Author Topic: Motion to Vacate for failure to Serve Summons  (Read 18345 times)

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Flyingifr

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Motion to Vacate for failure to Serve Summons
« on: January 09, 2009 08:37:18 PM »
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.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Debtors Exams are the perfect place for us Senior Citizens to show off our recently acquired Alzheimers.

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itsmeagain

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Re: Motion to Vacate for failure to Serve Summons
« Reply #1 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.

Rottweiler

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Re: Motion to Vacate for failure to Serve Summons
« Reply #2 on: January 09, 2009 10:24:08 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.

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 .
“This is a court of law, young man, not a court of justice."
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Flyingifr

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Re: Motion to Vacate for failure to Serve Summons
« Reply #3 on: January 10, 2009 02:49:25 AM »
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.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Debtors Exams are the perfect place for us Senior Citizens to show off our recently acquired Alzheimers.

Founder of the Credit Terrorist Training Camp (Debtorboards)

itsmeagain

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Re: Motion to Vacate for failure to Serve Summons
« Reply #4 on: January 10, 2009 06:07:58 AM »
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.

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.


Rottweiler

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Re: Motion to Vacate for failure to Serve Summons
« Reply #5 on: January 10, 2009 05:58:58 PM »
Sorry to cross-post but in the other thread you wrote:
 
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?

No, you misunderstand:  Flying first learned of this case when he got served the Notice of Default.  This was issued after the trial date; the Motion to Vacate would remain timely.

As for trying to prove what the envelope actually contained?  I am sure Flying date stamps everything he gets, and kept exactly what he got.  Do note that he has been able to retain an ATTORNEY, one who was eager to take the case.  He would not have been able to do that if he had not been able to demonstrate that the evidence in hand had a flying  :censored: of a chance of being acceptable in court.

Another way to look at this is:  "How can Hameroff & Lavinsky prove that the envelope contained exactly what they claimed it did?":

I suspect it won't be too easy for them to explain their way out of this one!  Unless they (Hameroff & Lavinsky) can prove to the court that their office procedures include a "quality control" process to try to prevent such an "error", it becomes a "he said, she said" situation.  One which should not make a difference as to the outcome of the hearing since:

1.)  H&L will have to produce the pleadings they "forgot" to put in the envelope...and therefore lose the motion; or,

2.)  Try to explain where the pleadings went if they indeed are AWOL.  :) 

In either situation, they will almost certainly lose the motion and possibly face perjury charges and/or sanctions and/or the possibility of the AZ Bar telling them a thing or three... :P
“This is a court of law, young man, not a court of justice."
~ Olver Wendell Holmes

Flyingifr

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Re: Motion to Vacate for failure to Serve Summons
« Reply #6 on: January 10, 2009 10:22:36 PM »
Even if they can 'show" the summons was in the envelope or I can't "show" it wasn't, Courts are not rubber stamps on service issues. If it pops up right away they will tend to agree with the Defendant. They will usually allow the Plaintiff to properly serve and then let the matter proceed - especially when the defendant says they not only have defenses but COUNTERCLAIMS.

If the issue is raised years later the courts may not be so flexible.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Debtors Exams are the perfect place for us Senior Citizens to show off our recently acquired Alzheimers.

Founder of the Credit Terrorist Training Camp (Debtorboards)

wesaidso

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Re: Motion to Vacate for failure to Serve Summons
« Reply #7 on: January 30, 2010 12:31:45 AM »
"If the issue is raised years later the courts may not be so flexible."

What if you didn't know about it till 5 years later?
Is there anything that can be done...
"The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man."

CleaningUp

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Re: Motion to Vacate for failure to Serve Summons
« Reply #8 on: January 30, 2010 01:47:40 AM »
The same thing as if you found out about it earlier.

There may be more difficulty in convincing the court that you are right, but the principle and the arguments are the same.


potrzebie

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Re: Motion to Vacate for failure to Serve Summons
« Reply #9 on: January 30, 2010 02:09:47 AM »
Even if they can 'show" the summons was in the envelope or I can't "show" it wasn't, Courts are not rubber stamps on service issues. If it pops up right away they will tend to agree with the Defendant. They will usually allow the Plaintiff to properly serve and then let the matter proceed - especially when the defendant says they not only have defenses but COUNTERCLAIMS.

This is what I'm confused about -- I'm about to file a Motion to Vacate a Judgment (because we never got served at all for the original court date), but I get conflicting advice about whether it would be beneficial to our case to include questions we have about the original debt. Some tell me not to bother because the judgment's been awarded already... what say you?




Fighting Irish

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Re: Motion to Vacate for failure to Serve Summons
« Reply #10 on: March 23, 2012 02:56:36 PM »
It depends, like everything else.

But, in a motion to vacate for lack of service, keep it to that. You don't have to throw in the kitchen sink, just the plain and simple fact that a default judgment, when you were not served, is invalid.

If they decide to go ahead and sue you, all over again, that's where the validity of the entire claim comes into play.

Keep in mind, too, that if you get the judgment vacated, then the SoL for the original debt is reset as if it were never tolled.

It's possible, but not guaranteed, that a new suit would then be out of SoL.

Dang it, Jim! I'm a nurse, not an attorney!

(The rest of you, keep that in mind, too.)

wealth_Destructor

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Re: Motion to Vacate for failure to Serve Summons
« Reply #11 on: April 08, 2012 01:20:39 AM »
Can the above motion be used for any state by just replacing the applicable statutes and heading?

Seadragon

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Re: Motion to Vacate for failure to Serve Summons
« Reply #12 on: January 13, 2013 05:29:27 AM »
I think so. the principles of a Motion to Vacate/Motion to Quash are pretty straight forward. To Quash for service of process issues you need to make those fraud allegations and get some evidence they have done it in the past. I would be remiss if I didn't tell you that getting a court to vacate for a pro per is tough. So to vacate you might want to get a limited representation attorney to do the vacating and then you take over for the answer. and make sure you send a proposed answer to the complaint with the motion to quash/vacate.

phxcoyote

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Re: Motion to Vacate for failure to Serve Summons
« Reply #13 on: April 19, 2013 02:18:03 AM »
I have to file a motion to vacate based on lack of service.  The address where they mailed the summons was sold 2 years prior to the mailing and I was living out of the country and can prove it.  The original breach was December 2005 an if I can get this vacated based on service is the SOL tolled? if not this issue will be time barred or am I too optimistic?  IMO they knew or should have known the prior address was sold.  20 seconds on the county website would show that.  They attempted to bury me in attorney fees but nobody thought to even see if I lived at the address?  That seems fraudulent or at best shady...

I'm sure I am missing a whole bunch of stuff - Any ideas??? Thank you!!!
Not sure I've ever had an original idea so thank you to everybody who has helped me!

 

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