monday to get copies of the proof of service. Unfortunately there is no way to view the filed papers online at this moment.

Either way it ends up, we have things in motion that will at the very least give us some breathing room and get this whole mess cleared up.

Will elaborate further later this week!

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"Chaos would result if the legal community could not depend on the truthfulness of declarations of service of process. Public policy requires that it be regarded as serious, with consequences sufficiently adverse to act as deterrence . . . . Service of process is the means by which a court having jurisdiction over the subject matter asserts its jurisdiction over the party and brings home to him reasonable notice of the action. It is an indispensable element of due process of law." Kappel v. Bartlett (1988

The Legislature, recognizing the importance of [their] function, has subjected process servers to regulation in the Business and Professions Code section 22350 et seq." Kappel, 200 Cal. App.3d at 1464. Process servers are required to file a registration certificate in order to regularly serve process. Bus. & Prof. Code 22350. That "certificate of registration may be revoked or suspended whenever it has been determined that the registrant has made a service of process, including service completed by an employee or independent contractor of the registrant which does not comply with the provisions of law governing the service of process in this state or constitutes an improper service of process not amounting to a violation of law." Bus. & Prof. Code 22358.

Vicarious liability for an individual process server's misdeeds is legislatively mandated: "A registrant shall be responsible at all times for the good conduct of his or her employees acting within the course or scope of their employment, and any person acting as an independent contractor within the course or scope of the agency relationship with the registrant." Bus. & Prof. Code 22356.

Abuse of Process

An action for abuse of process is a cause of action "long recognized at common law but infrequently utilized." Kappel, 200 Cal. App.3d at 1463. "To establish a cause of action for abuse of process, a plaintiff must plead two essential elements: that the defendant (1) entertained an ulterior motive in using the process and (2) committed a wilful act in a wrongful manner." Coleman v. Gulf Ins. Group, (1986) 41 Cal.3d 782, 792, 226 Cal. Rptr. 90.

The requirements to prove an ulterior motive differ in the case law. Some collateral, illegal objection in executing a false declaration would suffice. Golden v. Dungan (1971) 20 Cal. App.3d 295, 97 Cal. Rptr. 577. However, malice or an ulterior motive may be "inferred from the wilful abuse of the process." Tranchina v. Arcinas (1947) 78 Cal. App.2d 522, 526, 178 P.2d 65; 5 Witkin, Summary of Cal. Law (9th ed. 1988), 463, et seq., p. 550.

The court in Kappel was faced with a "civil matter [which] proceeded to judgment by default, however, because the process server entrusted to serve the summons and complaint allegedly did not do so, yet falsely executed a declaration that he did." Id. at 1463. Upon this basis, and the policies set forth above, the court approved the application of the abuse of process cause of action to the situation where a process server falsely executes a proof of service. Id.

A false, fraudulent, or perjurious declaration of service of process misuses "the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice." Meadows v. Bakersfield Savings & Loan Assoc., (1967) 250 Cal. App.2d 749, 753, 59 Cal. Rptr. 34, 37. Because the process server acts with the imprimatur of the court, his misconduct cannot be tolerated.

Negligence and Infliction of Emotional Distress

"There might be circumstances short of a knowing execution of a false declaration of service where, due to lack of care in service of process, a party injured thereby could state a cause of action for negligence or negligent infliction of emotional distress." Kappel, 200 Cal. App.3d 1467. In Slaughter v. Legal Process & Courier Service (1984) 162 Cal. App.3d 1236, 1249, 209 Cal. Rptr. 189, the court reasoned:

It is foreseeable that improper service of process, combined with subsequent falsification of an affidavit, could result in a default judgment against the person served and in emotional as well as financial injury to him. In addition, the policy of encouraging process servers to perform their function responsibly is a found one, justifying imposition of a legal duty of care towards the individual being served. The judicial system relies upon process servers to ensure that the due process rights of a defendant are protected, and potentially severe consequences are likely to result for a defendant when a process server does not perform his task as prescribed by law.

Most people consider claims for infliction of emotional distress in the context of witnessing a family member suffer injury, like being hit by a car. However, the requirement that the injured party be contemporaneously aware of the negligence of the person causing that injury has long been discarded. See Mobaldi v. Board of Regents (1976) 55 Cal. App.3d 573, 583, 126 Cal. Rptr. 720, disapproved on other grounds by Baxter v. Superior Court (1976) 19 Cal.3d 461, 138 Cal. Rptr. 315, and Elden v. Sheldon (1988) 46 Cal.3d 267, 250 Cal. Rptr. 254. Therefore, learning of the entry of defaults days or months after the process server's fraud will not defeat the claim for infliction of emotional distress.

Civil Code Section 3294 allows the recovery of punitive damages upon any obligation not arising from contract where it is "proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice." California Civil Code Section 1427 explains that "An obligation is a legal duty, by which a person is bound to do or not do a certain thing." Under Section 1428, such an obligation can arise from a contract or by operation of law. "An obligation arising from operation of law may be enforced in a manner provided by law, or by civil action or proceeding." Id. The process server's duty to act carefully is thus created both by common law and by the above-referenced provisions of the Business & Professions Code.

The depravity of the process server's misconduct fulfills all the requirements for the penalty of exemplary damages. The intentionally false process server could readily be found guilty of malice, fraud or oppression in the exercise of his sole duty - the truthful service of process. See Cal. Code Civ. Proc. 3294©, BAJI 14.71.

The Resulting Judgment Is Easily Enforced

The statutory duties imposed on registered process servers include posting a bond to serve as a fund for their misdeeds which cause damage. Bus. & Prof. Code 22353. Business and Professions Code Section 22357(a) specifically provides, "Any person who recovers damages in any action or proceeding for injuries caused by a service of process which was made by a registrant and did not comply with the provisions of law governing service of process in this state may recover the amount of the damages from the bond required by Section 22353." Section 22353 requires a surety bond in the amount of $2,000. Therefore, the first $2,000 of the client's costs can be easily recouped, perhaps in a small claims action.

Edited by BTO429
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