Jump to content

Unifund Lawsuit--Never served but case was not dismissed at Proof Of Service (POS) hearng. Why?


Recommended Posts

I would appreciate some feedback about a situation in a case filed against me.

 

I am on the final year of the statue of limitations running out on ALL my credit debt.

 

Unifund bought an old Citibank debt and they filed suit against me January 2013.  They never served me.  I specifically monitor the court websites and case summaries to keep up with actions because that's how I find out if I am being sued from JDB's who fake that they served you. When I saw that someone had filed against me, I waited.  As typical court protocol, there was a hearing scheduled for the Proof Of Service.  I waited to be served and I monitored the case summary.

 

Now believing that the case would be dismissed at the Proof of Service hearing if they did not provide proof of service and/or actually serve me was my assumption.  So I did nothing.  No proof of service ever showed up on the case summary and I just let the day pass by and then got online to monitor the Case summary after the fact to check the status.  Again...they have ever served me AND There is no court record of proof of service in ANY manner.

 

Now...this is what perplexes me... (And please see the full current case summary at the end) I am totally perplexed as to why the case was not dismissed, but rather another hearing 2 1/2 years out to 2015 was continued for an ORDER TO SHOW CAUSE HEARING WHY SANCTIONS SHOULD NOT BE IMPOSED FOR FAILURE TO FILE REQUEST FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO CRC 3.740(F).

 

How and why would a Judge keep a case open for 2 ½ years and have the next hearing be about entry of Default, when the Plaintiff’s attorneys have not even provided a proof of service nor probably been sanctioned for that. I am assuming that by the Judge setting a new hearing that it leaves the door open for 2 ½ years for the Plaintiff to serve me the lawsuit at their leisure and that seems against court rules to me.

 

It appears that the Plaintiff now has free reign to try and sue me and subsequently the timeframe they are granted will encompass beyond my SOL this year and therefore it is possible that I’ll have to go in and fight a court case outside of the SOL or worse this Plaintiff will be awarded a Default Judgment for doing nothing, because they never even provided a proof of service.  This scenario seems like shady work on the part of the Judge.  I have never heard of this type of ridiculousness. It doesn’t seem like proper procedure and it seems unfair to me the defendant, and overly gracious to the Plaintiff who isn’t following procedure nor being reprimanded for it by the Judge, and instead being granted 2 ½ years to do their court duty/procedure.

 

Below  is the Case Summary. If anyone can explain this I would appreciate it, because if I have to do battle as I have in the past with a debt collector who has no contract with me and then also has been given free reign of 2 ½ years to follow court procedure, I am going to have to figure out a new strategy, because there is no way in H*ll, that on the last 4 months of my SOL running out that I will allow myself to be sued and specifically in this B.S. manner.  This is my home free year and I plan to get through it scot free.

 

Let me know what you think and know about this maneuver from the Judge if anyone is familiar and if my assumption is correct with the judge leaving the case open, that the Plaintiff has 2 ½ more years to try and sue me and has the right to do so because they filed before the SOL.

 

Lastly…this is my bottom line.  I want this case to disappear.  I can’t have it in limbo for 2 1/2 years.  That’s too stressful to me.  I’d like to get it dismissed now and I'm wondering what others would do in my situation.  I only have experience fighting cases where the lawyers provided their POS and the court procedures were followed—and I answered the summons, showed up and won my case.  I have zero experience with this unacceptable timeline of limbo lawsuits and want to know what legal actions or motions I can take.  I am assuming I should not wait any further, because it appears by the case summary that the Judge has allowed forward movement to the Plaintiff to try and go for a default judgment.

 

Thanks in Advance.

::drowning::   ::drowning::  ::drowning::

 

 

 

UNIFUND CCR, LLC VS.  XXXXXXX

Court:   Norwalk Courthouse

Original Case Number:   XXXXXXX

Original Court:   XXX Courthouse

Filing Date:  01/04/2013
Case Type:  COLLECTIONS CASE (Limited Jurisdiction)
Status:  PENDING

Future Hearings

12/21/2015 at 08:30 AM in department SEY at XXXXX, CA 90650
OSC - 3.740 COLLECTIONS-DEFAULT JUDGMENT

History Information

Parties

Plaintiff:  UNIFUND CCR LLCA LIMITED LIABILITY COMPANY
Attorney:   LAW OFFICES OF KENNETH J. MIELE - KENNETH J. MIELE ESQ

Defendant:  XXXXX
Attorney:   None

Party Information

Histories (Dates listed in descending order)

07/22/2013 ORDER TO SHOW CAUSE HEARING SIGNED AND FILED BY HOWARD L.
HALM, JUDGE TO SHOW WHY SANCTIONS SHOULD NOT BE IMPOSED
FOR FAILURE TO FILE REQUEST FOR ENTRY OF DEFAULT JUDGMENT
PURSUANT TO CRC 3.740(F). MATTER CONTINUED FOR HEARING
ON 12/21/15 AT 08:30A M., IN DEPT. SEY . CERTIFICATE
OF MAILING FILED, GIVEN TO RESPECTIVE PARTIES/ COUNSEL.

04/05/2013 * EFFECTIVE 05/06/2013

04/05/2013 * CASE REASSIGNED TO THE XXXXX COURTHOUSE

04/05/2013 * IN DEPARTMENT SEY AT 8:30 AM

04/05/2013 * FUTURE HEARING DATE(S) REMAIN THE SAME

04/05/2013 * CASE RENUMBERED FROM LB XXXXX TO NORXXXX  (courthouses changed)

01/04/2013 COLLECTIONS CASE COMPLAINT FILED PURSUANT TO CRC 3.740. RN
FPS.

01/04/2013 SUMMONS ISSUED.

01/04/2013 SUMMONS FILED.

01/04/2013 NOTICE OF CASE ASSIGNMENT ON FILE. CASE IS ASSIGNED TO
DEPT. SOH OF HONORABLE JOSEPH DILORETO .

01/04/2013 ORDER TO SHOW CAUSE HEARING/CASE MANAGEMENT REVIEW SIGNED
AND FILED BY JOSEPH DILORETO TO SHOW WHY SANCTIONS
SHOULD NOT BE IMPOSED FOR FAILURE TO FILE PROOF OF
SERVICE PURSUANT TO CRC 3.740(E). MATTER SET FOR HEARING
ON 07/18/13 AT 08:30A M., IN DEPT. SOH . CERTIFICATE
OF MAILING FILED.

 

 

 

Link to comment
Share on other sites

My guess is the attorney came in and claimed that they cannot locate you to be served...keep an eye out in the local paper for service by publication.

 

 

Also, keep in mind that since the suit is now filed, the SOL is tolled (meaning it's put in a time out) and will not run out during litigation.

 

If I also remember correctly, CA allows cases to be open for 4 years before they can go trial (I don't recall the exact CCP section- maybe CALawyer can jump in and fill in this blank). So there's no shady acts by the judge. He/she just gave the Plaintiff the most latitude available to them under the law.

 

I would go and get a copy of the suit and start drafting an answer...

Link to comment
Share on other sites

My guess is the attorney came in and claimed that they cannot locate you to be served...keep an eye out in the local paper for service by publication.

 

 

Also, keep in mind that since the suit is now filed, the SOL is tolled (meaning it's put in a time out) and will not run out during litigation.

 

If I also remember correctly, CA allows cases to be open for 4 years before they can go trial (I don't recall the exact CCP section- maybe CALawyer can jump in and fill in this blank). So there's no shady acts by the judge. He/she just gave the Plaintiff the most latitude available to them under the law.

 

I would go and get a copy of the suit and start drafting an answer...

 

Yes thank you.  The thing is that if I act via a court response--I'm in.   And then I have to deal with the lawsuit.   Right now they can't find me which is one of my ploys and I am looking to get this dealt with exactly at the 4 year mark, so that they have to start over and by then it'll be out of the SOL timeline.  Thank you for your answer and I hope CALawyer will chime in on this issue as well.

Link to comment
Share on other sites

I think completely misunderstand -

 

Once litigation is filed, the SOL stops.  Which means that once 4 years elapses, this particular debt can still be collected on. Once the case is dismissed, then the SOL resumes as if the litigation never happened.

 

Example - lawsuit filed with 1 year left before SOL elapses. Plaintiff cannot serve Defendant. Plaintiff dismisses after 2 years. There is still 1 year left to purse the debt.

 

The SOL does not and will not elapse during litigation.

 

 

///

If you're ducking service, they will most likely serve the lawsuit by publication - meaning they will take out an ad in the local paper, and after 4 consecutive weeks of publication, you're considered "served." When you fail to respond, they will obtain a default judgment against you.

 

Time is completely on their side for now...

Link to comment
Share on other sites

I think completely misunderstand -

 

Once litigation is filed, the SOL stops.  Which means that once 4 years elapses, this particular debt can still be collected on. Once the case is dismissed, then the SOL resumes as if the litigation never happened.

 

Example - lawsuit filed with 1 year left before SOL elapses. Plaintiff cannot serve Defendant. Plaintiff dismisses after 2 years. There is still 1 year left to purse the debt.

 

The SOL does not and will not elapse during litigation.

 

That's interesting. I always assumed that when I won my court cases, I was still on my 4 year track, because they didn't win, therefore it reverted to my 4 year SOL mark.  Meaning when a person files, the SOL stops, but if they don't win the case, they have only the window for the SOL to re-file and have the right to claim the case as valid in the SOL timeline.  I'm fairly certain that is the case, because otherwise a case would go on indefinitely forever--all criminal cases could go on forever etc. if this was not the case.  That's what a SOL is for--so a case cannot  go on for the rest of someone's life.   I'll do some sleuthing though to be sure.  Thanks.

 

 

 

 

 

 

 

Link to comment
Share on other sites

The SOL in California is not "tolled" by the filing of a lawsuit.  If it is filed in time, there is no SOL issue.  But if it is dismissed and refilled, the original SOL applies.  I did a post on this issue a while back citing some cases.  Search my posts for "limitations" and "toll" and I think you will find it.

 

Not sure what is going on in your case.  In collections cases, the complaint is supposed to be served in 360 days per California Rule of Court 3.740 : http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_740

 

Keep checking the docket. 

  • Like 1
Link to comment
Share on other sites

I'm pretty sure they must serve within 180 days, not 360, per CCP 3.740 ( d ):

( 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.

Here's where the 360 days comes in:

(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.

Link to comment
Share on other sites

I'm pretty sure they must serve within 180 days, not 360, per CCP 3.740 ( d ):

 

 

 

 

Yes.  But in effect, they get 360 because the Court doesn't sanction them unless a default is filed in 360.  So they have up until 360 days to either serve or request a default..

 

The problem with all of this is that the only penalty is monetary sanctions.  There is no provision for dismissing the case or permitting the defendant an argument that the case should be dismissed for failure to serve on time.

 

Link to comment
Share on other sites

This same attorney did this to me over a few years ago. Never received any summons and they filed that it was served. They got a default judgement and started garnishing wages by sheriff delivering garnishment to wife's work. That is how we found out about the suit. We had no option to pay as I didn't know about this board. When I got the docs showing it was served the description on who they served it to didn't match anybody living here. So just a warning to keep an eye on your case. These scum will do the same thing I guarantee.

 

Next time a suit came in I won with prejudice. I know now I would have won the first one easily. Live and learn.

Link to comment
Share on other sites

  • 5 months later...

I have the same issue in Chatsworth. Case filed mid-November '13, learned of it through ad from lawyer, never served. Same language regarding a 3-year continuance:

 

ORDER TO SHOW CAUSE HEARING SIGNED AND FILED BY XXXX, JUDGE TO SHOW WHY SANCTIONS SHOULD NOT BE
IMPOSED FOR FAILURE TO FILE REQUEST FOR ENTRY OF DEFAULT
JUDGMENT PURSUANT TO CRC 3.740(F). MATTER CONTINUED FOR
HEARING ON 11/XX/16 AT XXXXA M., IN DEPT. XXX .
CERTIFICATE OF MAILING FILED, GIVEN TO RESPECTIVE PARTIES/
COUNSEL.

 

I've made copies of the file in person and the most recent entry is a Declaration re Diligence filed one month ago, in preparation, I imagine, for a request to serve by publication. 

 

My plan for now is as the OP's: monitor the case, and look for a proof of service or something. I've been reading up and and slowly preparing my answer. I'm just trying to figure out what the point of this massive continuance is. Over-loaded docket? Does this continuance extend their 180 (or 360)- day obligation to file POS? Appreciate any help.

Link to comment
Share on other sites

Unifund filed suit against me last spring and never served me either.  A month after they filed suit, they filed papers with the court claiming that they couldn't locate me which was a blatant lie as we had been in constant contact since their first collection letter eight months prior to filing suit.  I'd already taken on another JDB the year before that and got them to dismiss w/o prej so I wasn't dodging them. 

 

I too live in SoCal but a different county and the court here didn't mess around.  They set a hearing for six months later to find out why Unifund couldn't find me and when they failed to appear for that hearing he fined them and set a hearing to dismiss one month later.

 

During the seven month wait I hired a consumer law attorney and got them to back down.  Can't discuss the terms of the settlement but I walked away unscathed.  Suggest you do the same.

Link to comment
Share on other sites

Hang on a minute, something does not seem right with this.

 

Admittedly, I am not from CA so I am not so familiar with CA laws, but let's look at this again:

 

ORDER TO SHOW CAUSE HEARING SIGNED AND FILED BY XXXX, JUDGE TO SHOW WHY SANCTIONS SHOULD NOT BE
IMPOSED FOR FAILURE TO FILE REQUEST FOR ENTRY OF DEFAULT JUDGMENT

 

This is a red flag to me.  The debt collector CANNOT file a request for entry of default judgment unless they are telling the court that you have been served already.  If it were me, I would be heading to that court clerk's office and I would request a copy of whatever was filed in this case.  It is possible that they told the court that you have been properly served when you have not been, and if you wait to see what happens next, you could end up with a default already against you.  I would NOT let that happen.

 

That statement is the judge, demanding that the plaintiff provide a good reason why the court should not penalize the plaintiff/plaintiff's attorney for NOT filing a default judgment.....I would not wait on this one.  As I understand it, in most parts of the country default judgments are not really favored because they present the possibility of the courts being clogged up with further cases if people file motions to vacate, but I imagine that in CA, due to the sheer number of cases, they may push defaults to help to clear the calendar.

Link to comment
Share on other sites

  • 3 weeks later...

I went to look at my file and speak to the clerk. This 3-years out Motion Hearing is LASC's way of keeping a ticker on JDB's, so that the court will automatically dismiss any case that is not acted on by a certain time. Apparently they do it to all new collections cases. Calawyer mentions it in one of the threads. 

 

In any case, they were out of SOL before they filed and the case was Dismissed without Prejudice by the plaintiff. The JDB then sent a letter stating that they would not sue because the law limits how long they could sue but offering me 30% off if I would settle. I never did anything other than copy the case file which resulted in my Request for Copies being added to the file. Guess I got lucky.

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.