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Served summons 3 years after filing by Persolve


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Hi all,

I've lurked as hard as I could and I'm still puzzled about my situation.

I'm located in San Diego, California. I was served on 4/10/2017 through substitute service (although the summons says 4/11/2017). I did receive a mailed copy a few days later. They never attempted to serve before this. This was a summons regarding a case filed in  12/31/2013. So they took roughly 3 years and 4 months to serve me. No proof of service has been filed yet. The case type is Rule 3.740 Collections.

The clock on the debt started in 1/02/2010 (within the SOL by 2 days).

I bring this up because according to CRC 3.740:

Quote

 

(d)    Time for service

The complaint in a collections case must be served on all named defendants, and proofs of service on those defendants must be filed, or the plaintiff must obtain an order for publication of the summons, within 180 days after the filing of the complaint.

 

How can a proof of service be submitted more than 3 years after the case was filed? There's no request for alternative service methods that would've warranted them the ability to push out the deadline to 360 days... which would've still been violated.

Can they still pursue this case if the stipulation in CRC 3.740 restricts them explicitly?

Also, if they never file a proof of a service; and they're just trying to harass me, is me requesting a dismissal or filing an answer (where I generally deny everything) going to allow them leeway against never filing proof of service within the 180 days? They're also asking for 10% per anum on the principal amount, so allowing them 3 years to finally serve me lets them add 3 years of interest.

Here's the register of actions for clarity:

Case Number: -----------------------
Date Filed:    12/31/2013        
Case Title:    Persolve LLC vs. ---- [IMAGED]    
Case Status:    Pending        
Case Category:    Civil - Limited    Location:    Central        
Case Type:    Rule 3.740 Collections    Judicial Officer:            
Case Age:    1202 days    Department:    C-07

Future Events
No future events


Register of Actions
08/03/2014    Case reassigned from C-06 to C-07 effective 08/03/2014.            
01/02/2014    Case initiation form printed.        Notice of Case Assignment - Limited Collections SD    
01/02/2014    Case initiation form printed.        Notice of Case Assignment - Limited Collections SD    
01/02/2014    Case initiation form printed.        Notice of Case Assignment - Limited Collections SD    
12/31/2013    Case assigned to Department C-06.            
01/02/2014    Summons issued.            
12/31/2013    Original Summons filed by Persolve LLC.
12/31/2013    Civil Case Cover Sheet filed by Persolve LLC.    
12/31/2013    Complaint Demanding Less than $10,000 filed by Persolve LLC.

 

Thanks

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I don't know California law or procedure. But, broadly speaking, it sounds to me like you have grounds to file a "Motion to Quash Service and to Dismiss For Failure to Prosecute." This might be called something different in the California court system, but the principles are the same. 

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I am not an attorney but I think you have sufficient grounds to be home free on this one.  

http://www.legaldocspro.net/blog/mandatory-dismissal-in-california-for-delay-in-prosecution/

"The grounds for involuntary dismissal for delay in prosecution can be either mandatory or discretionary.  The mandatory grounds which apply in the absence of a specific exception are:

Failure to serve defendant within 3 years or return proof of service within 60 days after the 3–year period. Code of Civil Procedure § 583.210;"

In other words, this looks to be a mandatory involuntary dismissal, and since so much time has passed that SOL is gone now, a dismissal here should wrap this one up for good.  Did you live at the same address from the time they first filed the case until you were served?  There can be an exception to the mandatory dismissal, but they would have to prove the circumstances.  Under 583.210, they have to serve you within 3 years.  Obviously they did not make it in time.  They probably served you anyways because most people do not know the laws and would not know that the case was ripe for mandatory dismissal.  Check out what 583.250 says:

"(a) If service is not made in an action within the time prescribed in this article:

(1) The action shall not be further prosecuted and no further proceedings shall be held in the action.

(2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties.

(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute."

So, I would motion to the court for involuntary dismissal, citing 583.250, and noting that (b) makes it clear that dismissal is to be mandatory and no excuse or exception can apply unless specified by law.

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On 4/16/2017 at 9:55 PM, kraftykrab said:

I am not an attorney but I think you have sufficient grounds to be home free on this one.  

http://www.legaldocspro.net/blog/mandatory-dismissal-in-california-for-delay-in-prosecution/

"The grounds for involuntary dismissal for delay in prosecution can be either mandatory or discretionary.  The mandatory grounds which apply in the absence of a specific exception are:

Failure to serve defendant within 3 years or return proof of service within 60 days after the 3–year period. Code of Civil Procedure § 583.210;"

@kraftykrab

I didn't know about this. Looking over CRC 3.740, there's no language in it that exempts it from CCP 583.210's 3 year service limit. I think the proof of service part is amended to be 180 days because of its exemptions to CRC 3.110; other than that it sounds like this is a done deal. I was living at the same address for the duration of the 3 years from filing... I've been living in San Diego county for more than 7 years... so there's no way in hell they could ever get an exemption to it.

Thank you for showing this to me.

On 4/16/2017 at 10:25 PM, BV80 said:
 

@ImproperlyServed

Start reading on page 81 of the following link.

http://www.courts.ca.gov/documents/title_3.pdf

@BV80

I've read CRC 3.740 about a million times over the last couple of days. From what I can tell, they must serve me and have proof of service filed within 180 days of filing the complaint. Whether that results in sanctions or dismissal is discretionary. Everything after that comes into play after proof of service has been filed. However, I'm not seeing anything in CRC 3.740 that means it would be exempt from being dismissed by CCP 583.210 because of missing the 3 year time limit. I wonder if they can even file a proof of service without the case being dismissed by the court.

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Honestly I would not rely upon the court to do those things.  I would move for dismissal myself.  I've personally seen where the courts here were supposed to act on their own to remove stale cases from the docket and do nothing.  That's why the law allows "upon motion of the court or other interested party", I believe....because if we had to wait for the courts, we'd grow old doing it.  I'm sure that not every state operates the same way, but all the same, I'd just file a motion to dismiss it myself. 

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Forget about the rules of Court.  That just complicates the analysis and generally it imposes requirements on the Courts as opposed to granting rights to the defendant.

 

But the provisions of CCP 583.210 are mandatory ((a) “shall” be served, (a)(1) “shall not”  be further prosecuted) (583.250 (b): “the requirements of this article are mandatory...”).  As one court said, “The statute is ‘jurisdictional’ in the sense that the court has no power to excuse the delay, nor can it refuse to act merely because the party fails to make a motion for dismissal. It has power to act only in a certain way, that is, by ordering a dismissal. Not only is the court's duty to dismiss independent of any request by the defendant, dismissal can be entered without notice to either party”.  Floyd Neal & Assocs., Inc. v. Superior Court, 72 Cal. App. 3d 734, 738, 140 Cal. Rptr. 301, 304 (Ct. App. 1977). 

It appears that your complaint was not served within the required time.  If so, and if none of the exceptions in sections 583.220-240 apply, the Court should grant a motion to dismiss or motion to quash on that basis.

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On 4/19/2017 at 2:27 PM, calawyer said:

Forget about the rules of Court.  That just complicates the analysis and generally it imposes requirements on the Courts as opposed to granting rights to the defendant.

 

But the provisions of CCP 583.210 are mandatory ((a) “shall” be served, (a)(1) “shall not”  be further prosecuted) (583.250 (b): “the requirements of this article are mandatory...”).  As one court said, “The statute is ‘jurisdictional’ in the sense that the court has no power to excuse the delay, nor can it refuse to act merely because the party fails to make a motion for dismissal. It has power to act only in a certain way, that is, by ordering a dismissal. Not only is the court's duty to dismiss independent of any request by the defendant, dismissal can be entered without notice to either party”.  Floyd Neal & Assocs., Inc. v. Superior Court, 72 Cal. App. 3d 734, 738, 140 Cal. Rptr. 301, 304 (Ct. App. 1977). 

It appears that your complaint was not served within the required time.  If so, and if none of the exceptions in sections 583.220-240 apply, the Court should grant a motion to dismiss or motion to quash on that basis.

This is welcome news for sure. I'd be surprised if they could argue an exemption when I lived at the same address during the time they could've legally served me... and I hold a security clearance. I should be, by definition, easy to look up in government databases.

I hope anyone else that is in a similar circumstance finds this thread. I talked to numerous lawyers during "free consultations" that insisted that them serving me after 3 years "wasn't a big deal."

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20 hours ago, ImproperlyServed said:

I'd be surprised if they could argue an exemption when I lived at the same address during the time they could've legally served me... and I hold a security clearance. I should be, by definition, easy to look up in government databases.

 

That will help too.  And you don't specifically say so, however it seems that they ultimately found you at the address where you have been all along.  So whatever diligence they were able to muster to serve you now, they could have done before.

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  • 4 weeks later...

Woow.  This company Persolve is so sneaky.  Your not the only one that was improperly served by this same company .  They filed papers for me back in 2007 and they said they substitute served an old address but I had moved to Nevada 4 years prior to that.  Never have I received papers while I've lived here and all of sudden in March this year there was a levy placed on my joint bank account.  I've seen other articles of cases this company has tried getting money from and some people were successful in getting the case dropped and some not so much.  I'm hopeful something will be in my favor.  These jackoff's will get a good old battle with me.  

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