Author Topic: Time in pocket service state from serving to filing?  (Read 2506 times)

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2fast

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Time in pocket service state from serving to filing?
« on: May 06, 2009 05:30:17 PM »
This is a wierd case but I thought you guys would know.  In MN my wife was served with a summons/complaint after several attempts at validation by a CA.  THe attorney hasn't filed the complaint yet and it's been over 60 days. 
We of course answered it and he answered our countersuit but nothing's been done to make the courts aware as of yet.
I'd like to get this moving along, but would rather force a settlement and have the 2 accounts removed from her reports.  We have a very strong counter claim including charging interest on the debt and such and a non PP inquiry.
The root of my question is since it's not specifically laid out in our statute, how long can they sit on the summons without filing it?  Forever?  Can I just serve them with a summons/complaint for FDCPA and FCRA violations if I've already listed them in my counter claims?
My thought is to send a letter outlining our hopes for a suitable settlement with our intent to sue (or press the case) if we can't come to an agreement. 
I'm thinking they were hoping for a default judgement and are hoping to just let it die now, but the CA is dinging here credit so it's still doing damage.
Thought?

CleaningUp

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Re: Time in pocket service state from serving to filing?
« Reply #1 on: May 06, 2009 05:36:18 PM »
Basic concept in the American legal system:  If it isn't filed with the court, then it isn't a formal complaint.

Check with the Court to see what, if anything is filed.

If nothing is filed, you have a GREAT FDCPA case that you can file against them.


2fast

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Re: Time in pocket service state from serving to filing?
« Reply #2 on: May 06, 2009 06:59:09 PM »
Basic concept in the American legal system:  If it isn't filed with the court, then it isn't a formal complaint.

Check with the Court to see what, if anything is filed.

If nothing is filed, you have a GREAT FDCPA case that you can file against them.


In MN it's a practice called pocket service.  It's completely legal for them to serve her before filing, however it doesn't say how long before.
My thinking is that it's getting into the area where they are in trouble for threatening legal action without the intent to carry it out.  It'd be hard to prove that they don't intend to though since there's no guideline for how long they have to do so.

CleaningUp

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Re: Time in pocket service state from serving to filing?
« Reply #3 on: May 06, 2009 08:26:20 PM »

It would seem that this serves the purpose of the Demand Notice required in many other states.

The question is whether or not the plaintiff must provide fair notice once the the case is actually filed and whether or not the plaintiff can go immediately for a default judgment.

Do you have a reference for the rule that governs "pocket service"?




I would agree with the potential exposure for the plaintiff regarding intent.

Plaintiff's failure to file may also fall afoul of the FDCPA in providing documents that appear to be formal court proceedings or legal documents.

Unfair and deceptive are also two terms that come to mind, and those tie to the UCC implementation as well.






Mischievous Smurfy

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Re: Time in pocket service state from serving to filing?
« Reply #4 on: May 10, 2009 01:25:10 AM »
ummm there is one state where nothing ever has to be filed in the court .... which is absurd ... but neverless the law in that state...

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why are we requesting validation instead of disputing???  Why Why Why

Flyingifr

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Re: Time in pocket service state from serving to filing?
« Reply #5 on: May 10, 2009 09:40:21 PM »
Have you checked with the MN Court Rules on this? Seems to me they should have a finite time to move this along and into trial.

And what stops YOUR WIFE from filing it with the Court herself? After all, isn't your wife a party in interest?
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

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