Portfolio recovery Summary of judgment

[Jeroam]

Portfolio filed a motion for Summary of judgment but sent it to the wrong address. 

Portfolio also served my neighbor and not me. 

They are attempting to collect a debt that I believe is owed by my ex wife. 

I would like this to go to trial

The court is aware that portfolio sent the summary summons to the wrong address but i only have 3 days to file a response. 

 

Any suggestions????? Thanks in advance

[Clydesmom]

27 minutes ago, Jeroam said:

The court is aware that portfolio sent the summary summons to the wrong address but i only have 3 days to file a response. 

You need to immediately file an answer and an opposition to their MSJ.  Once that is done then you can begin to craft a defense.

28 minutes ago, Jeroam said:

They are attempting to collect a debt that I believe is owed by my ex wife. 

I would like this to go to trial

Pump the brake here for a minute.  AZ is a community property state.  Was this debt incurred while married?  Was your ex-wife ordered to pay it as part of the divorce?  The reason is two fold:  If it was a joint account and/or run up during the marriage you could still be legally responsible.  Are they suing her too or just you?  If part of the divorce decree required that she pay this debt then you have a bigger problem.  The creditor(s) are not a party to a divorce decree and cannot be legally bound by it.  It is the biggest pitfall of dividing debt that way in a divorce.  If one spouse defaults the other suffers the consequences.  You would need to settle this and go after her if that is the case if she doesn't step up and take care of it first.

[Jeroam]

We were never legally married, I used the term casually. We lived together and she had access to all my information. I have since relocated to AZ with our children. She does not participate in any manner except in causing problems. I am sole legal and physical guardian of the children. She does has not seen them in 6 years. 

[Jeroam]

I plan on filing an affidavit of improper service, intent to deceive by sending the motion to wrong address, and claiming no proof of evidence as they only show transactions with no signature.

[Clydesmom]

1 hour ago, Jeroam said:

claiming no proof of evidence as they only show transactions with no signature.

This is a waste of time.  The time to allege improper use of the card was within 6 months of the charges.  That is between you and the creditor.  Now that you are being sued it is too late to demand anything with a signature as far as each transaction goes.  If she opened the card without your permission and you never knew about it then a police report and FACTA identity theft report will make this end.  However, if she opened/used it while you were living together (and common law marriage still qualifies) then it is back to a civil matter between you and her.  You would have needed to make the fraud complaint when she did it.

The other issue with "evidence" is they are not required to send it with the summons or automatically.  You have to do discovery.

1 hour ago, Jeroam said:

intent to deceive by sending the motion to wrong address

They have bona-fide error as a defense.  Save this argument for the trial showing the law firm's attempt to circumvent court procedures.

Improper service only gets you served again and added time to answer.  It does not throw an active case out.

[Goody_Ouchless]

19 hours ago, Clydesmom said:

If she opened the card without your permission and you never knew about it then a police report and FACTA identity theft report will make this end.

This^^^ if at all possible. I don't think we've ever seen debt buyers contest an identity theft defense. Just realize that you can get in more trouble if it's not true.

[Jeroam]

I spoke with an ex-lawyer friend of mine and he thought i had no case, he thinks allow the summary to happen would be smarter as then I would not have a ruling to pay court fees as well as debt. 

he suggested that if i did respond it would be on the basis of Portfolio did not negotiate in good faith or something like that. The judge in a pre trial conference gave us a couple of weeks to negotiate. I called the attorney that Friday as I promised the court. The attorney said he would mail me a fraud form. He never did. The judge had scheduled another pre trial conference the day he asked us to negotiate. The day of the second pre trial conference is when i found out about the summary judgment had been filed. I called in for the pre trial conference and the court said a summary judgment had been filed and I should have received that from portfolio. I asked for a copy and they emailed it to me and it showed the wrong address. I think portfolio wants to avoid the costs of court for sure and I don't have much to hope for in my defense. 

would you suggest an affidavit of opposition due to Portfolio not negotiating in good faith and rather sending the court documents to the wrong address in order to deceive? I am not sure how to word the did not negotiate in good faith, but my friend said he would help later today, He is 96

thanks Clyde and Goody

perhaps i should just file for bankruptcy as i have no assets. 

[Bulldoger]

I just notice where you live.  My wife and I spent a weekend at the Enchantment resort back in 1994 when I was TDY at Ft. Huachuca.

We had a great time. 

 

 

 

[Jeroam]

It is amazingly beautiful here. My first time was in 1991 and I've been visiting every year since.