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Summons and Complaint served at wrong address, days left to reply or default


skyler
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1. Who is the named plaintiff in the suit?

FIA Card Services N.A.

 

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

Nelson & Kennard (Sacramento, CA)

 

3. How much are you being sued for?

$11,396.26

 

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

Bank of America/FIA Card Services

 

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

Summons and Complaint substitute served, I believe, improperly or, at least, unprofessionally (see next question)

 

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

The following process: 

 

A. Generic Civil Filing (no fee) filed January 12, 2012 w/Superior Court - attempted service at Address#1, former landlord informed the process server that I no longer resided there, which is true, as I haven't lived there since Aug 2011

 

B. Generic Civil Filing (no fee) filed February 29, 2012 w/Superior Court - attempted service at Address#2, server reported that address was vacant, interor was being painted, and there was no furniture inside, which is false because I lived at Address#2 on the date of the alleged service and the house wasn't under construction nor was it vacant or without furniture, plus they couldn't have confirmed this anyway because all windows revealing the interior of home are at the second level of the property, not street level, and from street level, furniture was definitely visible without effort in the front second story windows, plus my co-residents were home on the alleged date and time of attempted service

 

C. Declaration filed November 30, 2012 w/Superior Court - attempted service at Address#2 again, again reported that property at address was vacant, again this is a false statement, and this time I know I was home at the alleged time of attempted service, I'm pretty sure they had the wrong address the whole time despite having the right address in the filed documentats

 

D. Proof of Service of Summons and Complaint filed December 27, 2012 w/Superior Court - substitute service was allegedly completed at Address#1 (again) the day before Christmas Eve, the POS states that the summons and complaint were served on a "John Doe" at Address#1 who doesn't resemble anyone who lives there, despite the fact that the previous Generic Civil Filing (no fee) filed January 12, 2012 states that they were informed that I no longer resided at Address#1 and my credit report reflects this; I only know all of this was filed because they mailed an unmarked copy of the Summons and Complaint to Address#1 (where no one recalls having been served the papers at all), and previous landlord delivered it to me a few days ago with the rest of my incorrectly addressed mail

 

I only found out about the lawsuit because my former landlord was kind enough to bring me my mail when he was in the area of my new home (in a different city). I haven't lived at Address#1 since August 2011 and there is no reason a process server would believe that Address#1 is my "usual abode" because the plaintiff's attorneys were already informed that it wasn't according to Generic Civil Filing (no fee) filed January 12, 2012. If not for my landlord and the post office, I never would have known I was even being sued. 

 

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

No, I don't believe it was in that they obviously were negligently trying to serve the wrong residence (for Address#2 where I was currently living) or not showing up at all, and they finally substitute served the papers to someone unaffiliated with myself or my former home whom I didn't know and of whom they had no name and a generic description (falsified papers by process servers who wanted to get paid? only conjecture; I know it's happened to others), despite having already been informed that I moved. If you know I don't live there, you find my new address, why would you try to serve papers at old address again?

 

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

When I missed the first payment (around 9/2010), BofA called, I told them I was out of job like so many other people in the U.S., and that I would take up payments again as soon as I was employed. I realize this was a far-out reply, but I was desperate not to hurt my credit. Of course, the woman on the phone told me that I needed to make a payment immediately, as in, in the next 48 hours--which was impossible since I was living off my fiancee's $10/hour job and had no income.

 

By the time that I found a job, I had already received a letter from BofA telling me not to pay on the account anymore. If I received calls, I didn't answer because I don't answer blocked numbers/private numbers/or numbers I don't recognize. I recall one phone call that occurred while I was asleep early in the morning, but I was still asleep when I answered (not a morning person...) and hung up when they mentioned debt -- this might have been a dream... No messages were ever left regarding this debt despite plenty of opportunity to do so and my voicemail message clearly stating the number and voicemailbox were mine. 

 

9. What state and county do you live in?

Berkeley, CA (lived in San Francisco when the suit was originally filed, so it's being handled by Superior Court of San Francisco County)

 

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

9/2010, approx. so it's within the statute of limitations

 

11. What is the SOL on the debt? 

4 years in California

 

12. What is the status of your case?

Plaintiff filed Summons and Complaint December 19, 2011. First attempt to serve 12/23/2011, POS states substitute served one year later 12/23/2012 (POS filed 12/27/2012), and I received the Complaint in the mail via landlord personal delivery 1/24/2013. I'm trying to figure out what to do, as I'm really close to the deadline to answer (40 days if substitute served).

 

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

I don't recall; I don't believe that I have. I don't know if it's truly my debt. I had a BofA card default, but I don't know the balance and would like them to confirm this.

 

14. Did you request debt validation before the suit was filed?

No. And I don't know if the plaintiff has the correct account, balance, documentation, etc. It could be a name and an approximate balance in a spreadsheet. (MBNA/FIA/BofA have admitted to owning and selling many accounts with "approximate" balances and unknown statuses.) 

 

15. How long do you have to respond to the suit?

I don't know. Possibly as little as 5-6 days?? (Proof of Service states served 12/23/2012, I received 1/24/2013 via serendipity, day 40 would be Feb 1?) I did find this in another thread, does it mean I have more time than I thought? Per California Code of Civil Procedure, Section 415.20: "Service of a summons in this manner is deemed complete on the 10th day after the mailing." 

 

16. What evidence did they send with the summons?

No account numbers or documentation, only a dollar amount and a "verification" page stating that they were representing FIA and the venue was chosen because I lived in San Francisco at the time of the initial filing.

 

17. Special information?

The Summons and Complaint were addressed to a name I used to use, not my current name, which I had legally changed in the same Superior Court 6 months before the Summons and Complaint were filed (after a divorce). Apparently the attorneys didn't do any homework. I know it can't get thrown out for this, but at least I know they're lazy?

 

If it really is my BofA card (probably will be, I just want to see the proof before assuming), I got it at age 16 (did not lie about age, they issued it despite my age) and paid it off each month for about 11 years. It had something like a 27.9% rate, which I repeatedly contacted them to lower and was told they couldn't do that and no credit card issuer can do that. So I just continued paying it off regularly since credit cards are so necessary in today's society (hard to rent without, etc.). Then, the recession hit, my pay got cut repeatedly, and I had to rely on it more heavily to pay normal bills that I was originally paying from my paychecks. Then I got divorced and was kicked out of my house by court order, so I had nowhere to live (and a job at which I was making less than when I started 6 years before). I used my card to get a hotel to give me shelter during my 2 weeks notice for work and purchased plane tickets to San Francisco to live with my now fiancee and job search. It took two months two find a job, during which I missed my first payment. I couldn't claim unemployment since I quit on my own (they were pushing people out by lowering our pay until we quit rather than laying us off). 

 

:( I didn't intend for this to happen (I doubt many people do), and I feel pretty ashamed about it. And the Summon & Complaint barely got to me in time for me to respond, so I'm really upset with the whole thing. I'm still not sure why they had trouble finding me; I certainly wasn't hiding from anyone. 

 

Since FIA Card Services is the OC, I don't think I can "beat" them or anything (I'm sure they can print every bill ever), but I'd at least like to know for sure that it's mine and they have right to receive payment before negotiating any kind of settlement. And I want to avoid a default judgement due to not replying to the Complaint, but I don't have any money to pay for filing an Answer (though my income is likely too high to get a fee waiver--it's just all going to other debts to keep them from going under, too, I'm paying a lot down that I inherited in the divorce). 

 

Any suggestions? I don't think I have grounds to defend myself, but I don't want to get a default judgement... :( I'm unsure as to what the best next step would be. Should I contact them to negotiate a settlement? I haven't done DV, but now that it's in a lawsuit, that would have to be part of discovery, right? But I can't do discovery without filing an answer, and I can't file an answer without $370...

 

It's really overwhelming. I'm trying to remind myself that this is not the end of the world. If I can clarify anything, I certainly will. (Spent about 15 hours reading forums here and on one other website, both were super insightful.)

 

Thanks for taking the time to read this.
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I'm fairly certain that collection cases are required to be served within 180 days in our state, so I'm confused without even taking the 'service' they attempted into consideration.

I'll attempt to find the relevant CCP. Your story is interesting and I am anxious to see what a more sage member will say.

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"2013 California Rules of Court

Rule 3.740. Collections

A collections case is exempt from:

(1)The time-for-service requirement of rule 3.110(B); and

(2)The case management rules that apply to all general civil cases under rules 3.712-3.715 and 3.721-3.730, unless a defendant files a responsive pleading.

(d) Time for service

The complaint in a collections case must be served on all named defendants, and proofs of service on those defendants must be filed, or the plaintiff must obtain an order for publication of the summons, within 180 days after the filing of the complaint.

(e) Effect of failure to serve within required time

If proofs of service on all defendants are not filed or the plaintiff has not obtained an order for publication of the summons within 180 days after the filing of the complaint, the court may issue an order to show cause why reasonable monetary sanctions should not be imposed. If proofs of service on all defendants are filed or an order for publication of the summons is filed at least 10 court days before the order to show cause hearing, the court must continue the hearing to 360 days after the filing of the complaint.

(f) Effect of failure to obtain default judgment within required time

If proofs of service of the complaint are filed or service by publication is made and defendants do not file responsive pleadings, the plaintiff must obtain a default judgment within 360 days after the filing of the complaint. If the plaintiff has not obtained a default judgment by that time, the court must issue an order to show cause why reasonable monetary sanctions should not be imposed. The order to show cause must be vacated if the plaintiff obtains a default judgment at least 10 court days before the order to show cause hearing."

Hope that helps some!

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First off, thanks so much for replying!! I'm definitely dealing with an area of the law I've never encountered before, so every little bit helps! /nervous

 

The quoted bits of the law above might explain what some of the things I'm unfamiliar with mean in my file. There are several "order to show cause" entries in the list. The entries for my case on the Superior Court website: 

  • DEC-19-2011 COMPLAINT
  • DEC-19-2011 DECLARATION
  • JAN-12-2012 GENERIC CIVIL FILING (NO FEE)
  • FEB-29-2012 GENERIC CIVIL FILING (NO FEE)
  • JUN-26-2012 Order To Show Cause
  • OCT-11-2012 Continued Order to Show Cause
  • NOV-30-2012 DECLARATION
  • DEC-21-2012 Continued Order to Show Cause
  • DEC-27-2012 PROOF OF SERVICE OF SUMMONS AND COMPLAINT
  • DEC-31-2012 DECLARATION 
Do the various orders to show cause represent times they've gone to court and asked extensions to find me? How many attempts are they allowed to make?

 

That last declaration is the Declaration in Opposition to Show Cause stating that they had been trying with due diligence to reach me, etc. And the finally posted Proof of Service is so weird...the fact that the house I actually lived in was repeatedly found "vacant" and under construction?? (No.)

 

Because of all of the Order to Show Cause/Continued Order to Show Cause entries, does this mean the rules above about days allowed don't count, or are they still bound by them? Legalese is definitely not my area (lol, and neither is math). I found a cool site for calculating days from one date to another that might help a little -- http://www.convertunits.com/dates/

 

Thanks for everything so far!
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Also, the Continued Order to Show Cause on 12-21-2012 reads as follows: 

 

"The Jan 06 2012 Order to Show Cause is canceled. You are hereby ordered to appear on Mar 12 2013 at 10:30am pursuant to local rule 3.0 C to show cause why this action should not be dismissed or why sanctions should not be imposed for failure to:
 
file proof of service on defendant(s) and obtain answer(s), or enter default(s)
 
CRC 3.110(i) requires that responsive papers to an order to show cause must be filed and served at least 5 calendar days before the hearing. 
 
It's dated Dec-21-2012 (2 days before the supposed service of the summons and complaint), and it's followed by the Proof of Service and declaration by the plaintiffs asking the judge not to sanction them and promising to dismiss the case if they couldn't find me before the next hearing date. -_-;;
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Motion to quash service of summons. you have to pay the fee for that in cash to avoid them saying you submitt to the courts jurisdiction. also tell the judge that these pprocess servers are the biggest liars you know. and where is the GPS data their website says.

 

They were trying to get a default

 

anyway so Motion to quash service of summons and argue the lack of jurisdiction.

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Thanks, Seadragon, for taking the time to respond! 

 

I'll write up the motion to quash. This will at least buy me time, right, as they'll have to re-serve that papers to my new address? 

 

According to the fee schedule here, that will only cost $60? Or will it be $370 because it's my "first paper" filed? If it's $370 I won't be able to afford to do it. If I can't afford to file it, should I contact the lawyers and request that we meet to negotiate a settlement? Is it too late to do that outside of court? Other cases I looked at by the same lawyers showed the complaint, proof of service, notification of settlement, and then dismissal, so it seems possible? And I'm pretty sure the debt is correct and mine.

 

I'm sorry I have so many questions.

 

If I apply for a fee waiver, will I still have to pay the fee then be reimbursed after it's approved? Or, would they make me pay it at a later date if my application has been denied? The chances of it being approved are pretty low even though every cent I make goes to bills, rent, child support, or accounts I'm continuing to pay so they don't default, but if there's a delay I could scrounge up the money between the filing date and the date it's denied.

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Thanks, Seadragon, for taking the time to respond! 

 

I'll write up the motion to quash. This will at least buy me time, right, as they'll have to re-serve that papers to my new address? 

 

According to the fee schedule here, that will only cost $60? Or will it be $370 because it's my "first paper" filed? If it's $370 I won't be able to afford to do it. If I can't afford to file it, should I contact the lawyers and request that we meet to negotiate a settlement? Is it too late to do that outside of court? Other cases I looked at by the same lawyers showed the complaint, proof of service, notification of settlement, and then dismissal, so it seems possible? And I'm pretty sure the debt is correct and mine.

 

I'm sorry I have so many questions.

 

If I apply for a fee waiver, will I still have to pay the fee then be reimbursed after it's approved? Or, would they make me pay it at a later date if my application has been denied? The chances of it being approved are pretty low even though every cent I make goes to bills, rent, child support, or accounts I'm continuing to pay so they don't default, but if there's a delay I could scrounge up the money between the filing date and the date it's denied.

no worries pm me an email I have an example of a good motion to quash.

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How fee waivers work in my court is if your income is below the listed amount, the clerk grants the waiver right then and there. If it is over by any amount, the judge has to approve it but you are still able to file the papers without paying up front. In the event you are denied, they will notify you by mail. You will be required to pay your fees then.

 

Make sure you have the original and two copies with you when you turn in the waivers. You need FW-001 http://www.courts.ca.gov/documents/fw001.pdf in addition to FW-003 http://www.courts.ca.gov/documents/fw003.pdf

 

Also, I recently filed a motion rather than an answer and I was only required to pay the cost of the motion, $90 in my court where motion filing cost $60 and the court reporter fee is $30. 


You may need to call the clerk to schedule the motion hearing and add that to your Notice of Motion and Motion to Quash Summons prior to filing.

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Thanks, guys! This is good to know! I found a friend (best friend ever, seriously) who will loan me the money for the filing fee so that I don't have to get the waiver and worry about jurisdiction issues biting my butt later. Hopefully you're right, Seadragon, and the filing fee is all that's required, but this way I'll be prepared either way. I've contacted a lawyer, so hopefully I'll hear back tomorrow; it would help my nerves quite a bit to have someone else handling the legal intricacies of the case. Your insights have been really helpful so far, everyone, so thanks very much!

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So, as it stands, I'll be meeting with my (shiny new) lawyer on Saturday to draw up an Answer and Cross-complaint. Thanks for your suggestions and feedback everyone! You guys helped me stop having a panic attack and start finding a course of action. It only takes a second to reply to someone on the forum, but it really means a lot to them when you do. :) 

 

I'll keep you up-to-date on things moving forward, and anything I learn along the way that might help someone else, too!

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