What to do?

Let me expand.

If the process server has not indicated that the summons has been served, then the suit has yet to be joined. If he has recorded that the defendant is deceased, then there is a statement in the file that the suit cannot be joined, because there is no defendant.

Now it is up to the plaintiff to act. Withdraw the complaint? Allow the suit to be dismissed for lack of prosecution? Correct the name error and refile the suit? Search for the estate and re-serve?

It's their problem to solve, no need to volunteer to do their work for them. If they see that the cost of just getting to court is more than they can collect, they may just drop the whole matter.

But let them make that choice; no need to interfere.

 

It will be here as long as the board is here.

 

Looks like you got some good answers while I was away! You can check with your local court to see the status of the summons. Just ask about it referring to your FIL's name, and that it came to your address. Yes, you have a right to follow up. Ask what they do in a case like this, they will tell you.

In the meantime you need to do some strategizing, remember that the "interest rate" clock is still ticking on this one. Going back to "negotiating", think this through, work through your finances, and your "first offer" should be what you can pay "today" (today=day of call) to "close this matter". Use those words of "close this today", there is a strong motivation in these words, all people love closing items like this. Again, your first offer is what you can pay at this moment. Do NOT think about whether they would like it or not, do not even think about whether they'd accept or not, that is their decision, and you do not have enough information to judge their reaction.

Big negotiating suggestion here: Make the "offer", then do NOT say anything until they speak. There is an old addage in negotiating, "the first one to speak loses". Even if seconds hang like hours, wait it out.

If they say "No", then ask what is the minimum you'd accept? Do not mention any time periods yet. Go back and forth until you reach an agreement you both will live with.

But, do the homework on this suit first, it may already be in the circular file!

 

You might be able to get it over the phone, depends on how cooperative the Court's clerks might be.

I would think that it is best for you to do it in person, that way you know, first hand, what it says. Make a copy of the file for your records.

You will need to keep in mind the time constraint on filing an answer to the complaint if the suit is joined, so I wouldn't delay the investigation.

When did the process server give you those papers, BTW, and how many days do you have to file an answer?

I would hold off any conversation about a settlement until you know what is actually on file at the court if you have elected to go the settlement route. And remember, "no" is just the starting point of the next round of negotiation if you choose to see it that way.

 

Thanks, I don't think I made that point clearly enough. I stress PREPARING for negotiating, but not negotiating until you know the suit will be against you.

 

So you've got some time to file an answer if one is required. Not much, but it's not a crisis situation. The file will tell if an answer might be required.

Remember, filing an answer in no way precludes you from negotiating a settlement. It is only a piece of relatively worthless paper, a place marker if you will. (Filing affirmative defenses and/or counterclaims with the answer is much more important, but that's for a later discussion.)

Settlements can be made up to the point where a judge issues the judgment, so there is ample time to pursue that avenue if you wish.

The CA may choose to join the suit with the Estate, but they have to find the Probate record to do so. And if they file, then a comparison of the SSN with that of the deceased will reveal that they have made defective service again. More headaches for them.

Until they join the suit with YOU, I suggest opting for letting them flounder. They are doing a good job of screwing themselves up now, why not just sit back and watch them flail? It could be to your benefit and currently does you little harm.

 

You're welcome. Good luck.

 

sf..another option to consider

sf,

I get the feeling that you're not comfortable with all the legal proceedings involved with this suit, and that you're uncomfortable with the idea of "not paying" a debt that you feel you should.

So, another option may be to "leverage" this improper suit; you could contact the attorney, state that you do not understand what this suit is about for your FIL, but would like to clear this, as he was your father/FIL.

I would suggest a bit of the "sob story", that your FIL has long passed, nothing in estate left, and that you and your husband are not in a position to be able to pay the entire amount. Ask if there is a figure they could accept to "clear your FIL's name" (so to speak). Have your "figures" calculated ahead of time. Throw out a figure of $300-$400 dollars as "all you can afford". They may jump on this, knowing the suit may be uncollectable. The lure of something, rather than nothing may be enough to entice them. Again, it would have to be a figure you could pay "that day", and live with. IF they accept, get something in writing clearing this issue.

Then, obviously desroy the CC, if you haven't already. Just an idea that may be more acceptable to you.

 

I would check back on Friday the 14th directly with the courthouse to see what has been done. Don't wait until after the time to answer has expired.

It doesn't matter about the Probate Court. As soon as they see when it was filed, they will realize they sued the wrong person.

 

So the bottom line is that there is no suit against you. That's good.

Unless there is a burning desire to put your head in the noose, I would think that sitting tight for a month or two would be useful. See what the attorney is going to do. It is, after all, his move.

I would use the time to get a hard copy of the credit reports and see how things are reporting. If nothing is there, then there is nothing that you HAVE to do unless you elect to.

With the deadline of filing an answer no longer over your head, you have time to explore all of the options more fully.

Bizwiz's suggestion is a viable option. But you would need to take care not to make any patently false statements.

 

As a suggestion; write all this down for your notes (if you haven't already). Include dates, times, name of clerk, constable, etc.

As stated, there is nothing "legally" required for you to do, but prudence dictates folowing up on the suit status and actions. It is a good suggestion to check your credit reports. Look carefully at the account description, there's a chance you (somehow) were listed as an "Authorized User". If this is the case, you're completely clear (of fraud and liability).

Again, my "other option" suggestion was just that, an option to help perhaps the "ethical" side you may feel. But be careful, do not offer any information re: using the account or knowledge of it. Just stick to the story of "notice came, don't understand, want to clear father's issues, and of course, will you accept $XXX.00, as that is all we can come up with.

So, you have some time to consider your options and feelings. Good Luck..

 

Wise to understand your own capabilities.

I don't think you are doing yourself any harm at this point, by waiting things out. If things change, then the options can be addressed.

Let us know how things go.

 

Don't be so sure. They are chasing their tails already. Who knows where it may lead them.

Happy Holidays.