I posted below under "Lawsuit Help" concerning a Midland/FCNB debt for which I received a Notice of Continued Return form over the weekend that was changing the date of the court appearance from tomorrow to 10/2. Here's what happened today and I need advice. I found out by calling the court that the attroney filed a "Return of Service" claiming I was served on July 20 at a time when I was still at work. The affidavit also described my physical appearance which was way off. How can they LIE to the courts like this & get away with it??? It gets better...the Notice of Continued Return changing the court date from tomorrow to Oct. 2 was never filed with the court, so as far as they are concerned, the court date is tomorrow. I went over to the court today and filed a Motion to Quash on the Summons/Complaint. Should I show up at Court tomorrow? And, what about these deceptive practices with the Court -- aren't there penalties for that? Any advice on how to proceed is appreciated. I don't have time to read all the threads that may apply here. Thanks in advance for the help...Susanna
My guess is they'll just blame it on the process server and ask for a continuance. Just be careful -- they might have someone there at the courthouse ready to serve you for real. They could also be there with a Motion for Default or Summary Judgement in hopes that you don't show up.
If in doubt, my $.02 would be for you or your lawyer to show up if only to object to a possible summary judgement. If they do show up you should at least ask for a continuance on the grounds you were improperly served in order to have time examine the complaint and prepare your defense. I suppose another option would be to move for dismissal of the case based on fraudulent service but you might need a little more preparation for that. Regardless, not showing up would seem to be a bad idea.
Thanks for responding. I thought they'd have to rule on the motion to quash first. Could they consider a summary judgement when I haven't been served papers yet?
still looks like case management to have the judge extend the time they have to serve you. If you show up than you cant say you didn't know about the suite and they could serve you at that time.
Appylon, I asked today and the Court didn't know. I have the name of a BK attorney who will know, I presume.
I'm thinking since the atty changed the court date to Oct. 2 he may not show. They may have just forgotten to file the continuance paperwork...If that's the case, I may ask for a dismissal. What do u think?
Don't count on it Calif. allows bottom feeders to call in on all matters except giving direct evidence. If he doesn't go into court or call the court will take it off calender. Here is a letter I like to send out some times when people need time. It makes collectors and alike stop take notice waste time and there money could give you an extra 3+months. Enjoy I do...... (date) (bottom feeders name) (address) Account Number: To Whom It May Concern: On (date), I filed a voluntary petition under Chapter 7 of the U.S. Bankruptcy Code in the Bankruptcy Court for (your District and Division.) The case number is # CO (make one up). No attorney is representing me. Under 11 U.S.C. § 362(a), it is against the law for you to do any of the following: � take any action against me or my property to collect any debt � file or pursue any lawsuit against me � place a lien on my real or personal property � take any property to satisfy an already recorded lien � repossess any property in my possession � discontinue any service or benefit currently being provided to me, or � take any action to evict me from where I live. A violation of these prohibitions may be considered contempt of court and punished accordingly. Very truly yours, (your name) (address)
Did you actually file bankruptcy or are you just playing blindman's bluff using the bankruptcy code to do so?
I have an update... Went to Court this morning with my "Motion to Quash" for improper service and the clerk had me talk to the lawyer representing Midland Management. Long story, short...the attorney stipulated to my motion and said he'd look into whether or not identity theft was at work here. I told him this FCNB debt was not my account and that I needed to see my signature on an application. I also pointed out that FCNB filed BK in 2003. So, I'm not sure what will happen next... This lawyer filed a continuance to change the court date from today to Oct. 2, but never filed paperwork with the Court. So, the Court had it on their docket and I assume if I didn't show up they were ready to file for a default judgement with me thinking the Court date was Oct. 2. So, do I just sit and wait this out now?
Col. Sol I was unable to respond to your e-mail as you are blocked. My website has instructions for answering a time barred lawsuit. The Col. page of my website has the correct 3 year statute posted.
Thanks very much for the response. I'm hoping you are correct with the 3 years SOL...Bankrate has it at 6 years and a CO attorney my husband talked to is saying 6 years (attorney my husband talked to is a CA, and therefore cannot be trusted.) I'll check your website again.
I swear I don't have the slightest idea where WhyChat got the silly idea that the correct sol was 3 years and has that terribly wrong info on the WhyChat web site. The lawyers who told you what the sol is were obviously correct and Bankrate.com agrees with them and so does the statute of limitations and yet WhyChat has the "correct" statute of limitations on that forum? That's why I always say that if you want the correct information then stay away from such so called and self styled "EXPERTS" because they will give you false and misleading information most of the time.
If they had proper service the attorney wouldn't need to have the judge extend the time. Attorney now has the extra time to try and serve you or in Oct. will tell the judge she knew about the law suite and get a judgment that way. In some states service avoidance can turn into a default judgment Good luck.........
Just "knowing" about a lawsuit is not sufficient. The Rules of Civil Procedure in CO require that "proper service" be rendered. This is not service avoidance -- I was not served paperwork -- and the attorney recognizes that this was the case, based on the ridiculous physical description included in the affidavit. I will check with the Court prior to Oct. 2 to find out the disposition of the case, and at that time, if necessary, be prepared with an Answer to their claims, just in case... Susanna
The opposing counsel DID show up when they "thought" they had changed the date. Hmmmm.... coincidence? I think not. I bet he had a motion for summary judgement in his briefcase. Good thing you showed up. It's awfully generous that he'll look into the possibility of identity theft, but if you're on the receiving end of a complaint, I don't think you want to be sitting around and waiting for anything. I don't see how waiting will work in your favor. Answer the complaint, file a motion for discovery and request all the information they have regarding the case (don't just tell the attorney that you want to see a contract). Pointing out that FCNB filed bankruptcy is really not relevant to your case so, big deal. I'm not a lawyer and this isn't legal advice, but from here the best defense looks like a strong offense.
