JOHNINLA

CALIFORNIA - Process Service Requirements NOT Met - "Sewer Service"

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CALIFORNIA - Process Service Requirements NOT Met - "Sewer Service"

 

I'm being sued by Hunt & Henriques and before I start filing my General Denial papers, I wanted to see if there are other avenues I should take because the summons was not served legally.

The date that the case was filed with the court was April 1st. The summons was just slid under the main doors of our apartment building on April 14th. The last entry on Case Summary is:
04/15/2016 PROOF OF SERVICE OF SUMMONS AND COMPLAINT FILED. SERVED AS
TO (my name without the "JR").

The fact that they left off the "JR" is relevent because my father (John SR) lives in the apartment next door. They also did NOT put an apartment number on the summons, so without "JR" or "SR" or an apartment number, there is absolutely nothing to determine if the summons is for me or my father.


Our apatment building has six units. There are six garage doors out front with two double doors as the main enterance in the middle. (It is obviously an apartment building and not a private residence.) The double doors do not lock. My neighbor that first saw the summons said he saw it laying on the ground as though it was just slid under the double doors. Another neighbor picked it up and put it in the junk mail box. And then my step-mother took it in her apartment because she thought it was for my father. We do have multiple security cameras so I will most likely be able to provide footage of the "sewer service", on top of at least two witnesses that saw it left on the ground.


Considering how sloppy this summons was served, what should my first step be? Motion to Quash seems like it might apply. Should I NOT file a General Denial answer yet?

My case question answers can be found below.


Any advice is greatly appreciated!!!

 

Sincerely,

John in LA

------------------------------

1.Who is the named plaintiff in the suit?
CAPITAL ONE BANK (USA), N.A.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Hunt & Henriques

3. How much are you being sued for?
$8,XXX

4. Who is the original creditor? (if not the Plaintiff)

5. How do you know you are being sued? (You were served, right?)
Summons left near enterance to apartment building.


6. How were you served? (Mail, In person, Notice on door)
The summons was slid under the main enterance door to the apartment building. It was not locked. There are six units in the building.

7. Was the service legal as required by your state?
NO

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
None that I know of.

9. What state and county do you live in?
California

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
4/2014

11. What is the SOL on the debt? 
4 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or   looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).
"Status: Pending"

Last Entry on Case Summary:
04/15/2016 PROOF OF SERVICE OF SUMMONS AND COMPLAINT FILED. SERVED AS
TO (my name without the "JR") .


13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.
No

15. How long do you have to respond to the suit? 
30 Days "after the summons and legal papers are served on you". That allegedly happened on 4/15.

(This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. 


Common Counts
Contract Rule 3.740 collections (09)

Plantiff: Capital One Bank (USA), N.A.
alleges that defendant
became indbted to plaintiff
-within the last four years
--on an open book account for money due.
--because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff.

-within the last four years
--the money lent by plaintiff to defendant at defendant's request
--for money paid, laid out, and expended to or for defendant at defendant'sspecial instance and request.

-$8,XXX, which is the reasonable value, is due and unpaid despite plaintiff's demand,
--plus prejudgement interest at the rate of 0.0000 percent per year from March 11, 2015


Did you receive an interrogatory (questionnaire) regarding the lawsuit?
No


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
Nothing
 

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You said that there was a proof of service filed.  You should go to the court clerk's office and ask for a copy of that POS.  if they are supposed to serve you in person, and they lied and claimed that they did, I would look to see if the security camera footage is available.  I'd also get written statements from the witnesses who found the summons on the ground, etc.  In some states you can pursue a claim against the process server directly.  This could go to fraud upon the court, but not by the plaintiff, unless you could prove that the plaintiff either knew about the sewer service, or took part in it.  And that would be mighty hard to prove in most cases.

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unless you could prove that the plaintiff either knew about the sewer service, or took part in it.  And that would be mighty hard to prove in most cases.

Seems like this might be worth a CFPB and/or Ca Atty General complaint. They'd have the resources to look into it. Chase got sued for it in California. https://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-announces-suit-against-jpmorgan-chase

 

For Motion to Quash/Special Appearance, doesn't the Plaintiff just make sure the defendant is served correctly next attempt? Is there a benefit doing that instead of appearing and asking for an extension of time to answer?

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2 hours ago, CCRP626 said:

For Motion to Quash/Special Appearance, doesn't the Plaintiff just make sure the defendant is served correctly next attempt? Is there a benefit doing that instead of appearing and asking for an extension of time to answer?

My thinking was that the more paperwork I can make them do, and the more time and money I can make them spend, the less lucrative my case will be for them to pursue. I read one CIC forum that the law firms usually farm out these cases to rent-a-lawyers with a $1000-$1500 budget @ $100/hour. If you can make them work more than the allotted 10-15 hours, they are then working for free. They are going to quickly move on to the next case as soon as that happens.

I read some of the Chase suit and found some useful references. Thanks!

I will definitely be looking into the possibility of fraud charges regarding the "sewer service". One of my neighbors that saw the summons on the ground is a lawyer, and my wife works for the Los Angeles Public Defender's Office, so I do have some resources I can tap into for advice.

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they could be claiming substituted service. check with the court or the court website. if there is a POS filed, you want to get a copy and find out what type of service they claim.

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3 hours ago, CCRP626 said:

For Motion to Quash/Special Appearance, doesn't the Plaintiff just make sure the defendant is served correctly next attempt? Is there a benefit doing that instead of appearing and asking for an extension of time to answer?

either that, or the judge can deny the motion and state that defendant knew about the lawsuit, with ample time to answer the complaint, and defendant was not prejudiced. I believe there was a member in the past with a similar experience and outcome.  of course, its not always the case.

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@JOHNINLAI think the payment plans used to be like you mention to where you put up enough of a fight it wouldn't fit into their budget and they'd give up. Now it maxes out for what the client will pay the lawfirm but if it takes more hours to pursue it to the end they're expected to see it through without getting paid additional hours from the client. I have a feeling if the Plaintiff wins, the defendant would pay those hours but don't know how California is about that. You'll probably see the same firm taking all the credit card cases for Cap One in your area, so one that takes a bit of effort works out while they also get paid for the no show default judgments.

I hope you win against Cap One. One of the things as an outsider I like reading about for California cases is when the Plaintiff has to name who will be served within 150 miles (CCP 96/98) as a witness. The rest of us are stuck with generic someone with knowledge located somewhere in the U.S. may be there on trial day.

 

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A good way to respond to a lawsuit is with a delaying motion.

1. Motion to quash based on insufficiency of service of process (wrong address or served wrong party).

2. Possibly motion to dismiss for  insufficiency of process due to wrong name on summons/complaint.

But, defendant probably not prejudiced in this case.

At best complaint dismissed without prejudice.

Don't even think about hiding out and pretending you weren't served!  //

You can't win without some kind of defense.

Merely filing answer denying claims is no defense.

We know OC has and can prove standing to sue.

We know action is timely under CA law.

(Still worth researching use of shorter VA 3 year SOL for unwritten contracts.)

No way to know if this OC would follow you into private contractual arbitration.

Case may not be winnable.

But once you respond they might be flexible in settling.

My 2 cents.

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1 hour ago, Happybluesky said:

No way to know if this OC would follow you into private contractual arbitration.

Unless it's a really old card with a survivability clause, Cap One got out of arbitration early 2010.

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You need to look at the court file and find the proof of service.  THat will tell you what plaintiff's process server is saying (under penalty of perjury) about how you were served.  It will also better inform you as to whether you have a claim.

 

Whether to file a motion to quash is a decision you will have to make.  You should prevail if plaintiff's process server lied about service but it will take a lot of work drafting the motion and getting declarations to support it.  And, almost always, plaintiff will just serve you properly and you will have to respond.

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14 hours ago, CCRP626 said:

Unless it's a really old card with a survivability clause, Cap One got out of arbitration early 2010.

The only Cap One card I have is from 2001.

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I was finally able to go and get a copy of the Proof of Service. It's a complete lie. It states I was personally served "Julio Ascorra" and the time and date which I was allegedly served I was clocked in, at my job, which has plenty of security camera footage showing me NOT being served.

So there's video of me at work NOT being "served in person", plus the security video from my apartment of me NOT being "served in person", and several witnesses that can also attest that it was "sewer service". I have more than enough rock solid evidence to convict this guy of Abuse of Process and Negligence. And the "sewer service" has only added to the stress of this  whole situation, so a case for Negligent Infliction of Emotional Distress could also be plausible.

So what do I do next in terms of the "sewer service" and how it plays into fighting the case from the summons which was not legally served? 

Is the service issue a whole another issue? Or does it change how I respond to the summons?

...or would you recommend I go this route? 

 

THANK YOU ALL SO MUCH FOR YOUR INPUT!!!

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I'd file the motion to quash - with all the declarations attached.

 

Then I would file the process server too. Find his/her bonding company and serve a copy on them. The bonding company will contact you and want "to make this go away." Plus the company will cancel his bond and he's effectively done as a process server. 

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Just wondering what you end up doing about this, I had a very similar thing happen to me, and don't even know where to start. Only difference it was for a Target Credit Card. Im so pissed at the trash service, and not sure if its even worth it going after the process server or not.

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@Kathy78 welcome Kathy78, sorry you are on a similar situation. how were you  allegedly "served"?

perhaps you can start your own threat and post a bit more of info?

 

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I got home yesterday and found a complaint for money for a target credit card, it was under the doormat at my house. I live on a main street so anyone could have left it there. My co-worker said they could even take money out of my paycheck. I  got divorced and since then Im living paycheck by paycheck. I don't even know where to start figuring this out. I called Target and they said I have to speak to the lawyers now. The amount I owe is approximately $3500, the credit card was under my name but my ex is the one who mainly used it and never paid it, by the time I realized he had wrecked my credit we were already divorced. :( 

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@Kathy78 they can take money out of your paycheck only if they get a judgment, but since you are aware of the summons, you can now start fighting it and avoid that scenario.

the good think is that you are on the right place, and the first thing you need to do, is file a general denial. A general Denial is used to answer a complaint that is not verified. I bet that the complaint is not verified. you have to file this general denial no later than 30 days after the date of service.

 

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@Kathy78 I wouldn't call them. I doubt it would help you and honestly it could hurt you. If they've filed a lawsuit against you, that is the language they're speaking and IMO the best way to proceed is to speak the same language back to them, beginning with the general denial sadinca mentioned above.

Your own thread would be the best way for us to keep up & help you; copy & paste these questions with your answers http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/. I recommend keeping some of the answers a little vague (dollar amts, exact dates), in case any prying eyes visit the board:)

CA has good laws on the books to help us fight these kinds of lawsuits.

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