Suing Your Creditors > Sample Pleadings

Motion to Vacate for failure to Serve Summons

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Rottweiler:

--- Quote from: itsmeagain on January 10, 2009   06:07:58 AM ---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?
--- End quote ---

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

Flyingifr:
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.

wesaidso:
"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...

CleaningUp:
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:

--- Quote from: Flyingifr 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.
--- End quote ---

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?



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