Midland did not serve the Complaint properly. What should my next step be?

[calivik]

Midland Funding did not comply with 

Rule 3.110

(b) Service of complaint

The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint. When the complaint is amended to add a defendant, the added defendant must be served and proof of service must be filed within 30 days after the filing of the amended compaint

They served my husband the complaint on the 77day and filed it on the 79day.

What should my next step be? We have not filed anything yet and have only a week to do so.

Any help appreciated.

TIA! 

[Harry Seaward]

I would proceed as though you were properly served. The alternative is a motion to dismiss on a technicality,  which if it's granted, they will turn right around and file a new suit and you're back at square one. 

[RyanEX]

See Paragragh (a) of the rule you are citing:

Quote

 

Rule 3.110. Time for service of complaint, cross-complaint, and response

(a) Application

This rule applies to the service of pleadings in civil cases except for collections cases under rule 3.740(a), unlawful detainer actions, proceedings under the Family Code, and other proceedings for which different service requirements are prescribed by law.

(b) Service of complaint

The complaint must be served on all named defendants...

 

Plaintiff is allowed more time to serve the summons in a collections case.

Who is named in the suit? Just your husband, you, or both? How long ago was it served upon him?

[calivik]

Hi thanks for your response.

My husband is the only one. He was served on June 18th. 

So does he just file his answer now?

[calivik]

2 hours ago, Harry Seaward said:

I would proceed as though you were properly served. The alternative is a motion to dismiss on a technicality,  which if it's granted, they will turn right around and file a new suit and you're back at square one. 

Thank you!

[LaneBlane]

These are the standard questions to answer if you'd like assistance with your next step:

 

Who is the named plaintiff in the suit?

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

3. How much are you being sued for?

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

5. How do you know you are being sued? (You were served, right?)

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

7. Was the service legal as required by your state?

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

9. What state and county do you live in?

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

11. When did you open the account? (looking to see which agreement/contract may be applied)

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

13. What is the SOL on the debt?

14. 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).

15. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

16. 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 disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').

17. 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?

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

[RyanEX]

2 hours ago, calivik said:

 

Hi thanks for your response.

My husband is the only one. He was served on June 18th. 

So does he just file his answer now?

Yes, he'd want to file the answer by July 18th (30 days). I'd try to do it by the 16th or 17th just to have a little room in case something goes wrong on the way to the courthouse (flat tire, etc.).

You should answer the questions LaneBlane posted above, they will help us help you :)