Author Topic: how useful is failure to serve properly in civil suit  (Read 310 times)

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nybird32

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how useful is failure to serve properly in civil suit
« on: September 16, 2017 06:10:09 AM »
Hello all, I apologize if this has been asked previously. I went through most of the threads and couldn't find an answer so here i am.

I am being sued by Barclays card through Forster & Garbus. I only discovered this when I was registering with a debt relief program and they told me that any accounts that are suing could not be included. I received a forwarded address envelope a couple of days later since i had moved a few months earlier. It was the summons. At that point I had 5 days to respond so I headed to the court to respond because everything I read said to never ignore it. I have now read up enough and realize they were suppose to attempt personal delivery, which obviously never happened yet they claim by filing it that they did. Is there a way to find out who they claim it was delivered to? I know the people at my old address and they would definitely have let my know if some thing like that was delivered and I never received anything at my place of employment. I now realize getting 3 to 5 calls a day till I blocked it from odd numbers might have been them but there was never any mailing previously and never anything informing me my debt had been sold to them. I also have read everywhere (and i mean everywhere) about how deceiving they can be. Could this be enough to have the case thrown out or dismissed?

Bubbles

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Re: how useful is failure to serve properly in civil suit
« Reply #1 on: September 16, 2017 07:10:51 PM »
How did you respond to the summons? ("... so I headed to the court to respond ...")

Basically:

1. You can file a motion to quash, or alternatively a motion to dismiss, an insufficiently served process. Plaintiff can cure the defect, of course.

2. If due to moving you are under the jurisdiction of a different court, then you can file a motion to dismiss for lack of personal jurisdiction. Plaintiff can re-file in the correct court.
« Last Edit: September 16, 2017 08:03:12 PM by Bubbles »

Clydesmom66

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Re: how useful is failure to serve properly in civil suit
« Reply #2 on: September 17, 2017 01:50:30 AM »
2. If due to moving you are under the jurisdiction of a different court, then you can file a motion to dismiss for lack of personal jurisdiction. Plaintiff can re-file in the correct court.

Not exactly.  If the suit was filed prior to the move but service took place after the move then the case will remain in the original court as it was filed in the correct jurisdiction.  The OP would have to defend in the court where this filing occurred if the process of service is not dismissed.  When the suit was filed with the court not the service of the Defendant will determine if the court is the correct jurisdiction or not it isn't automatic that the new court is the correct one.

I have now read up enough and realize they were suppose to attempt personal delivery, which obviously never happened yet they claim by filing it that they did. Is there a way to find out who they claim it was delivered to?

You would have to see all the information in the case file.  It might be on line but many small claims cases are not.  If it isn't online then you would have to go to the clerk's office and look at the case file or get copies of the attempt at service.  The problem is they only have to ATTEMPT to serve you at your old address.  If that fails then they can petition for alternate service i.e. by mail and it is sufficient.

What state are you in?
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

CleaningUp

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Re: how useful is failure to serve properly in civil suit
« Reply #3 on: September 17, 2017 03:13:45 AM »
OP needs to check his juridicton's rules on personal and alternative service.  Many state allow nail-and-mail service to last known address or personal service to last known address.

What the server has done will be stated in the case file.

As for them having to contact you prior to filing suit, unless your state has a legal provision of a right to cure, they can go straight to suit if they so choose.

Get to the courthouse and purchase a copy of the file.

nybird32

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Re: how useful is failure to serve properly in civil suit
« Reply #4 on: September 17, 2017 08:06:21 PM »
I'm in new york city. From what I can tell at my court date I can motion to dismiss the case due to bad service with the summons. Everything I've read about this lawfirm says they do this to get people to not show up for their date so the judge automatically grants them judgement. I responded that I didnt agree with the amount, but ny courts dont give many options when answering to summons. It's obvious I have been trying to sort all of my credit issue and resolve them, the only reason they exist is due to helping my family out and never being repayed. i've never even had a parking ticket. it's just extremely frustrating that just as I think i'm finally getting everything sorted this comes along to take me three steps back.

Clydesmom66

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Re: how useful is failure to serve properly in civil suit
« Reply #5 on: September 17, 2017 08:50:44 PM »
Quote

Unfortunately that is not a valid legal defense to not paying the debt.  It doesn't mean you shouldn't fight it but I would not bring that up in court as an explanation.  The court's attitude will be you should take care of your obligations first and family second. 



I would agree that bringing this up would not be helpful at the trial phase...When talking what payments you can make, it can make life a little easier.

If you are in NY, particularly if you are in NYC, the courts hear the sob stories ad nauseum.  Make a good defense based on legitimate legal grounds, and you might find the court looking on you more favorably.

There have been any number of times people have come here in financial distress because of family not paying back what has been loaned.  Unfortunately, you are the latest to find that out.  Just keep it in mind in the future.
« Last Edit: September 18, 2017 12:12:14 AM by CleaningUp »
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.