credit2011

Just received Summons and Complaint but no proof of service.

Recommended Posts

Should I wait to send the conformed copy of the MTC when I get back from the court to the plaintiff as the POS (for the plaintiff)  that I send to court will be dated the day of sending via mail for filing- Should I just wait for the conformed copy back from court to send to plaintiff? - but then the POS date would be different tot he one I am enclosing with the court. Or- just send the conformed one page conformed- filed copy again  when I get it back from the court to them again with another POS ?

Link to post
Share on other sites

Should I wait to send the conformed copy of the MTC when I get back from the court to the plaintiff as the POS (for the plaintiff)  that I send to court will be dated the day of sending via mail for filing- Should I just wait for the conformed copy back from court to send to plaintiff? - but then the POS date would be different tot he one I am enclosing with the court. Or- just send the conformed one page conformed- filed copy again  when I get it back from the court to them again with another POS ?

You may be over thinking this. As long as everyone gets a copy of the motion and POS it won't be an issue, even with different dates. It allows for a "reasonable amount of time" for filing and POS etc., so that it's not a large burden.

Link to post
Share on other sites

you shouldn't send a conformed copy to plaintiff. (personally, I'd never send them a signed POS either, but that's a different debate)

Why is that your view? Does the court ever notify them of the date of the hearing? Maybe you feel its their job to spend the time to verify it to see if I really did it? I have already spent enough on filings, CCRR's it get expensive. Nover send them a signed POS?Why? I thought this was procedure.

Link to post
Share on other sites

Just to clarify: not a big deal and no strategic advantage, just a technicality (so the word "never" was probably too strong), but:

 

the POS says "I served the documents by enclosing them in an envelope ... " - past tense.  So, when the POS is signed, the documents should already have been served (by enclosing in an envelope and depositing the "sealed envelope" in the mail).  The "served" POS should therefore be unsigned.  After service the POS should be signed and then the documents (with signed POS) filed with court (if needed).  The POS is proof that you did serve the documents, not that you will serve them, or are about to do it.

 

That said, it's frequently done both ways, with no problem, by people with plenty of experience.  (I guess I just like the idea of not providing them with anything I don't have to - even something as minor as my wife's signature  ;-))

Link to post
Share on other sites

Just to clarify: not a big deal and no strategic advantage, just a technicality (so the word "never" was probably too strong), but:

 

the POS says "I served the documents by enclosing them in an envelope ... " - past tense.  So, when the POS is signed, the documents should already have been served (by enclosing in an envelope and depositing the "sealed envelope" in the mail).  The "served" POS should therefore be unsigned.  After service the POS should be signed and then the documents (with signed POS) filed with court (if needed).  The POS is proof that you did serve the documents, not that you will serve them, or are about to do it.

 

That said, it's frequently done both ways, with no problem, by people with plenty of experience.  (I guess I just like the idea of not providing them with anything I don't have to - even something as minor as my wife's signature  ;-))

I did the mailing to the court for filing  and copies to the plaintiff on the same day. I was just initially concerned waiting to send copies to plaintiff later and date is lets say a week later on the POS the one I sent to the court the date would of differed on the POS to them to what I would of sent to the plaintiff. I rather just have it all match up so they cant say there was a discrepency or question as to why they are different- But I guess it does not matter- It should be signed - it its not signed it not supposed to be valid- but I know that may not be totally true as well. The POS is along with the docs you are serving and is required as far as I know, from what I hear from all on many posts here. I don't see the point of sending it not signed it is supposed to be signed.

 

On the other hand there are always issues that have prevailed in court for defendants that are not served properly and vice versa.

 

Long time ago on a business lawsuit I had the court rejected the filing for something because I did not sign and date the POS- I had to re- file the whole thing and that costs money.

Link to post
Share on other sites

You did the right thing. 

 

Signing or not signing the POS that goes to plaintiff is largely irrelevant.  What you don't want, is to file with the court by mail, and then serve plaintiff after you've received copies from the court.  That would have been a (small?) mistake. 

 

(Copies of) the same POS, with the same date, should be used for filing and serving.  Only the actual filing date (the "Filed" stamp date) should be different.

  • Like 1
Link to post
Share on other sites

I always filed with the court first. I had the plaintiffs copies with me addressed to them. The clerk told me it didn't make a difference as long as I got it in the mail the same day. I signed the pos to the court, the unsigned copy was in their docs just to show them I didn't forget it, they could look up the signed one in the court docs if they wanted to discuss semantics lol. All in all it doesn't matter as long as you can prove you sent them

  • Like 2
Link to post
Share on other sites

I always filed with the court first. I had the plaintiffs copies with me addressed to them. The clerk told me it didn't make a difference as long as I got it in the mail the same day. I signed the pos to the court, the unsigned copy was in their docs just to show them I didn't forget it, they could look up the signed one in the court docs if they wanted to discuss semantics lol. All in all it doesn't matter as long as you can prove you sent them

Yep, certified return receipts sent of course. i even check the trackings from  USPS when the get delivered. I  print them and keep them with the file-

Link to post
Share on other sites

Since they did not respond to the M&C with more docs and the MTC was sent- How does the judge look at the fact that they did not respond at all to that when trial time comes.

When plaintiff's get a MTC, what is the usual course of action - meaning how do they respond- if they cant come up with these documents. Is this a point where they may think to dismiss or wait it out till trial thinking they can provide proof of their case?

 

Any one here have an example of how a plaintiff responded to a MTC to a defendant where they won or lost the case?

Link to post
Share on other sites

Since they did not respond to the M&C with more docs and the MTC was sent- How does the judge look at the fact that they did not respond at all to that when trial time comes.

Depends on the judge (and you). The judge may not like the fact that they fid not compel and hold it against them. Or, the judge may leave it up to you. If you don't object to what they do then you are OK with it. You have to make things an issue.

When plaintiff's get a MTC, what is the usual course of action - meaning how do they respond-

Most of the time they produce things just before the MTC hearing so that the defendant will cancel the hearing. By now you have forced their hand. and most of the time they will lose the MTC anyway, as a judge is going to be hard pressed to not allow you to get the evidence against you.

if they cant come up with these documents. Is this a point where they may think to dismiss

Yes it is. Even if they can get documents they may think to dismiss. When you keep pressure on them like you are doing and make the case more work than it's worth, they will often dismiss. A lot of times they just don't show up and dismiss that way.

or wait it out till trial thinking they can provide proof of their case?

You never know. They will most likely dismiss. Remember they are going to send you the CCP 98 declaration, and you will subpoena the declarant. That's usually when it gets dismisses when it goes this far (or right at the trial). It is VERY hard if possible for them to prove their case if you know the rules if evidence and how to use them against the plaintiff. 

 

Any one here have an example of how a plaintiff responded to a MTC to a defendant where they won or lost the case?

The first MTC I filed on the BOP caused them to respond at the last minute to avoid the MTC. My second MTC for discovery; they lost and were ordered to compel in 30 days. They dismissed the case a week before trial. The lawyer claimed it was because they did not want to have a jury trial, but they would have won if it was a bench trial.  I was going to file a lawsuit on them as well and that also was a factor.

  • Like 1
Link to post
Share on other sites

Since they did not respond to the M&C with more docs and the MTC was sent- How does the judge look at the fact that they did not respond at all to that when trial time comes.

When plaintiff's get a MTC, what is the usual course of action - meaning how do they respond- if they cant come up with these documents. Is this a point where they may think to dismiss or wait it out till trial thinking they can provide proof of their case?

 

Any one here have an example of how a plaintiff responded to a MTC to a defendant where they won or lost the case?

 

 

Plaintiffs will submit their response to you and file with the Courts. Check your courts rules as far as for tentative rulings. Normally you will no a day prior to the hearing or the day of the hearing on the Judges ruling. If the Judge rules in your favor then you will write a Proposed Order based on what the Judge rules on. Submit that to the Judge for Signing then along with a Notice of Order Entry get it filed and stamped with the Court and send one to the JDB.

 

 

If then JDB does not respond to the Judge's Order they have defied a Court Order and you just put that in your Trial brief and/or MIL.

 

In our case, JDB defied MTC BOP and therefore i compelled Discovery then in my MTC Discovery mentioned that JDB defied Court Order during the MTC BOP and Judge was not happy so this time JDB complied with MTC Discovery.

  • Like 1
Link to post
Share on other sites

Got some discovery from plaintiff see enclosed- This time they sent a POF Please note- they flimsy responded to BOP and never responded to M&C which I have sent a MTC

 

 REQUEST for PRODUCTION  OF DOCUMENTS

REQUEST FOR ADMISSIONS

INTERROGATORIES (Really need some guidance on these strange questions)

 

see enclosed- attachments

 

Best way to respond to these and example of templates are appreciated

I was sued on  account stated and money lent paid or expended there was a verification included in complaint

Any help is appreciated.

 

Link to post
Share on other sites

Answers to their RFP request:

 

RFP #1:  OBJECTION: Equally available to plaintiff.

 

RFP #: OBJECTION: Equally available to plaintiff.

 

RFP#3: Defendant has no such documents and has disputed the allegations in the complaint. Discovery is ongoing.

 

RFP#4: (I forgot to answer his one, I'll get back to you.

 

RFP#5: No such documentation exist. Discovery is ongoing

 

After "discovery is ongoing: you can put "defendant reserves the right to supplement her response" or something to that effect if you want, most people do. I did not.

  • Like 1
Link to post
Share on other sites

Answers to their RFP request:

 

RFP #1:  OBJECTION: Equally available to plaintiff.

 

RFP #: OBJECTION: Equally available to plaintiff.

 

RFP#3: Defendant has no such documents and has disputed the allegations in the complaint. Discovery is ongoing.

 

RFP#4: (I forgot to answer his one, I'll get back to you.

 

RFP#5: No such documentation exist. Discovery is ongoing

 

After "discovery is ongoing: you can put "defendant reserves the right to supplement her response" or something to that effect if you want, most people do. I did not.

ok cool will modify as I get answer 4  skippy1960 wrote this in another thread I just quoted to for Question no 1 same as mine he suggested this

 

1. Defendant incorporates all General Objections. Defendant further objects to this request on the basis that it is vague and ambiguous, overly broad, unduly burdensome and not narrowly tailored to the issues in dispute. Subject to and without waiving the foregoing general and specific objections, a diligent search and reasonable inquiry has been made in effort to comply with this demand. Requested documents are not in the control or custody of Defendant. Discovery is ongoing and Defendant reserves the right to supplement response if necessary.

Link to post
Share on other sites

Answers to some of the ROGS:

 

1)   Defendant has denied all allegations in the complaint. Plaintiff bears the burden of proof.

 

2)  Defendant has denied all allegations in the complaint and has no such documents at this time. Discovery is ongoing.

 

3)  Defendant has denied all allegations in the complaint, and disputes the amount prayed for or any other amount.

 

4)  Defendant disputes the amount prayed for or any other amount. No such documents exist at this time, discovery is ongoing.

 

5) SOL

 

6)  OBJECTION: PREMATURE: Discovery is ongoing. Plaintiff has not prevailed at trial causing defendant to prove affirmative defenses.

  • Like 1
Link to post
Share on other sites

Answers to some of the ROGS:

 

1)   Defendant has denied all allegations in the complaint. Plaintiff bears the burden of proof.

 

2)  Defendant has denied all allegations in the complaint and has no such documents at this time. Discovery is ongoing.

 

3)  Defendant has denied all allegations in the complaint, and disputes the amount prayed for or any other amount.

 

4)  Defendant disputes the amount prayed for or any other amount. No such documents exist at this time, discovery is ongoing.

 

5) SOL

 

6)  OBJECTION: PREMATURE: Discovery is ongoing. Plaintiff has not prevailed at trial causing defendant to prove affirmative defenses.

thank you!

  • Like 1
Link to post
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.