RangerGD

I appeared Pro Se but Plaintiff claims I didn't answer

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I received a "summons" back in April from a law firm here in Washington State representing a creditor located out of state. I responded to the summons within the 20 day time frame by mailing (certified) the law firm a Notice of Pro Se appearance. I did not "answer" the summons as the law firm appeared to have only prepared a pleading, but did not file it with the courts. (I assume this was some kind of a scare tactic on their part?)

I have now received a notice from the superior court for a Motion Order of Default. The law firm apparently just filed their pleading on 8/31. In their pleading they state that I and my wife whom they have named as Jane Doe XXXX appeared, but did not answer therefore, they are seeking a summary judgement without oral arguments. The pleading also states that I appeared via telephone, which is not the case.

It looks like the court set a trial date of 1/6/13, but also has a date of 9/19/12 listed and "without oral arguments" checked.

My questions are as follows:

1. I'm assuming that since the plaintiff has now filed a formal motion that I can (and should) file an answer/motion with the court? Before 9/19?

2. In addition to a number of defenses, are there any arguments worth noting to the plaintiff's accuracy since they indicate I appeared via telephone when it was by mail and that my wife's name is certainly not Jane Doe XXXX?

Thanks for responding.

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First, this is called pocket service, or it is very similar to pocket service. Only a few states allow this kind of stuff, and yours is one of them.

Second, you absolutely must respond, but since I don't have to deal with anything remotely resembling pocket service in my state, I don't know the best way to deal with this. You'll need somebody familiar with your state to help.

You are behind the curve right now. You should have been reading rules and procedures for your state, and learning your court system. 10 hours of studying per week is what it will take you, and that's quite possibly a minimum. I spent a lot more than that, but I really wanted to win, bad.

9/19/2012 is screaming up on you. I hope, for your sake, that it's not too late to do anything about this. If it is not, I would be chomping at the bit to make it an oral hearing, even if I was unfamiliar with the laws governing the case.

Now then, there are the 20 questions that Racecar is going to post ITT, but I have a couple of my own:

1) Did you send your response to the other side CMRRR? (Certified Mail, Return Receipt Requested)

2) Have you been watching the docket for your name on a regular basis?

Whether or not all is lost is not up to me, but I will say this: If you are willing to put in 10+ hours a week, you will find all the help you could ever use here. You aren't guaranteed to win, but we'll give you the best chance possible given your situation. OTOH, if you want us to spoon feed you the answers, you will be one of those posters who disappears into the black hole of the bitter end of a judgment.

I'm not familiar with WA law, but, to the extent that it is consistent with the rest of the country, I can help. I just can't argue your case for you.

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I am not familiar with the term pocket service. What is that?

I did send my original appearance CMRRR and do have the return receipt.

I have also reviewed some of the court rules and have determined that because I did answer I am entitled to respond before judgement.

I am frustrated that the notice of hearing was not mailed out to me until 9/6 and I did not receive it until just a few days ago. I am definitely feeling the pressure.

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I am not familiar with the term pocket service. What is that?

I did send my original appearance CMRRR and do have the return receipt.

I have also reviewed some of the court rules and have determined that because I did answer I am entitled to respond before judgement.

I am frustrated that the notice of hearing was not mailed out to me until 9/6 and I did not receive it until just a few days ago. I am definitely feeling the pressure.

Pocket service is basically when a state allows a plaintiff to serve you before actually filing the complaint. There's more to it than that, but, as I said, I don't live in a state where pocket service is allowed.

As for your response, sending it CMRRR is good. You at least have proof that you sent them something. The question is how much proof, beyond PS 3811 (the green postal service card) do you have? Did you draft a response and send them a copy? Or did you send them an original? Basically, you're going to need to prove to a judge that they're pulling a fast one. The more proof you have, the better. I personally prepare a document, copy it, and that copy is what is getting sent to the other side. If I'm not keeping the original, that's because it's getting filed with the court.

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1. Who is the named plaintiff in the suit?

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

3. How much are you being sued for?

4. Who is the original creditor? (if not the Plaintiff)

5. How do you know you are being sued? (You were served, right?)

6. How were you served? (Mail, In person, Notice on door)

7. Was the service legal as required by your state?

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

9. What state and county do you live in?

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

11. What is the SOL on the debt?

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

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1. Who is the named plaintiff in the suit? Portfolio Recovery Associates LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Roger E. Rahlfs

3. How much are you being sued for? $18,312

4. Who is the original creditor? (if not the Plaintiff) Looks like Wells Fargo

5. How do you know you are being sued? (You were served, right?) Yes, served.

6. How were you served? (Mail, In person, Notice on door) In person, but person who received the service was my wife.

7. Was the service legal as required by your state? I believe so.

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Have never had any communications with Plaintiff written or verbal

9. What state and county do you live in? Washington, King

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) The summons lists 3/2009, although it would have been sometime in 2008 if this is from a previous debt.

11. What is the SOL on the debt? I believe it is 6 years in Washington state.

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Suit served, motions filed, trial date set for 1/2013, but looks like Plaintiff has a motion and order for default without oral arguments set on 9/19/12. [so I think this is my most immediate issue? Can I file an answer to the original complaint or something against this motion to prevent a summary judgement?)

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. NO

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

No interrogatory received

I received a summons and complaint on 4/2/12. As summons/complaint had not been filed with the court, I sent plaintiff a pro se notice of appearance via CMRRR within 20 days. Plaintiff received that notice on 4/11/12. The complaint that I received with the summons does not match the complaint that was filed with the court on 8/16. The original complaint named only myself as defendant, but now names myself and Jane Doe XXXX as defendants. The complaint contains the following claims:

1. Plaintiff is duly qualified to bring the action.

2. Defendants are within the court's jurisdiction.

3. Defendants are indebted to Plaintiff under terms of a written agreement and are in default of said terms.

4. Terms of written agreement allow for interest and a liability for court costs and attorney fees.

5. Demand for payment has been made and payment has not been forthcoming and is now due and owing under Defendant's agreement the sum of $18,312 as of March 27, 2009 plus interest/late charges.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Nothing was included

Edited by RangerGD
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The appearance informs the court and the other side as to who is going to defend the case.....yourself or a lawyer. Usually this has to be filed with the court as well as a copy to the plaintiff.

They are asking for a default for failure to plead. They are acknowledging that you filed your appearance, but are alleging that you never answered the complaint. Normally a failure to plead is automatically granted by the clerk of the court. You can't really object to it unless you did answer and can prove it. The next step would be to file a motion to set aside the default, and attach a copy of your answer. These are generally allowed, shouldn't be a problem. You have to have a reason, as you stated, they never filed the pleading with the court. Therefore there is nothing to default on. This should work unless your state has rules to the contrary, this is basic procedural stuff.

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I don't know in which court you're being sued, but here's a rule from the Superior Court of WA.

Washington State Court Rules : Superior Court Civil Rules

RULE 3

COMMENCEMENT OF ACTION

(a) Methods. Except as provided in rule 4.1, a civil action is

commenced by service of a copy of a summons together with a copy of a

complaint, as provided in rule 4 or by filing a complaint. Upon written

demand by any other party, the plaintiff instituting the action shall pay

the filing fee and file the summons and complaint within 14 days after

service of the demand or the service shall be void. An action shall not be

deemed commenced for the purpose of tolling any statute of limitations

except as provided in RCW 4.16.170.

If you're not in superior court, see if your court's rules require the complaint be filed within a certain amount of time after service.

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A civil action is commenced against a defendant when the summons is served upon that defendant. This is a unique procedural rule to only a couple of states. where a civil lawsuit begins with the service of the Summons and Complaint on the defendant instead of the filing of the Summons and Complaint with the court. There is not a requirement in Minnesota law that a lawsuit must be filed with the court system. This is what is known as “Pocket Service

This process known as Prejudgment Garnishment allows a creditor to garnish a

debtor’s bank accounts or wages without making a filing with the court and acquiring a judgment against the debtor. In the case of garnishing a debtor’s bank account or other financial institutions, the creditor does not even need to inform the debtor until after the bank or financial institution has received the Garnishment Summons and “frozen” the funds requested by the creditor.

Normally the Plaintiff has to send a Notice of garnishment summons and the defendant must send their objection and exemptions notice. After that the Plaintiff must file their objection to defendants exemptions and notice of hearing.

Garnishment of Financial Institutions

Garnishment Summons

In the case of a financial institution or bank funds, the garnishment process begins with the Garnishment Summons served to the financial institution. This is just opposite of garnishing wages or earnings. When a debtor’s financial institution is being garnished, the Garnishment Summons is served prior to notice being given to the debtor. The primary purpose behind this policy is not to alert the debtor to the fact that their funds are going to be

seized. Without this prior notice to the debtor, it removes the ability of the debtor to secret or remove funds before the creditor can put a claim on them.

Edited by BTO429
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I don't know in which court you're being sued, but here's a rule from the Superior Court of WA.

Washington State Court Rules : Superior Court Civil Rules

"RULE 3

COMMENCEMENT OF ACTION

(a) Methods. Except as provided in rule 4.1, a civil action is

commenced by service of a copy of a summons together with a copy of a

complaint, as provided in rule 4 or by filing a complaint. Upon written

demand by any other party, the plaintiff instituting the action shall pay

the filing fee and file the summons and complaint within 14 days after

service of the demand or the service shall be void. An action shall not be

deemed commenced for the purpose of tolling any statute of limitations

except as provided in RCW 4.16.170.

If you're not in superior court, see if your court's rules require the complaint be filed within a certain amount of time after service. "

Colorado has the same rules. check your state rules! So the law says that they can't serve you then wait til the day before you have to answer to file suit in hopes that you won't answer. Here you can't answer until they file suit so if they do it longer than 14 days after your service then the suit is void as long as you file an objection to the complaint prior to or with your answer

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I don't know in which court you're being sued, but here's a rule from the Superior Court of WA.

Washington State Court Rules : Superior Court Civil Rules

"RULE 3

COMMENCEMENT OF ACTION

(a) Methods. Except as provided in rule 4.1, a civil action is

commenced by service of a copy of a summons together with a copy of a

complaint, as provided in rule 4 or by filing a complaint. Upon written

demand by any other party, the plaintiff instituting the action shall pay

the filing fee and file the summons and complaint within 14 days after

service of the demand or the service shall be void. An action shall not be

deemed commenced for the purpose of tolling any statute of limitations

except as provided in RCW 4.16.170.

If you're not in superior court, see if your court's rules require the complaint be filed within a certain amount of time after service. "

Colorado has the same rules. check your state rules! So the law says that they can't serve you then wait til the day before you have to answer to file suit in hopes that you won't answer. Here you can't answer until they file suit so if they do it longer than 14 days after your service then the suit is void as long as you file an objection to the complaint prior to or with your answer

Here’s how it works in Washington, they serve you. You have 20 days to answer to Plaintiffs attorney, most people don't answer because it is not filed and think it’s a scare tactic.

If you do not answer they file and obtain a default and do not have to notify you of the default hearing because you didn’t answer. This is how they make their money.

The civil rule says if you demand they file, they must within 14 days of receiving said demand or service is void. I have seen case law where law firm Suttell and Hammer pocket served someone, waited over a year and filed for default.

Notice of appearance served means they have to notify you of the default hearing, but yes they are correct, you did not properly answer.

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Since my first post on this I have done a lot research and have found/done the following:

1. I filed a response and opposition to the Plaintiff's motion for default judgement explaining why I appeared, but did not answer. It included the fact that the Plaintiff had not filed the complaint at the time of the summons.

2. Second, according court rule, since I did appear and there has not been a ruling on the motion for default judgement yet, I exercised my right to provide an answer to the complaint and filed the answer shortly before I filed the response above. I also included this information in the response that an answered had been filed.

So assuming I've done those two correctly and the motion gets rejected, I am sure I will be back here with more questions/advice. Thanks again for all the information.

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Watch that docket carefully. This is really easy in Washington where you can see everything going on in a particular case at no fee. It is not unheard of where a judge sees motion for default and signs it without checking anything further. I would draft a proposed order and have it delivered to the judges clerk 3 days in advance, it would say "motion denied".

The biggest money makers in WA are the family law lawyers which this guy is. If he has to resort to JDB collections to make ends meet, then you know he is not the best. He may fold rather easy, do not let him intimidate you.

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I was served a summons that didnt have a court date and no file date. I answered (that I planned to challenge the charges against me) back to collections agency but did't send to courts , I read somewhere that if no date and file number you didnt have to send to court. Am I screwed. That was in late august and I have heard nothing.

Not sure what to do next, I have check with the court and no record of a filing. Is it unusual for them not to file, its been a month.

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I was served a summons that didnt have a court date and no file date. I answered (that I planned to challenge the charges against me) back to collections agency but did't send to courts , I read somewhere that if no date and file number you didnt have to send to court. Am I screwed. That was in late august and I have heard nothing.

Not sure what to do next, I have check with the court and no record of a filing. Is it unusual for them not to file, its been a month.

You have to check the sno court web site to find out. In my case, they didn't file to the superior court, same as yours. I answered and wait.

Today, I checked, they filed to the district court on 9-24, no court date but they didn't serve me yet.

Should I wait? Or go to district court to find out more?

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You already did reply. In Washington they can serve you without filing and you have 20 days to send a reply to the attorney that served you. Once they file with the court (like they just did) you have to file your answer at the court house.

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This is my second post--the first one seems to have disappeared. I'm a paraelgal student working on an exam.

My professor told the class that no more than 90 days can pass between serving the defendant and filing with the court, but I cannot find anything in court rules or RCW's about this.

Does anyone know about this rule? I read the comment that said a law firm got a default judgement and waited a year to file, so am confused.

Edited by caryl
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My professor told the class that no more than 90 days can pass between serving the defendant and filing with the court, but I cannot find anything in court rules or RCW's about this.

I believe this case address the issue and clears up the confusion.

LeClair v. SUTTELL AND ASSOCIATES PS

There does not seem to be any time limit on how long the plaintiff has to file with the court.

However, if they do not file within 90 days then there is no tolling in regards to the statute of limitations.

Washington Revised Code Section 4.16.170 provides:

For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first. . . . If the action is commenced by service on one or more of the defendants . . . the plaintiff shall file the summons and complaint within ninety days from the date of service. If following service, the complaint is not so filed, or following filing, service is not so made, the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations.

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