Just received Summons and Complaint but no proof of service.

[credit2011 105]

I just received a drop off summons and complaint from a JDB- Cache  confirmed copy filed with the court with a case #- It was dropped off to the UPS Store and the clerk there said they ask if that person has a box and just hand him the complaint- I asked the clerk and he said a process server dropped it off. But I see NO PROOF OF SERVICE ATTACHED.

I also asked the clerk if he signed anything to receive it- he said no.

 

The complaint also states the debt was assigned to them in 2012. It also said within the last 4 years defendant became indebted. I will check the SOL on this and see what appears on my credit report as last payment by OC.

 

I will use lack of standing to answer- but first I want to know if this is legitamate service?

[Clydesmom 1,203]

I will use lack of standing to answer- but first I want to know if this is legitamate service?

 

In California?  No.  However, if you answer the suit you are accepting service.  

[credit2011 105]

In California?  No.  However, if you answer the suit you are accepting service.  

Yes Cali - so what is the next step for me if not served- Something to  file with the court?

[Clydesmom 1,203]

Yes Cali - so what is the next step for me if not served- Something to  file with the court?

 

Here is the problem:  in order to inform the court you were not properly served you have one of two options:  not show up for court and then fight the judgment on the back end for improper service which may or may not work.  Or, you inform the court the service was not proper but then you have to admit you have the summons.  

 

I would file a complaint with what ever process service company served the summons.  Unless you live at the mail box store or work there they cannot personally serve you at that address and that server KNEW that.  That is why he ignored the clerk who asked if he was trying to serve a box holder there.  I would also look into sanctions against the plaintiff for attempting to use sewer service for a default judgment.

[credit2011 105]

Here is the problem:  in order to inform the court you were not properly served you have one of two options:  not show up for court and then fight the judgment on the back end for improper service which may or may not work.  Or, you inform the court the service was not proper but then you have to admit you have the summons.  

 

I would file a complaint with what ever process service company served the summons.  Unless you live at the mail box store or work there they cannot personally serve you at that address and that server KNEW that.  That is why he ignored the clerk who asked if he was trying to serve a box holder there.  I would also look into sanctions against the plaintiff for attempting to use sewer service for a default judgment.

II see from what you said I did not  receive the summons but with proper service? Should I  try to vacate it with the court under improper service with a motion to quash? . If your not served properly--  that is reason for a dismissal. I don't know who the process server is cause there is no proof of service. I cant ignore it and then if the complaint is not answered they can get a judgement-

I thought the court recognized this and I have the right to file a motion to quash based on not served properly and then if they reserve properly again I can accuse them of sewer service?

[Anon Amos 2,247]

I would fight the case not the service, or lack of it. Some judges have said "If you have the complaint then you were not damaged by the lack of service." CACH is the worst of the bottom feeders, Make sure the complaint is not "verified". If it's verified there would be an additional page with  the lawyers signature and stating that he knows it's true and that the plaintiff is not in the same county as his office etc.

 

Read ASTMedic's "how I beat Midlands" and HoelessInCalifornia's thread to help you get started. Learn about sending a BOP (bill of particulars) you may want to send that before you file the answer.

[credit2011 105]

I would fight the case not the service, or lack of it. Some judges have said "If you have the complaint then you were not damaged by the lack of service." CACH is the worst of the bottom feeders, Make sure the complaint is not "verified". If it's verified there would be an additional page with  the lawyers signature and stating that he knows it's true and that the plaintiff is not in the same county as his office etc.

 

Read ASTMedic's "how I beat Midlands" and HoelessInCalifornia's thread to help you get started. Learn about sending a BOP (bill of particulars) you may want to send that before you file the answer.

There is a verification. I have another suit I am working on so I am familiar with the process but not all of it. I will answer the complaint then for lack of standing . The law firm is in northern cali- I am in Southern Cali. But if there is no proof of service and I got it on a certain day- How does the time frame work to answer. I guess I just have to do it right away- The OC was HSBC which is now BOFA- I am going to see if the Delaware statute conforms to my case and use it down the line or  when if it does? Not sure I have to look it up.

 

 

I did notice that is says in General Allegations that this action is not subject to the provisions of the California et seq, ( Rees- Levering Act), California Civil code  1801, Ub=nruh Act or Civil code 1788.50 et seq ) Fair Debt Buying Practices Act

Not sure what that means?

[Anon Amos 2,247]

CACH may produce terms saying that Delaware law applies, in which case you could argue it would be a 3 year SOL. You would have to assert "SOL time barred" as an affirmative defense in your answer however.

 

The language in the general allegations is saying that new California laws (fair debt buying practice act) does not apply to your case (I assume that they are saying they purchased it before the law went into effect). It wouldn't matter to you anyway since you are answering the complaint. The new laws require them to actually have some proof before they can get a default judgment went a debtor does not answer the complaint.

[credit2011 105]

CACH may produce terms saying that Delaware law applies, in which case you could argue it would be a 3 year SOL. You would have to assert "SOL time barred" as an affirmative defense in your answer however.

 

The language in the general allegations is saying that new California laws (fair debt buying practice act) does not apply to your case (I assume that they are saying they purchased it before the law went into effect). It wouldn't matter to you anyway since you are answering the complaint. The new laws require them to actually have some proof before they can get a default judgment went a debtor does not answer the complaint.

It was placed for collection beginning in 2012 as stated on my credit report. by them  so I assume this is the date they purchased the account? The bill passed the Senate in 2013. For those who want to see the California Law Senate Bill 233 , here is the  link http://www.leginfo.ca.gov/pub/13-14/bill/sen/sb_0201-0250/sb_233_bill_20130702_enrolled.pdf

[credit2011 105]

The debt seems to be purchased in 2012 as what is listed on my credit report.

 

That is strange to me as the law states they need proof, but they are saying the new law does not apply to them? So they are basically admitting their proof is weak? The law went into effect May  2013 so they are using it to protect themselves in court?

Here is the California  Senate Bill  233 link if any one want to read it .

http://www.leginfo.ca.gov/pub/13-14/bill/sen/sb_0201-0250/sb_233_bill_20130702_enrolled.pdf

[Anon Amos 2,247]

They are using it to inform the judge not to apply the new law if you fail to answer, and to award a default judgment based on the pleadings (if you fail to answer the complaint) rather than them having to come up with all that the law now requires.

 

They probably will say the purchase was 2012, but you would need to find out with discovery (as you probably know from your other case).

[RyanEX 894]

The debt seems to be purchased in 2012 as what is listed on my credit report.

 

That is strange to me as the law states they need proof, but they are saying the new law does not apply to them? So they are basically admitting their proof is weak? The law went into effect May  2013 so they are using it to protect themselves in court?

Here is the California  Senate Bill  233 link if any one want to read it .

http://www.leginfo.ca.gov/pub/13-14/bill/sen/sb_0201-0250/sb_233_bill_20130702_enrolled.pdf

I believe the new law applies to any debt purchased on or after Jan 1, 2014. Anything purchased before 2014 isn't subject to those provisions.

 

??

[credit2011 105]

I believe the new law applies to any debt purchased on or after Jan 1, 2014. Anything purchased before 2014 isn't subject to those provisions.

 

??

Either way it makes sense to have to have evidence to prove a case in any situation. But BOFA bought HSBC, I believe BOFA is a Delaware corp- But if I use the 3 yr Delaware SOL defense am I using BOFA or HSBC?- I am still searching for the online  HSBC credit card agreements - HSBC was a bank in the UK but would of had to have a USA corporate presence.

Here is he  HSBC agreement but I don't see anything about a Delaware corp listed

http://files.consumerfinance.gov/a/assets/credit-card-agreements/pdf/creditcardagreement_8925.pdf

 

And I just see now here that HSBC still operates it USA credit card banking division

http://www.us.hsbc.com/1/2/home/personal-banking/credit-cards

 

HSBC is a Delaware corp

http://www.sec.gov/Archives/edgar/data/354964/000095012311019123/c62397e10vk.htm

[Anon Amos 2,247]

You are going to have to use the terms that they say they are suing you under, and use it against them. They are the ones that are going to have to produce the terms and it needs to come from them. YOU will have to get terms through discovery.

You may not know whether or not you can attempt to use  Delaware law until late in the case. You can only speculate that It may, and therefore assert the SOL as an affirmative defense just in case. If you can't prove it later it's no big deal.

You would be better off spending the time learning the rules of evidence etc. then trying to figure out what the terms are going to be (until you see them in discovery) in my opinion. I would send the BOP out right away and see what comes back. If you don't get any terms (which you won't) then you can go into discovery.  Also; it could be a Delaware corp. but state California law in the terms, which would give you a 4 yr. SOL. You won't know until you do some type of discovery.

 

And yes; the new law applies to debts purchased after 1/1/2014. But it only protects people that don't answer the complaint anyway. It's going to eliminate a lot of default judgments however.

[credit2011 105]

You are going to have to use the terms that they say they are suing you under, and use it against them. They are the ones that are going to have to produce the terms and it needs to come from them. YOU will have to get terms through discovery.

You may not know whether or not you can attempt to use  Delaware law until late in the case. You can only speculate that It may, and therefore assert the SOL as an affirmative defense just in case. If you can't prove it later it's no big deal.

You would be better off spending the time learning the rules of evidence etc. then trying to figure out what the terms are going to be (until you see them in discovery) in my opinion. I would send the BOP out right away and see what comes back. If you don't get any terms (which you won't) then you can go into discovery.  Also; it could be a Delaware corp. but state California law in the terms, which would give you a 4 yr. SOL. You won't know until you do some type of discovery.

 

And yes; the new law applies to debts purchased after 1/1/2014. But it only protects people that don't answer the complaint anyway. It's going to eliminate a lot of default judgments however.

Thanks ,I will be answering the complaint first and then proceed with the BOP as you stated.

[credit2011 105]

Why do some sue under "your name and does 1-10 inclusive" and some just under "your name" only.

Are their advantages or disadvantages?

 

Also if you were not properly served and file  a MTQ the JDC will receive a copy of that once its filed with the court or I send it to them once it is filed. But then they would just turn around and re- serve with proof of service ( as mine there was none attached to the drop off complaint- by the way not in an envelope and certainly not private (should be a violation but I guess it is not )

 

It costs $70 to file a MTQ and another $70 to end up answering complaint if the judge does not approve the MTQ- What should I really do?  I may not pass fee waiver requirements.

[shellieh98 1,505]

You got the summons, right or wrong, if money is tight, I would answer it. You can see who said they served it by getting a copy from the court, if it was a process server, most are bonded, and you could file a complaint against them then

[Anon Amos 2,247]

If you file a MTQ with the court (or anything else for that matter) you must send the lawyer a copy of what you filed. You have to send them a copy of what you filed with a copy of  a POS as well. When you file something you file a POS with it with the court, and send a copy of the POS to the lawyer.

Some judges don't like to be bothered by people filing a MTQ, because it pro longs the inevitable (the re filing of the case) You are well within your right to file it however. This is the type of questions that falls under a "judgment call" on your part.

I would definitely look into filing a complaint (or whatever you may be able to do) against the process server (but not at the peril of your case (you need to spend a lot of time learning how to win your case).

[credit2011 105]

I just called the clerk at the court- She said no POS was filed- She said they have up to three years to file one. So how does this play out with having a valid complaint with no proof of service?

[shellieh98 1,505]

2 choices-- submit an answer, or sit on it and keep your eye out for that POS.  They to this, and are in no hurry to find you because it stops the toling of the SOL.  It gives them time to get their act together and when they are ready to pursue, they do.  Usually right before the court dismisses for lack of prosecution.  You just better stay on top of the filings in the docket or you may end up with a default, then you would have to go through the motions to get it vacated.

[mamabear 7]

2 choices-- submit an answer, or sit on it and keep your eye out for that POS.  They to this, and are in no hurry to find you because it stops the toling of the SOL.  It gives them time to get their act together and when they are ready to pursue, they do.  Usually right before the court dismisses for lack of prosecution.  You just better stay on top of the filings in the docket or you may end up with a default, then you would have to go through the motions to get it vacated.

Yes!! I am still new here but have spent endless hours researching JDB cases at my local court since since being served three weeks ago. The majority end in default judgment, even those with no POS filed! Please defend yourself!!

[credit2011 105]

2 choices-- submit an answer, or sit on it and keep your eye out for that POS.  They to this, and are in no hurry to find you because it stops the toling of the SOL.  It gives them time to get their act together and when they are ready to pursue, they do.  Usually right before the court dismisses for lack of prosecution.  You just better stay on top of the filings in the docket or you may end up with a default, then you would have to go through the motions to get it vacated.

Well if allowed under Delaware SOL- that time is passed the SOl  but recent I believe. Not sure what makes an allowable SOL Delaware defense allowable in court in California. I remember somewhere here I might of bookmarked some cases. Nonetheless trial date are out for at least a year in California i if and when it gets calendered . With the knowledge I have from this board and website- I feel confident I can make all the necessary arguments to kick it out and win and dismiss.

[Anon Amos 2,247]

The only way you are going to have a shot at the Delaware SOL is if they provide the terms to the account (through your discovery request) and it states in the terms that Delaware law applies, and if you assert it now (in your answer) as an affirmative defense "time bared by the running of the SOL".

 

I think the safest thing to do is answer the complaint rather than trying to prove you were not properly served. It's one thing if you were not properly served, knew nothing about it, got a default judgment and had your bank account levied. But in your case you were not damaged by the lack of service, you have the complaint and time to answer it. You can mitigate damage by answering the compliant.

[credit2011 105]

Yes, you are right that is my plan. But they have to provide (proove)  the terms of the account re The Delaware SOL? I thought it was my part to add that or use in discovery or court regarding the Delaware SOL.

[Anon Amos 2,247]

It is your part to prove the Delaware SOL (assuming that's the case) But you can't do that, or use the terms against them UNTIL you have them, And you have to get the terms from THEM (by sending them discovery).

 

You may be able to find the terms online and get some answers,but you would not be able to use those terms you found surfing the internet. They need to provide the terms they are suing you under, and you will need to use those terms against them.