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Patenaude & Felix...court date...SUMMONS


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Hi all!

 

I'm new to the board, but I've been looking around and hopefully you guys can help me out with some advice or personal stories.  For reference, I live in Los Angeles.

 

On 11/27/13, I received a summons in the mail.  The date stamped on the summons is JUNE 04, 2013.  That seemed strange to me since I was receiving it a day before Thanksgiving.  Originally the debt was with Target National Bank and now with TD BANK USA, N.A., AS SUCCESSOR IN INTEREST TO TARGET.  And the plaintiff's attorney is The Law Offices of Patenaude & Felix, A.P.C. in San Diego, CA.  The amount on the summons is $1,900. 

 

So I thought I had 30 days from when I received the summons to file an answer, but that date on the summons of 6/4/13 just didn't sit right with me.  So I did a search, for the case #, on the Los Angeles County Superior Court website and the status is pending and there's a hearing date set for May 2014.  I have no problem paying my debt, but seriously no one served me a summons.  And now I have lost those 30 days to file an answer?!?!  So do I show up for this hearing now?  And is it basically just going to be judgement by default?  Can this be settled with Patenaude & Felix?  I don't really know what to ask since I'm so stirred up about this.  But if you can offer some advice it would be greatly appreciated.

 

Thank you  :-)

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No they filed it in June. They couldn't find you ( did you move?) so now they are doing substitute service. You have I think 40 days to answer from when you received the summons, but I would do it in 30 or less.

If you want to fight it, file a general denial, and start reading here. Keep this thread for all your questions, and we will help you.

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I am currently fighting the same exact duo...used to be target but now it's TDB...patenaude and Felix yadda yadda.

Trial is coming up, within the next few weeks.

We have done everything we can to be successful, and honestly time will tell on that front. Here's what we did, though I will not list dates until trial is wrapped up. You never know who's lurking on this board:

General denial,

Discovery both ways, making sure the request for production was first, followed by admissions to blow their case,

CCP 96,

Subpoena the witness,

Motion in limine, and

Trial brief.

P&F makes a lot of mistakes in their filings and spent a good majority of the time wasting my time and the courts time with their persistent attempts to "have settlement talks". They never would get the hint!

Anyway, I just wanted you to know you're not the only one in this boat.

I am never for settling, but that's just me. TDB bought your alleged debt for way less than it was worth, no doubt. We have some excellent new case law regarding a common tactic they play in order to get documents admitted. I don't believe you have been served properly. They have to file a motion to request service by publication. Service in this manner includes sending the summons by mail as well as putting it in the newspaper. Does the docket show this?

I would also edit your amount by rounding, as I already said, you never know who's reading.

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Thanks, Shellie & HotWheels!  What a relief to get an answer...I read all day and it got to be a bit overwhelming.

 

So if they filed in June and I didn't received the summons until November who keeps track of this?  How does the court know when my 30 days starts until I answer?  I've been at the same place for almost 3 years...no one ever served me.  Then I just receive it in the mail.  Also, if the court's website shows the hearing date in 2014 that doesn't mean they've already won by default?  Because it's been awhile since they filed and I received the summons...that's what I'm worried about.  The court's website says STATUS: PENDING

 

HotWheels, what form did you use to file the answer to the summons?

 

Sorry for so many questions all at once, but I really appreciate the guidance :)

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No default. You will know when they file the proof of service. They have to wait 10 days from mailing to file pos. (I think it is court days, not weekends, so more like 14) they may have left a summons in the driveway, given it to someone who answered the door, or published it in the newspaper, that's all sub. Service when they for what ever reason can't serve you personally.

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Weekends are most definitely counted in all things that are bound by timing. So, if your answer is due in 30 days, then the weekends count. If your 30th day falls on a weekend day or a court recognized holiday, then it will be due the first weekday that court is open.

I don't care for forms, so I drafted my denial with 28-line pleading paper. You can use PLD-050:

http://www.courts.ca.gov/documents/pld050.pdf

It's a preference.

So, they filed their case on June 4, 2013 and then mailed you the summons on November 27, 2013, correct? When you were looking at the docket, did you see if they filed a declaration of non service? This is important.

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We need to know how they claim you were served. As @shellieh98 said, there are ways of subserving a person, and mailing a copy is a requirement to affect proper service. If nobody at your house was given the papers, or they didn't have a motion to serve via publication granted, then service is not proper. In California, they are not allowed to leave your summons in your driveway.

415.20. (a) In lieu of personal delivery of a copy of the summons

and complaint to the person to be served as specified in Section

416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by

leaving a copy of the summons and complaint during usual office

hours in his or her office or, if no physical address is known, at

his or her usual mailing address, other than a United States Postal

Service post office box, with the person who is apparently in charge

thereof, and by thereafter mailing a copy of the summons and

complaint by first-class mail, postage prepaid to the person to be

served at the place where a copy of the summons and complaint were

left. When service is effected by leaving a copy of the summons and

complaint at a mailing address, it shall be left with a person at

least 18 years of age, who shall be informed of the contents thereof.

Service of a summons in this manner is deemed complete on the 10th

day after the mailing.

(B) If a copy of the summons and complaint cannot with reasonable

diligence be personally delivered to the person to be served, as

specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may

be served by leaving a copy of the summons and complaint at the

person's dwelling house, usual place of abode, usual place of

business, or usual mailing address other than a United States Postal

Service post office box, in the presence of a competent member of the

household or a person apparently in charge of his or her office,

place of business, or usual mailing address other than a United

States Postal Service post office box, at least 18 years of age, who

shall be informed of the contents thereof, and by thereafter mailing

a copy of the summons and of the complaint by first-class mail,

postage prepaid to the person to be served at the place where a copy

of the summons and complaint were left. Service of a summons in this

manner is deemed complete on the 10th day after the mailing.

So, it can be left at your house, only if it's left with a person who is 18 or older and competent of receiving it and lives at the location or works at the location in the event it's left at your place of employment.

The only other way mailing it would be proper service is if the envelope contains two copies of a notice and acknowledgment. This is something you fill out acknowledging that you have been served.

Finally:

415.50. (a) A summons may be served by publication if upon

affidavit it appears to the satisfaction of the court in which the

action is pending that the party to be served cannot with reasonable

diligence be served in another manner specified in this article and

that either:

(1) A cause of action exists against the party upon whom service

is to be made or he or she is a necessary or proper party to the

action.

(2) The party to be served has or claims an interest in real or

personal property in this state that is subject to the jurisdiction

of the court or the relief demanded in the action consists wholly or

in part in excluding the party from any interest in the property.

(B) The court shall order the summons to be published in a named

newspaper, published in this state, that is most likely to give

actual notice to the party to be served. If the party to be served

resides or is located out of this state, the court may also order the

summons to be published in a named newspaper outside this state that

is most likely to give actual notice to that party. The order shall

direct that a copy of the summons, the complaint, and the order for

publication be forthwith mailed to the party if his or her address is

ascertained before expiration of the time prescribed for publication

of the summons. Except as otherwise provided by statute, the

publication shall be made as provided by Section 6064 of the

Government Code unless the court, in its discretion, orders

publication for a longer period.

© Service of a summons in this manner is deemed complete as

provided in Section 6064 of the Government Code.

(d) Notwithstanding an order for publication of the summons, a

summons may be served in another manner authorized by this chapter,

in which event the service shall supersede any published summons.

(e) As a condition of establishing that the party to be served

cannot with reasonable diligence be served in another manner

specified in this article, the court may not require that a search be

conducted of public databases where access by a registered process

server to residential addresses is prohibited by law or by published

policy of the agency providing the database, including, but not

limited to, voter registration rolls and records of the Department of

Motor Vehicles.

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All you need to do is file a motion with the court for improper service. Can you prove when you got the summons, if so then you state you were served after the 30 day period and you would like to have the court recognize your right to answer the complaint.

 

I do not know if CA uses nunc pro tunc orders or not, in my state nunc pro tunc orders fly around like loose paper airplanes.

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My boyfriend was home the day before it was mailed.  The guy told him if you're not her family I can't leave these papers with you, but my boyfriend was able to see that it was a summons.  Then the next day the one copy was in an envelope in my mailbox.

 

I looked on the superior courts website and this is part of the information:

 

06/27/2013 CASE FILE FORWARDED TO RECORDS RE: FILING
06/13/2013 ORDER TO SHOW CAUSE HEARING SIGNED AND FILED BY GRACIELA FREIXES 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 05/30/14 AT 08:30A M., IN DEPT. F43 . CERTIFICAT E OF MAILING FILED, GIVEN TO RESPECTIVE PARTIES/ COUNSEL.
06/04/2013 COLLECTIONS CASE COMPLAINT FILED PURSUANT TO CRC 3.740. RN PD.
06/04/2013 SUMMONS ISSUED.
06/04/2013 SUMMONS FILED.

 

 

If I call the courthouse can they give me proof of service information over the phone?  Or do I actually have to go in there and talk to someone?  Also, P&E keeps calling trying to negotiate because they want to try to avoid a judgement, or so they tell me.

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Still not legal service.

Just so you know, if you recall I was supposed to have my trial soon, actually it would have been this Friday, I no longer have to go.

Why you ask? Because they just filed for a dismissal. Now, if you want to pay for it, just pay for it, but if it were me I'd be fighting it. My fighting for it (and it was for $7,000) all the way resulted in them throwing in the towel. But again, it's up to you.

Biggest thing here, you have to be willing to listen to what people post and then read up on it after that. Best way to learn.

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Oh and they called over and over again trying to settle. That just makes them getting your money easier for them. They made the same claims to me, that in order to avoid judgment against me I better settle. Let me ask you this...if they are so sure of their case against you, why would they be willing to settle? Why not just go to trial and get all the money you owe? Because if you take it all the way, they will dismiss it 2 days before court.

Now do you understand why I won't settle? Had I done so, I wouldn't be in the position I'm in right now. With the plaintiff giving up because they knew I wasn't going to give up.

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HotWheelz,

 

I'm grateful for the information that you and everyone else is providing me with and I am learning from what is posted, but I won't lie I also have ALOT of anxiety & fear over this.  This is the first time I have ever been sued and a million things are running through my head.  I don't want these scumbags to freeze my bank account and take my money or garnish my hard-earned wages then I get angry because they have been so shady and it just scares me.  One minute I read all of your stories and I get pumped up and think I can definitely do this with your guidance.  Then I read on another website a bunch of attornies giving advice saying the courts don't favor people that file things on their own, but I called to get advice from an attorney and I couldn't even get through because as the receptionist said if your debt is $1,900 the attorney is going to charge $1,500 so it wouldn't really work out. 

 

My decision is made though...with the help from this board and the knowledge I gain from it I'm going to fight this.  I won't just roll over and take it.  I called the court and they have the proof of service date in the computer as 12/9/13, but they were not able to tell me the method of service.  Per the clerks office, it was not in the computer yet and the paper that would have those notes is not in the file yet.  They suggested I file my answer before the 30 days so that I can "be protected". 

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HotWheelz,

 

I'm grateful for the information that you and everyone else is providing me with and I am learning from what is posted, but I won't lie I also have ALOT of anxiety & fear over this.  This is the first time I have ever been sued and a million things are running through my head.  I don't want these scumbags to freeze my bank account and take my money or garnish my hard-earned wages then I get angry because they have been so shady and it just scares me.  One minute I read all of your stories and I get pumped up and think I can definitely do this with your guidance.  Then I read on another website a bunch of attornies giving advice saying the courts don't favor people that file things on their own, but I called to get advice from an attorney and I couldn't even get through because as the receptionist said if your debt is $1,900 the attorney is going to charge $1,500 so it wouldn't really work out. 

 

My decision is made though...with the help from this board and the knowledge I gain from it I'm going to fight this.  I won't just roll over and take it.  I called the court and they have the proof of service date in the computer as 12/9/13, but they were not able to tell me the method of service.  Per the clerks office, it was not in the computer yet and the paper that would have those notes is not in the file yet.  They suggested I file my answer before the 30 days so that I can "be protected". 

Love,

 

This is very normal and exactly how I felt in 2009 when I arrived here.  Make a decision then, do the work neccessary to get the best result.  Learning is something that is always good.  If you follow along and impliment the advice you will leave with a good amount of knowledge that will allow you to protect your rights for the future.  Here are  a couple of General Pointers that have nothing to do with your case....

 

1.  Leave yourself plenty of time to accomplish things.  Most of us don't show up with legal knowledge and how the system works, so it will take us 3 times longer to complete tasks as one would think in the early going espiecally...

 

2.  Use some type of calendar to keep track of deadlines.  Missing certain deadlines can be the end your case.  Courts run by Rules of Civil Procedure (CCP) and Local Court Rules(CRC).  Don't try to understand them all there are to many, but when you are directed to learn about a particular CCP, find it and read it for yourself, then ask questions.

 

3.  Each persons defintition of winning is based on their personal circumstances.  You don't have to go all the way, if winning for you is a setttlement that meets your personal financial circumstances you win.

 

4.  Civil Litigation is about which side will say UNCLE first.  This means creating leverage against the otherside so they are willing to quit or take less.

 

5.  No matter what the outcome win or lose you will be and feel much better putting up a fight, versus being in the 95% that put there head in the sand and hope it all goes away.....

 

Best of Luck will be watching your thread and will assist when I can.

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