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Motion to Vacate for failure to Serve Summons

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Flyingifr:

--- Quote ---STATE OF ARIZONA      )
               ) ss.
COUNTY OF PIMA         )

The undersigned defendant in the above titled action, hereby states:

1.   That the Plaintiff in this matter has committed Fraud on the Court by affirming that service of a summons has been effected upon Defendant;

2.   That Defendants have meritorious defenses and Counterclaims;

3.   That had Defendants been served with a summons, an Answer along with defenses would have been properly and timely served;

4.   That in swearing to the attached Application and Affidavit for Default and Notice of Default under oath Affiant has committed Perjury and Fraud upon the Court.

5.   That Affiant deliberately intended to commit said Perjury by deliberately not serving or causing to be served the Defendants in this matter, thus intending to deprive them of their rights to confront their accuser.

6.   That such fraud was committed in full knowledge, or that Affiant should have known, that Plaintiff’s claim is subject to defenses and is time-barred under A.R.S. 47-2725.

7.   That such fraud was committed with the intention of depriving Defendants of valuable property through use and abuse of Judicial Process in violation of law.

8.   That in not even alleging service to have been effected in the Application and Affidavit for Default and Notice of Default Plaintiff is affirming that service of Defendant has not been effected.

NOW THEREFORE, Defendant Flyingifr requests the Court to Deny the Application and Affidavit for Default and Notice of Default, vacate the Default Judgment granted on January 5, 2009,  and to accept the attached Defendant’s Answer and Counterclaims as a proper and timely Pleading in this matter, and to Sanction the Plaintiff and Plaintiff’s attorney as the Court may deem proper.
--- End quote ---

itsmeagain:
OK, I understand the counterclaims but according to your motion, they actually succeeded in getting a default.  How did that happen?  I know you weren't served but didn't you show up anyway?  This is so confusing.

Rottweiler:

--- Quote from: itsmeagain on January 09, 2009   09:15:31 PM ---OK, I understand the counterclaims but according to your motion, they actually succeeded in getting a default.  How did that happen?  I know you weren't served but didn't you show up anyway?  This is so confusing.

--- End quote ---

This is the case where Flying was not served and NEVER showed up because he wasn't, and for a really dumb reason (on Hameroff & Lavinsky's part):   Presumably the envelope that contained only a sheet of paper with his address on it was supposed to contain the pleading(s), but apparently it did not as he states in this thread...

http://www.debtorboards.com/index.php/topic,7497.msg53585.html#msg53585 .

Flyingifr:
Rotty has it right - I never recieved a summons - only an envelope with a sheet of paper with my name and address on it. The summons, I presume, is in the attorney's shredder. How else to get a Default Judgment - don't serve the summons and swear you did.

itsmeagain:
Sorry to cross-post but in the other thread you wrote:
 

--- Quote ---    
Re: Hameroff & Lavinsky - you just GOTTA love 'em
« Reply #16 on: January 03, 2009 06:52:51 AM »
Now that i have filed my Motion on Opposition to Default Judgment I can finish with my Answers and Counterclaims and start on my Motion to move the case to Superior Court (from Small Claims) and Discovery demands.
--- End quote ---

http://www.debtorboards.com/index.php/topic,7497.msg53585.html#msg53585

So, in spite of your Motion to Oppose a Default Judgment, timely filed, they apparently succeeded in getting the default on Jan. 5.   So now you must prove that the envelope contained no summons or complaint?  Is the USPS an unacceptable method of service in AZ?  If so acceptable, how will you prove what the envelope contained or didn't contain?  Won't they just lie and swear the envelope contained the proper documents?

I really wish you well on this one but it seems that you are on a very slippery slope here.  This is very interesting and I (and countless others), are anxiously awaiting the outcome.  Sure hope there is no NDA so you can share the details.

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