caramia1225

Improper Service and Lack of Personal Jurisdication Defenses in CA

Recommended Posts

Hi All,

 

I'm in a bit of a sticky situation with little funds to pay a lawyer. I have fought and won collections agencies before, but this is something different.

 

A few months ago, a process server came to my door asking for a "John Doe". This John Doe was one of several defendants on a lawsuit from California, I reside in Florida. Now, I noticed that the case named my husband as one of the defendants ( he is not the John Doe they asked for) and the plaintiff claimed that the defendants violated their copyright selling certain goods online. I happened to have a man working on some home repairs that day and the process server spoke to him and gave him the papers, not me, but I overheard the whole conversation. By the time I went outside to investigate, the guy was already in his car and drove away.

 

I have been separated from my husband for several months before this happened and still have not been able to get in touch with him. We were not on speaking terms for some time and now I am trying to let him know about this. As far as I know, my husband has no idea that this is going on. I am not named in the case, just my husband. Even though we are separated, we are still legally married.

 

They have been sending all the court papers here since and filed for a default judgement on my husband to be heard in a few weeks.

 

I have to see if I can do something to at least stop the default until I can get in touch with my husband and he can properly defend himself.

 

I was thinking that I could file something with the California court claiming improper service. I know nothing about CA laws, so not sure what constitutes proper service. This is still his legal residence, but he is not here and he never received anything. I would be willing to file an affidavit with the court that he has not been here and I can not get in touch with him, but not sure if CA courts would care or if I can file anything since I am not party to the case.

 

In addition to that, I believe that California would not have personal jurisdication to hear the case as my husband has no connections to CA and he has never done business there. In all the paperwork I see that they filed, I do not see any proof that he did any business there. Even if he sold something online to a customer who resided in CA, would that matter? But like I said, they presented all their proof to the court and I don't see anything claiming that. They just say that they have personal jurisdication as a matter of fact.

 

Any suggestions would be greatly appreciated. My goal is really just to put a stop to the default and make them have to bring the case to Florida if they want to persue it.

 

 

Share this post


Link to post
Share on other sites

Hi!

I read your post earlier, then, came back for a second reading before calling it quits for the night.

Why not just ship everything back to the court it was filed at as, "no such person at this address, at least since, (whatever month prior to the service you mention hubby has already disappearing by)?

No need to get all Tolstoy and write the War & Peace extended play version, you know what I mean?

Just a concise, but informal and housewife-y sounding heads-up, you know?

Something like,

Several months ago / Earlier this year, here, where I live alone, a man arrived unannounced.

Fortunately, my handyman was here at the time; accepted this from him; and, brought it to me.

I rushed outside to let the deliveryman know he had the wrong address for the

person he asked my handyman for, (you put the name), but the deliveryman was already driving down the lane.

Since then, I have left the papers here for what i feel has been a generous period of time, exercising care they not become wet, soiled or otherwise damaged while waiting for the deliveryman to return for them.

But, nobody has come for them, and, with the new year approaching, I would like this negative energy out of my house; it feels oppressive to have my otherwise happy home tainted with such things.

Since yours is the courthouse listed, I hope you can track down the rightful owner of these surely expensive, legal papers.

Please, see that these are returned to their rightful owner.

Thank you in advance, and, happy holidays!

Warmly,

cursive, first name only

And that, is the end of that.

No need to take extraordinary measures.

You have exercised the general care toward this property of another interloping in your home, and been more than patient for someone to correct their error.

Surely you feel no obligation toward acting as an officer of the court simply because someone your abandoner spouse may have once known, or, someone sharing that person's name, happens to be on some paperwork your handyman mistakenly accepted from a fast-driving deliveryman months ago.

Just ship it to the proper court, (listed on the paperwork), and tah-dah!

Your work is done.

Truly, no need to go hunting down someone who has abandoned you.

if you are seek7ng him for legal separation, or, dissolution of the marriage, a divorce attorney would gladly publish the notification in the proper venues for you.

No worries.

I wish you happiness and calm from being freed.

Warmly,

Share this post


Link to post
Share on other sites

The service is legal because it IS still his legal address even if he isn't there and you both are still legally married even if separated.

 

Your husband needs a lawyer to raise the jurisdictional issues.  You also need to get his name off of any joint accounts ASAP or open your own because if they get that default judgment they will come after your assets too.  CA is a community property state and all they would have to do is domesticate that judgment in FL and therefore could come after yours.

Share this post


Link to post
Share on other sites

Helping Greg, thanks for your feedback, you make it sound so easy and I wish that it was, but I do believe that the court will not care since it was delivered to his legal residence as Clydesmom and Bassplayr said. Thank you Clydesmom and Bassplayer, so much appreciated. Bassplayer, I will respond in PM as well.

 

Yes, Florida is not a community property state. We also have something called tenants by the entirety that anything acquired after marriage is owned by both spouses and can not be separated. The only exceptions I believe are motorvehicles. So, my understanding is that a judgement creditor against one spouse can not come after assets of the other spouse except for a jointly owned car unless the car is titled "spouse1 AND spouse2". If it says "spouse1 OR spouse2", then they can take it.

 

Good news is that my husband finally called this morning so now I have a hold of him to answer this complaint....whewwwww. I just hope it's not too late. They have a default judgement hearing set for the end of the month and I thought he only had a certain amount of time to answer the complaint and that time passed. Not sure how that works.

 

Okay, so the plan will address two aspects, first filing an answer to the complaint challenging the service and jurisdiction. Then I need to protect my interest in assets. I spoke to an asset protection specialists for a free consult and he confirmed what I had asked him. To make sure that my husband has no money in a bank account in his name. Our joint bank account is SUPPOSED to be protected as tenants by the entirety, but don't trust the bank to do the right thing when presented with the judgement by the creditor. So, I will move all funds into a bank account only in my name. Do it in a way where I take the cash out ( it's not much ) and re-deposit, not transfer with a paper trail. The house is in my name only and protected by the homestead exemption here in Florida anyway ( it's also completely underwater - mortgage owed is more than the property value ), so no issues there.

 

The only thing that is vulnerable is his car and my car. The asset protection specialist I spoke to said that he has rarely seen a judgement creditor go after a vehicle unless it's something really expensive like a Lambo, or collectable, etc. But, I am not sure if I believe that. One car only has a 2k book value and is improperly titled as "spouse1 OR spouse2" and the other has a BV of about $25k and is only in my husband's name. I was planning to put a lien on my husband's car since all the money to buy it came from me. It would be hard to prove that paper trail if I had to, it's kind of convoluted, but it will make them have to go through the time and expense of challenging the conveyance if they want to try and take it. I can also then change the title of both cars to "spouse1 AND spouse2", to put another block in place that they would have to challenge.

 

If we had the funds, I would merely sell the cars to a "friendly" third party for the market price, which would pretty much be unchallegable, but unfortunately we don't have any friends with that kind of cash and we don't have it either to show the paper trail.

 

Now, I have very limited funds right now to pay a lawyer to file these papers ( I just lost my job a week ago - when it rains it pours! ). And I don't have a clue about CA rules. I have started going through CA rules of procedure but can't afford to make a simple mistake. Any guidance on filing or opinion about the asset protection strategies? I need a template for filing in CA for jurisdication and service and how exactly I need to file it in CA if I can't afford a lawyer. Going to go through the courts website today to gather as much info as I can.

Share this post


Link to post
Share on other sites
Guest usctrojanalum

Your making something your problem that is really not your problem.  Do you know where your husband lives?  Mail the papers to him so he can figure out what he wants to do.  There is nothing you can file with any court since you are not a party or an attorney.

Share this post


Link to post
Share on other sites

Either way, in my state at least(LA) there is a legal status called legally separated.  You are not divorced but it creates a legal separation between the husband and the wife for legal purposes--finances, etc.  Either way, FL is not a community property state and they cannot just come after her assets like that.  If they are joint assets, then they are fair game. 

 

Louisiana is the ONE state out of all 50 that follows a code based on FRENCH law not English law as the other 49 so you cannot compare LA to other states.  FL does not require legal separation and does not recognize it.  They are married until the divorce is final.  

 

I NEVER said they could come after her assets alone but anything that her name is on beside his is FAIR GAME.  

 

The asset protection specialist I spoke to said that he has rarely seen a judgement creditor go after a vehicle unless it's something really expensive like a Lambo, or collectable, etc. But, I am not sure if I believe that. 

 

Actually it is accurate.  The reason is cars are sold at auction for anywhere from 10-40% of their actual cash value.  Then they have to pay the auction house, taxes, the state mandated exemption to the owner and finally after all that they get to keep anything that is left to put towards their judgment.  For the majority if used vehicles they are not worth the time, expense, and trouble to do so.  If the vehicle is worth more than the judgment:  fair game.  

 

If we had the funds, I would merely sell the cars to a "friendly" third party for the market price, which would pretty much be unchallegable, but unfortunately we don't have any friends with that kind of cash and we don't have it either to show the paper trail.

 

Actually it is VERY much able to be challenged because it would be a fraudulent transfer of the asset to deliberately hide it from a creditor.  Any transfer of an asset within 6 months up to a year or more depending on the circumstance can be rescinded by the court.

 

Get your funds into an account with your name on it alone and let your husband deal with them.  It is his problem not yours.

  • Like 1

Share this post


Link to post
Share on other sites

usctrojanalum, thanks very much for your feedback. Thing is, I have finally gotten in touch with my husband this morning. Since we are still legally married and a judgement will no doubt effect me, it is my problem too, so I need to protect myself and would like to help him as well since he did not know about this. I have spoken to a few lawyers and came up with what I think I must do to buy time and make things more difficult. Don't have funds to have a lawyer do it, so figuring out how I can do myself. I posted here asking for assistance... http://www.creditinfocenter.com/community/topic/325116-need-to-file-two-motions-in-ca-need-help-with-template-and-procedure/

Share this post


Link to post
Share on other sites

Actually it is accurate.  The reason is cars are sold at auction for anywhere from 10-40% of their actual cash value.  Then they have to pay the auction house, taxes, the state mandated exemption to the owner and finally after all that they get to keep anything that is left to put towards their judgment.  For the majority if used vehicles they are not worth the time, expense, and trouble to do so.  If the vehicle is worth more than the judgment:  fair game. 

The judgement that they are looking for is over $200K and the car has a Kelly BV of $25k. In your experience is that something you think they would go to the trouble of going after?

Share this post


Link to post
Share on other sites

The judgement that they are looking for is over $200K and the car has a Kelly BV of $25k. In your experience is that something you think they would go to the trouble of going after?

 

No.  Kelly BV value has no bearing on it.  The car would likely sell at auction for $5k.  Then there is the state exemption that goes to your husband.  Auction fees, taxes, etc.  it isn't worth the time and trouble.

Share this post


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.