Credbust

California Summons served/received after 370 days of filing lawsuit

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I was recently served summons for a lawsuit filed by CA more than 370 days back. This is in California court in Santa Clara county. The summons I receive show the date lawsuit was filed as May'2012. The CA is Hidden Oak Group, Inc, represented by an attorney in San Francisco with P.O. Box as address.

I knew they had filed the complaint because I got unsolicited offers from other consumer law practicing legal firms informing me about the lawsuit, as usually happens. Since they never served me, I did nothing. According to California law for limited civil cases (collections) the plaintiff is suppose to serve within 180 days. I have lived in the same place for past 10 years, so they can't claim they were not able to find me.

Before they filed the lawsuit, I had sent them DV letter to which I received no response. Instead after a few months they went ahead and filed a lawsuit.

I found summons left on on my door 370 days after the case was filed.

What are my options. At first reading it appears to me that this is not valid summons since it is beyond 180 days. They also didn't respond to my DV letter which was sent within 30 days of receiving first letter from them in Jan'2012. I had asked them to cease and desist calling me on my number, yet they continue to contact me by phone for several months after receiving cease and desist + DV request. 

In Feb'2012 I had to file emergency BK petition to stop foreclosure. I didn't follow up on the BK and it was discharged after 21 days. As part of the petition I had listed all the CAs at the time. I remember receiving letter from BK court that they couldn't contact the Hidden Oak Group, Inc. Other CAs who had filed lawsuits against me in 2011, filed motions to dismiss the lawsuit without prejudice, within a month of my BK petition. Interestingly only contact information I have of the Hidden Oak group is of their attorney. There are several complaints on the net on how others have not been able to reach them on the their NY contact number.

In Summary:

1. No response to DV
2. Continued to contact me after Cease and Desist letter asking not to contact me by phone.

3. Filed lawsuit in California superior court in May'2012 but didn't serve summons in timely manner
4. The server left summons on my door with date of June'2013. The case filing date on the summons is May'2012.

Is the CA is just trying to shake me down by serving invalid summons? Or trying to avoid court sanctions nder Rule 3.740(e)?

What action can I take against the CA and its attorneys? Clearly they are in violation by not serving the summons within 180 days.

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According to California Code Rule 3.740(d) a collections case is required to be served within 180 days of filing.

 

 

Further, Rule 3.740(e) states:

 

"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."

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Same thing happened to me , Filed July last year found on drive march this year . Lawsuit had an address 7 8 years old and in a different county . I also took advice and filed a motion to dismiss ,it came back from the court with a letter saying the defendent in Ca can not have the case dismissed.

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Thanks everyone for chiming in.

 

A. What will be effect of Motion to quash?

 

  1. Even if granted the plaintiff can serve again properly  
  2. Or the plaintiff can choose to file a new lawsuit and have summons served

Doesn't seem to do much except delay the case. At least that is how I read it.

 

B. What about plaintiff violating Rule 3.740(e), which clearly requires them to serve within 180 days. It seems only the court can sanction the plaintiff. Is there any grounds that I can use against the plaintiff as result of them not compiling with Rule 3.740(e)? What is defendant's remedy, if any, when plaintiff violates the 3.740(e). It doesn't appear to me that defendant can force the court to sanction the plaintiff.

 

When I seek online information on the court website, only information I see is

 

 May'2012 - Complaint filed/Summons issue

 Jun'2012 - Cv Decl:Non-Service

 May'2013 - Cv Decl:Non-Service

 

Not sure what "Cv Decl" means. Probably it is court recording that Summons were not served or the record of servicing was not filed ?

 

 

C. Should I file a cross-complaint regarding the plaintiff filing the lawsuit 

 

        1. Without first responding to DV request 

        2. Continuing to call me on my phone despite asking them to only contact me via mail.

 

       Or does this need to be a separate lawsuit on its own ?

 

D. Is this something I should hire a law firm that promotes stopcollector.com. They claim free representation to pursue CAs that violate FDCPA ? 

 

E. As the result of I believe the plaintiff is also in violation of 

 

I did hire an attorney, who was out of school and just got his license. My attorney had completed one year internship with a local law firm that represents defendants against CAs. After paying a grand as down payment to handle two open cases then, all he did was merely file procedural paper work. In both cases plaintiffs filed motion to dismiss the case. 

 

 

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Regarding Rule 3.740(e) vs Rule 3.740(f). It seems the plaintiff must be sanctioned for the latter but only may be sanctioned for the former.

 

http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_740

 

 

(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.

 

Plaintiff has definitely not filed proof of service as per court record online. If they had, they would be in violation of Rule 3.740(e).

 

If I don't act on the summons because they are 370 days late, how can any court in right mind provide a default judgement to plaintiff that is in violation of rule 3.740(e) ? It seems to defy logic. What is the legal theory on this.

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Same thing happened to me , Filed July last year found on drive march this year . Lawsuit had an address 7 8 years old and in a different county . I also took advice and filed a motion to dismiss ,it came back from the court with a letter saying the defendent in Ca can not have the case dismissed.

 

Are you saying the court letter said that a defendant in California can not have case dismissed ? Do you mean to imply that court was saying the defendant can not seek to dismiss the case against defendant? That would be weird! 

 

I want do want to seek dismissal of this case. I just need proper legal language to do so. Is the motion for summary judgement right way to go instead of answering the complaint?

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Defendant can not seek to dismiss the case against the plaintif , that is what was stated  in the letter. As Seadragon said a motion to quash would have been in order  .

 

http://www.scscourt.org/self_help/civil/lawsuits/defendant.shtml#file

 

  • Motion to Quash Service of Summons

    This asks the Court to say that the Complaint wasn’t served properly. Say why service was not right.

     

  • Motion to Stay or Dismiss Action

    A Motion to Stay asks the Court to put the case on hold for a while, so that something else can happen. A Motion to Dismiss asks the Court to throw out your case. Say why you want this.

As per my court information website, I do have right to file a motion to dismiss. If a letter says defendant cannot seek to dismiss, the court is probably turning down the motion? 

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Well I do not know , Thats just what the letter said . There were numerous things wrong with the lawsuit wrong address , wrong county not even my account . Plus the proof of service had a false date on it , the court had no record of it being filed . But they told me that as I had answered the lawsuit they took that as proof of service .

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Credbust, don't go by what happened in Jono's case, we do not know all the particulars, or if everything was procedurally correct.  Listen to what seadragon tells you, he is very knowledgable in California law. :)

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If you filed a motion was a Judge and hearing date assigned? A clerk can't say one way or another what you can and cannot do. There has to be a signed letter fr the Judge in your case what needs to be done and a copy will also be sent to the otherside as well. So if you want to pursue a motion you will need to schedule it out and give notice at least 15court days + 5 mailing days to the otherside with proof of service or judge will deny or dismiss on technicality.

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------------------------------------------

To: Helpme and BTO429

 

I think your questions apply to Jono's case and not mine. I haven't even answered the complaint yet. 

 

--------------------------------------------

 

 

I am wondering if I should even go ahead and answer the complaint; or I should file some kind of motion to get the case dismissed. If I do on what basis do I file the motion. I know that the plaintiff is in violation of Rule 3.740(e). 

 

I can follow Seadragon's recommendation of filing motion to quash, (that might get case dismissed on technicality?) but the CA can refile the lawsuit and serve again. Isn't that  true?

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I am wondering if I should even go ahead and answer the complaint; or I should file some kind of motion to get the case dismissed. If I do on what basis do I file the motion. I know that the plaintiff is in violation of Rule 3.740(e). 

 

I can follow Seadragon's recommendation of filing motion to quash, (that might get case dismissed on technicality?) but the CA can refile the lawsuit and serve again. Isn't that  true?

 

 

I called and spoke to the Court Clerk. He informed me that no proof of service has been filed by the plaintiff. He explained that plaintiff has filed declaration of non-service. Which he explained as plaintiff tried but couldn't serve me. Which  then means that Plaintiff is claiming that he tried to serve me twice, once in June-2012 and now in May-2013, but couldn't serve me. 

 

Now I am not sure what game is being played here. Is this their way to keep SOL alive? Why would they file the case and not serve me ? 

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I did hire an attorney, who was out of school and just got his license. My attorney had completed one year internship with a local law firm that represents defendants against CAs. After paying a grand as down payment to handle two open cases then, all he did was merely file procedural paper work. In both cases plaintiffs filed motion to dismiss the case. 

 

 

Simple the SOL catches up with the quash motion as they have to start from the beginning. The SOL is only tolled from the time it is served and the court gains jurisdiction over you. So over a year may become a game changer for you. I highly recommend the motion to quash especially if you are granted the motion you catch the SOL clock up to now.

 

I believe if you request sanctions you would waive the issue of jurisdiction of the court, which would be a bad thing. You see until you are personally and properly served the plaintiff nor the court has jurisdiction over you.

 

People say that a motion to quash is weak but it has it's uses.

 

and your last statement, I was wondering if you were dogging that the attorney only did the paperwork? I would contend that you having an attorney made the case go away because the court would have to remain neutral and not use bias.

 

as a tactical and strategic matter this is what I would do.

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I can follow Seadragon's recommendation of filing motion to quash, (that might get case dismissed on technicality?) but the CA can refile the lawsuit and serve again. Isn't that  true?

They can, however what they are going to have to examine is if it is worth it to file again since you already cost them the previous filing fee and you obviously will not just roll over and let them have a default. The one thing no JDB attorney wants is a defendant that is going to fight them, especially when that defendant knows the rules and beats them over the head with them.

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Keep looking at the docket (but calendar your respoonse date from the date the complaint was left at your door).  You want to see what plaintiff says about how you were served.  If plaintiff claims to have served you personally, you might consider a cross complaint. 

 

A motion to quash does not make a lot of sense because plaintiff will just re-serve you and you will be filing the motion to quash with your current address on line 1. 

 

Seadragon is incorrect about the SOL.  One must file a case before the statute runs. 

 

Good luck.

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Keep looking at the docket (but calendar your respoonse date from the date the complaint was left at your door).  You want to see what plaintiff says about how you were served.  If plaintiff claims to have served you personally, you might consider a cross complaint. 

 

A motion to quash does not make a lot of sense because plaintiff will just re-serve you and you will be filing the motion to quash with your current address on line 1. 

 

Seadragon is incorrect about the SOL.  One must file a case before the statute runs. 

 

Good luck.

 

 

Thanks. The docket has no evidence of plaintiff serving me so far. I talked to a lawyer (who usually seems to represent the plaintiff's trying to recover the debt). He checked the docket. His advise was not to do anything until I am served and proof of service is filed. I haven't technically hired him since there is no case yet to defend, but my brief consultation with him was to hire him. 

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Also keep an eye out for any requests to serve you by publication. If they are permitted, all they need to do is publish the summons in the paper and you're considered served.

 

If they do so, I believe that proof of publications needs to be recorded in the docket. There is no reason for them to resort to publication since I am staying at the same address. 

 

I found another copy of summons left at my door step last week! 

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