MysticRhythm

Confused...Haven't been served with lawsuit papers but I got notice from court...

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Hello all. I posted in here last August looking for advice as I recieved a letter from a law firm saying I may be sued over a debt by Midland Funding here in Texas. I had not been served with any lawsuit papers yet, and was advised once I was I could request arbitration thru JAMS and then file a motion to compel arbitration with the court. I recently got a notice from the court notifying me that I have a hearing on this matter set for May. I have NEVER been served with any papers about the pending lawsuit though, so I never got to request arbitration. I'm very confused... Can someone advise me how to proceed? 

Also, I decided to look up the case on my county's court site... I've attached a copy of the steps that have been taken thru the court so far. It appears they tried to serve me but failed. How can I have a court date set without ever having been served? 

Capture+_2019-04-08-00-03-00~2.png

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8 hours ago, MysticRhythm said:

How can I have a court date set without ever having been served? 

Looking at that court docket it appears when personal service was not accomplished the court most likely authorized alternative service by mail.  A letter was mailed to you on January 24, 2019.  That was probably your summons.

8 hours ago, MysticRhythm said:

I posted in here last August looking for advice as I recieved a letter from a law firm saying I may be sued over a debt by Midland Funding here in Texas.

Do you still have that letter? What is the date on it?  I ask because if you look at the time line on the court docket they had already filed the suit in mid-July 2018.  If you go back and look at the letter it may have been from a bankruptcy attorney and it was telling you not that you MIGHT be sued but that you were.  If that is the case you should have been watching the docket for something like this.

8 hours ago, MysticRhythm said:

I recently got a notice from the court notifying me that I have a hearing on this matter set for May.

HOW did you receive this notice?  This is important because if you received it via US Mail then the court likely considers that you have been served by alternative service and you need to start defending this case.  

8 hours ago, MysticRhythm said:

Can someone advise me how to proceed?

Presuming you have been served for the purposes of this discussion I would get copies of EVERYTHING in the case file so far immediately.  File an answer using arbitration in JAMS as an affirmative defense and immediately file a motion to compel arbitration at the same time as filing the answer.  Under Justice Court rules when you file the MTC the have to set a hearing date on that motion within 2 weeks.  That would pre-date the May hearing on the case.

Another avenue is to look at the dates on EVERYTHING from that letter to how/when you were supposedly served.  Was that letter in January sent to an out of date or wrong address?  Was it sent certified mail showing proof of delivery?  It is possible there are FDCPA violations connected with this and instead of JAMS you could hand this off to a consumer attorney who will take the case for free.  Instead of you being nailed for the debt Midland could end up paying you.

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3 hours ago, Clydesmom said:

Looking at that court docket it appears when personal service was not accomplished the court most likely authorized alternative service by mail.  A letter was mailed to you on January 24, 2019.  That was probably your summons.

If so, then I never recieved that letter.  I have been religiously watching my mail since August of last year for anything else related to this lawsuit.

 

3 hours ago, Clydesmom said:

Do you still have that letter? What is the date on it?  I ask because if you look at the time line on the court docket they had already filed the suit in mid-July 2018.  If you go back and look at the letter it may have been from a bankruptcy attorney and it was telling you not that you MIGHT be sued but that you were.  If that is the case you should have been watching the docket for something like this.

I do, and yes it does say that I am being sued but not by them.  There is actually no date anywhere on the letter, but I recieved it in August of last year.  Again, I have been on the lookout to be served, and have never seen anything.

 

3 hours ago, Clydesmom said:

HOW did you receive this notice?  This is important because if you received it via US Mail then the court likely considers that you have been served by alternative service and you need to start defending this case.  

I recieved it via mail, yes.  I did not have to sign for it, it was just in my mailbox with everything else.  I would have thought that I need to be served in person, or the citation left with a household member, or left on my door, to be properly served.  I guess not though.

3 hours ago, Clydesmom said:

Presuming you have been served for the purposes of this discussion I would get copies of EVERYTHING in the case file so far immediately.  File an answer using arbitration in JAMS as an affirmative defense and immediately file a motion to compel arbitration at the same time as filing the answer.  Under Justice Court rules when you file the MTC the have to set a hearing date on that motion within 2 weeks.  That would pre-date the May hearing on the case. 

At this point I'm going to assume you are right, so I'll head to the court to get the copies of everything as you suggested.  I'll take a look at everything and if I am considered to have been served correctly I'll proceed with filing an answer with the court, etc.  I'll look into the possibily of the FDCPA violations as well.

Thanks so much for your guidance, it's very much appreciated!

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2 hours ago, MysticRhythm said:

I would have thought that I need to be served in person, or the citation left with a household member, or left on my door, to be properly served.

In general:  yes this is how you would be served.  However, many states (and TX is one) have an alternative service procedure in place.  After a specified period of time attempting to serve someone by the required methods the court can grant an alternative process of serving the suit.  In Texas that is by mail.  That letter mailed in January is what that is I am guessing.

2 hours ago, MysticRhythm said:

I'll take a look at everything and if I am considered to have been served correctly I'll proceed with filing an answer with the court, etc

BEFORE you answer take all of it to a good Consumer Attorney for a free consult.  There are several in Texas.  If one is not nearby you can do it by phone and email them the documents in advance.  If they lied about where they attempted to serve you, your home address, or tried sewer service you would have FDCPA violations.  The attorney would know and advise you.  If there are no violations then you can go ahead pro-se and file your answer and MTC.  

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21 minutes ago, Clydesmom said:

In general:  yes this is how you would be served.  However, many states (and TX is one) have an alternative service procedure in place.  After a specified period of time attempting to serve someone by the required methods the court can grant an alternative process of serving the suit.  In Texas that is by mail.  That letter mailed in January is what that is I am guessing.

I see. I did look at many other similar debt lawsuits at the same court and saw many instances where after the citation was returned unexecuted they did serve using an alternative process and it states so clearly. Mine has no such entries regarding alternative service like the others. Will still go get copies from the court for sure. 

 

21 minutes ago, Clydesmom said:

BEFORE you answer take all of it to a good Consumer Attorney for a free consult

Thank you very much for the link... There are several in my area. I will certainly do so. 

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1 hour ago, MysticRhythm said:

I did look at many other similar debt lawsuits at the same court and saw many instances where after the citation was returned unexecuted they did serve using an alternative process and it states so clearly. Mine has no such entries regarding alternative service like the others. Will still go get copies from the court for sure. 

DO NOT go get copies yourself.  See if a friend can go.  That way if they really have not served you they still haven't.  Here is the dilemma:  if the letter is alternative service and you don't respond or show they get a default judgment and you have to try and un do it based on improper service.  Receiving the notice of hearing means you knew and could have done something.  BUT, if you go down there and get copies then they can serve you right then if they haven't served you yet.  They cannot serve a friend on your behalf.  So you get copies and can talk to a lawyer.  If the records show the court considers you served then you have a clear plan on what to do.  If the records who you have not been served then you have more time to talk to a lawyer about options.

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3 hours ago, Clydesmom said:

DO NOT go get copies yourself.  See if a friend can go.  That way if they really have not served you they still haven't.  Here is the dilemma:  if the letter is alternative service and you don't respond or show they get a default judgment and you have to try and un do it based on improper service.  Receiving the notice of hearing means you knew and could have done something.  BUT, if you go down there and get copies then they can serve you right then if they haven't served you yet.  They cannot serve a friend on your behalf.  So you get copies and can talk to a lawyer.  If the records show the court considers you served then you have a clear plan on what to do.  If the records who you have not been served then you have more time to talk to a lawyer about options.

Makes sense! Thanks for the warning, I'll have my sister get them for me then. 

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Ok, so I was finally able to get copies of the papers. The letter that is referenced on the screenshot I attached in my first post is a letter from the court clerk to the attorney stating no service is on file and the case is still pending, and asking for an updated status or else the case will be set on the judge's dismissal docket. 

 

There is also a Declaration of Not Found filed with the court by the person charged with serving me the papers. I'm frankly angry because he states he attenpted contact at my home 11 times, and left a delivery notice each time. He also state my vehicle was parked outside on 6 of the occasions. First of all, I'm a stay at home mom, I have never had anyone come to my door regarding this. Second of all, I ONLY park in the garage, so saying my vehicle was outside is an absolute lie. Thirdly, he says he left a delivery notice each time. Again, an absolute lie!

 

Since they have nothing on file stating I've been served and it's set for dismissal, should I just sit back and let it be dismissed at this point? 

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Keep a watch on the case to see if they try to obtain alternative service. If they do try that and are successful, then you will have to answer. If you have to go the route of answering via alternative service, I would file a complaint about the process server with the court and whatever licensing board deals with process servers in California. Don't do it now however because that will raise suspicions.

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1 hour ago, WhoCares1000 said:

Keep a watch on the case to see if they try to obtain alternative service. If they do try that and are successful, then you will have to answer. If you have to go the route of answering via alternative service, I would file a complaint about the process server with the court and whatever licensing board deals with process servers in California. Don't do it now however because that will raise suspicions.

Why a complaint?

They usually allow alternate service if any bona fide attempt has been made to serve.  For example, one time I was out of town for a week on vacation, so I got the alternate service since they stopped by my house twice when I was out of town.

There are several possibilities here, and only the last two would warrant a complaint.

1.  They will not even bother to try to serve you.  In that case, the case will be dismissed without prejudice, meaning they can re-file it later.

2.  They will try to serve you, and catch you when you are home.  In that case, you will go along as usual.

3.  They will try to serve you and fail.  In that case, they will need to use alternate methods of service, or else have the case dismissed as in 1.

The next two would warrant a complaint:

4.  They lie and claim they tried to serve you and you were not home, at times when you were home.

5.  The notorious "sewer service" in which they claim they served you when they didn't.  

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12 hours ago, BackFromTheDebt said:

Why a complaint?

They usually allow alternate service if any bona fide attempt has been made to serve.  For example, one time I was out of town for a week on vacation, so I got the alternate service since they stopped by my house twice when I was out of town.

There are several possibilities here, and only the last two would warrant a complaint.

1.  They will not even bother to try to serve you.  In that case, the case will be dismissed without prejudice, meaning they can re-file it later.

2.  They will try to serve you, and catch you when you are home.  In that case, you will go along as usual.

3.  They will try to serve you and fail.  In that case, they will need to use alternate methods of service, or else have the case dismissed as in 1.

The next two would warrant a complaint:

4.  They lie and claim they tried to serve you and you were not home, at times when you were home.

5.  The notorious "sewer service" in which they claim they served you when they didn't.  

If you read what the OP said vs what the process server said, then #4 would be the situation.

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23 hours ago, MysticRhythm said:

Since they have nothing on file stating I've been served and it's set for dismissal, should I just sit back and let it be dismissed at this point? 

Yes, watch the docket and wait.  Chances are pretty good it gets dismissed because the process server is an idiot.  Last thing you want to do is suddenly be known to the court where they effect service last minute and you have to deal with it.  

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On 4/12/2019 at 2:58 PM, MysticRhythm said:

Ok, so I was finally able to get copies of the papers. The letter that is referenced on the screenshot I attached in my first post is a letter from the court clerk to the attorney stating no service is on file and the case is still pending, and asking for an updated status or else the case will be set on the judge's dismissal docket. 

 

There is also a Declaration of Not Found filed with the court by the person charged with serving me the papers. I'm frankly angry because he states he attenpted contact at my home 11 times, and left a delivery notice each time. He also state my vehicle was parked outside on 6 of the occasions. First of all, I'm a stay at home mom, I have never had anyone come to my door regarding this. Second of all, I ONLY park in the garage, so saying my vehicle was outside is an absolute lie. Thirdly, he says he left a delivery notice each time. Again, an absolute lie!

 

Since they have nothing on file stating I've been served and it's set for dismissal, should I just sit back and let it be dismissed at this point? 

Is your correct address listed on the court documents?

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3 minutes ago, MysticRhythm said:
 

Yes, it's correct. 

Is the Notice to the court from an attorney's office or some rat-hole private server service? Or an employee of Midland (as usually the case)?

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13 minutes ago, fisthardcheese said:

Is the Notice to the court from an attorney's office or some rat-hole private server service? Or an employee of Midland (as usually the case)?

It's from a private server service. 

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