mkb1

Service process not followed- how to work that into a response?

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I found a packet of papers in my mailbox 2 days ago, not in an envelope, mixed in with the other mail.  It looks like a summons, but every stamp and signature on it is clearly computer generated.  The "Return of Service of Summons" at the bottom of the page isn't filled out at all.  There appears to be a case number at the top of the page, so my next move is to go online and attempt to find out if this is even real.

If this IS a summons that has been filed, I plan to answer the summons.  It is my understanding that the summons was NOT served the way it should be in my state.  How do I work that into a written response?

1. Who is the named plaintiff in the suit? - Cavalry SPV 1, LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)  Lloyd and McDaniel, PC 

3. How much are you being sued for? $1300

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

5. How do you know you are being sued? (You were served, right?) Found what looks to be a summons in my mailbox, not in an envelope, mixed in with the other mail, 2 days ago.

6. How were you served? (Mail, In person, Notice on door) In mailbox 2 days ago.

7. Was the service legal as required by your state? Not as I understand it.  In addition, the "Return of Service of Summons" portion at the bottom of the summons is not filled out.

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

9. What state and county do you live in? - Indiana, Hendricks- although one page in the packet says that I live in Hamilton county.

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2016

11. When did you open the account (looking to establish what card agreement may be applicable)? 2014

12. What is the SOL on the debt? To find out: 10 Years

Statute of Limitations on Debts

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

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

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). No

16. How long do you have to respond to the suit? (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. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Summons says it was filed on 1/30. Also says I have 20 days to respond after I receive the summons, or 23 days if received by mail.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Three copies of the complaint, an affidavit of debt that appears to have been filed in NY state, a DoD status report that says I'm not in the military, a bill of sale of the above debt, screenshots of a Citibank account with my info, and something labeled "Odyssey File and Serve-Envelope Summary" that says the case is located in Hamilton County.

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35 minutes ago, mkb1 said:

It is my understanding that the summons was NOT served the way it should be in my state.  How do I work that into a written response?

If you respond, you waive service.  Therefore 'working it in' is irrelevant.  If you are sure you weren't properly served and you need a hobby, you can ignore the summons and wait for them to get default judgment, and then file a motion to set aside the default on the grounds that the service was improper.  If the process server did in fact file an affidavit of service with the court, it will be very difficult to prove you weren't actually served (proving a negative), especially since you do live at the address where the papers were mailed.

The other thing is every jurisdiction provides for alternative service.  If the process server tried to serve you, and you did not answer the door, they can get permission from the court to service you by mail.  This is likely what happened.

So bottom line - Cavalry suing on a $1,300 two year old Citibank debt.  Your only real shot is arbitration assuming you weren't sued in "small claims" court.

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1 hour ago, Harry Seaward said:

  If the process server did in fact file an affidavit of service with the court, it will be very difficult to prove you weren't actually served (proving a negative), especially since you do live at the address where the papers were mailed.

The other thing is every jurisdiction provides for alternative service.  If the process server tried to serve you, and you did not answer the door, they can get permission from the court to service you by mail.  This is likely what happened.

The packet/summons wasn’t mailed. It was just sitting in my mailbox with no envelope. The “Return of Summons of Service” isn’t filled out, either, so I have no idea how long everything was there. I don’t check my mailbox every day. That being said, is that still proper service as the statute is written?

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1 hour ago, mkb1 said:

That being said, is that still proper service as the statute is written?

Probably not, but trying to play games with service of process is a fool's errand. Even if you're successful in arguing you weren't properly served, all Midland has to do is reserve you. And if you don't answer the door again, they'll get leave of the court for alternative service. 

The rules for service of process exist to try to prevent an unscrupulous plaintiff from getting a default judgment against an unwitting defendant. We can have a separate discussion about Midland's scruples, but at this point, you're anything but an unwitting defendant. 

To that end, a claim of improper service is akin to an affirmative defense in that the burden of proof falls on the party making the claim.  The Return of Summons may not be completed on the copy you have, but that doesn't mean it wasn't filed out by the process server when he dropped off  the court copy. (Logically, that's how it has to work, by the way.)  Can you prove you or someone else in your home did not personally accept those papers in the face of the process server's sworn testimony to the contrary?

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Thanks for taking the time to reply. 

I got a copy of the actual summons page mailed to me yesterday from the local sheriff's department. This copy had the "Return of Summons of Service" section filled out. 

After reading through several other topics in this forum, I have decided to file a MTC arbitration, per my card member agreement.  That agreement had not been submitted into evidence yet.

I will keep everyone posted on the results.

Thanks again!

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Just got word today- the judge issued an order already! No hearing!

Here's the exact verbiage:

"IT IS HEREBY ORDERED that this proceeding is stayed to allow Defendant opportunity to initiate arbitration.

IT IS FURTHER ORDERED that if Defendant does not initiate arbitration within sixty (60) days from the date of entry of this Order, Plaintiff is entitled to file Notice with the Court and this case will be restored to this Court’s active docket "

Looks like I'm off to fill out that AAA arbitration form I printed out.

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