I woke up this morning to a summons duct taped to my door (damn it, it took the paint right off) The Order Regarding Alternate Service states my name, as does the page titled "Summons and Complaint" This page lists my name, address and the attorneys name for the credit card company. The next page is "Motion for Second Summons and Order" this page states that "the defendant is evading service, processor requests more time". Let me start by saying this is simply not true. A man came to my door once regarding this, and asked my husband if I was home. I was in NC for 2 weeks and he instructed him of that, when my husband offered to take the information he had, he told him that it had to be delivered to me personally. My husband asked for a business card so I could contact him when I returned, and he stated there was no need, he would be back. Now today, on the door were the papers listed above. However, the information about the summons is not mine. It lists a different courthouse than my local (same attorney suing us), the plaintiffs pre-trial statement and information about someone Else's debt with legal issues, relief sought, pleadings, discovery, motions, exhibits and witnesses...however none of this is mine. It looks as if they messed up the paperwork all together, because it says that it was served to this person via mail... I am trying to research what they are even trying to collect. I think that it *might* be for a credit card that had a 300.00 limit. When I received it I immediately canceled when seeing the fees associated with it. However, it has been 5 years now (still in the SOL for my state) and it is going to be difficult at best to find proof of that. I can't afford a lawyer, and I certainly can't afford to pay what they are seeking, if what the person at the courthouse told me was correct. My question is how do I answer a summon that has none of my information on it? I can not even be sure what they are suing me for, if it was before my bk or anything...before I get the right information.. I do not want to call the attorney listed as the plaintiff, because I think he will just correct the issues and give me less time to answer?
How did you cancel the credit card?Its kind of hard to enter a plea when its not your information.When was you bk you might contact your attorney and run it by him,if you didn't know about it you very well couldn't have added it.
After some investigating, it was the card I thought it was. I guess it had a 400.00 limit, of which 359.00 were fees. We had gotten it right after our BK, and decided against it once we really realized we were given a card with such high costs. So, it was not included in the BK...but we never purchased a single item with the card, nor signed anything. The problem is I do not have proof of cancelling the card. I still question how I go about answering this summons...it does not have my information on it at all, other than the first pages which do not even describe my case.
If the card had no debits.You need to ask for a statement for charges made on that card.If you didn't buy anything no signed invoices,no contract.
Go to the courthouse and see if there is a case filed against you. Get a copy of everything. It might be that they attached the wrong information but filed the correct information at the courthouse. Contact the local courthouse and also the one where it says you're being sued.
I can go to the courthouse, although it is a 45 minute drive...can't I just answer the summon stating that the attached information did not belong to me?
In what way doesn't it belong to you? It says that it is for someone with a different name? If it refers to someone with a different name, how do you know that the person taped it on the door for you?
Well, I hate to be the bearer of bad news but if it has your correct name and address it is your summons and complaint and you must respond within the time allotted on the summons. For the purposes of establishing the jurisdiction it makes no difference what they are claiming, you have been served and you will either respond to that summons and complaint or they will get a default judgment. Simple as that. To make matters worse, you are almost certainly in small claims court meaning that you probably can't use discovery to get at the truth of their allegations. Whether or not you can use discovery in your small claims court is a matter you will need to determine by reading your state rules of civil procedure. Lack of right to use discovery means that you can't demand admissions, production of documents or use interrogatories to force them to tell you or the court anything at all. So you are basically stuck with whatever they want to claim, good, bad or ugly. The only thing you can hope to do is get answers to your questions though the witness chair and you might not even be able to do that if the judge won't allow it. Small claims courts do not operate the way Judge Judy operates hers on TV. The only way you might hope to win against their outrageous charges and fees is to file a lawsuit against them and drag them into a higher court and the case along with them. So how can that be done? There are many ways. One that comes to mind is your statement below. If that different courthouse is in another county then your first line of offense is to file a motion to dismiss for lack of geographical jurisdiction followed by a federal lawsuit against them for having filed in some other county than your own. It is unlikely that the court will dismiss the case for that reason. Sometimes they do but what usually happens is that they simply move it into your county so if you want to file a federal case then you need to do it at the same time you file the motion to dismiss with the local court or by the time the court rules it will have become a moot issue and the federal court would most likely dismiss your case because the local court already took care of the problem. Discovery? As I said earlier it seems to me that you are probably in small claims court and if you are in small claims court then discovery most likely isn't allowed. If that is all true then you should ignore any discovery requests such as demand for admissions, interrogatories or demand for production of documents. I've seen lawyers demand discovery even when it isn't allowed by court rules. The discovery demands can't be filed with the court so they count on the fact that the defendant is usually too ignorant to know that and too scared to do anything but comply. So if you have encountered some smart alec lawyer that thinks he can get away with that its time to teach him a thing or two. If discovery isn't allowed in your type of court and the lawyer violates by sending discovery just sit back and let him also get dumb enough to file a motion to deem admitted or motion to compel or subpoena duces tecum. I've never seen one get that stupid in small claims court yet but I've seen them demand discovery hoping the defendant will respond with all the answers the lawyer wants answered. So check your case type to see what court you are in and if in small claims then check your rules of civil procedure to see if discovery is allowed and go from there. Then check to see how many days you have to respond if discovery is allowed and how many days they have to respond if you demand discovery. Some states have the discovery rules set up so that the defendant has 45 days to answer while the plaintiff only has 30 days to respond to defendant's demands for discovery. If that is at least close to what your state's rules say then you could use the time differential to get the drop on them by filing your response immediately and demanding admissions at the same time when you send your response to the plaintiff. In any case, you will want to send demand for validation as well. So now your responses begin to take shape. You will have to prepare your response, certificate of mailing and demand for admissions, notice of appearance pro se and if discovery is allowed by court rules then your demand for admissions to the plaintiff as well as your demand for validation. If discovery is allowed you will also want to prepare and file your comprehensive discovery plan and get that approved by the judge before mailing to the plaintiff's attorney. Also, from what you are saying below it appears that you may have to prepare and file some objections as well. That's likely to be a pretty thick envelope you would be sending to the plaintiff's attorney. Learning how to do all of that isn't easy so I'm in the process of setting up a virtual server and a virtual network of computers under the virtual server to help teach people how to do all of that. For those who don't know what a virtual server or computer is I'll try to explain. Virtual computers are something like imaginary computers. They are computers that don't actually exist in a physical sense. Each virtual machine has it's own IP address just as real computers do. Virtual servers can not only have their own IP address just like their real counterparts do but they can also have their own domain names just like real servers do. They can do anything that the real machines do. Each one has it's own operating system. Right now I'm just setting up the virtual workstation. Each virtual workstation has it's own operating system and I'm setting mine up with Windows 7 which is a Vista 2 operating system. It is as different from Vista as XP is from Windows 3.0. A quantum leap forward in operating systems. Once the first one is set up others can be quickly cloned from the first so anyone could have hundreds of virtual computers or servers set up very quickly. The advantage being that each operator can be assigned his own machine. So each "student" would have his own virtual computer that only s/he can access or even know of it's existence. Some universities are experimenting with this system now so each student has his/her own computer to work from and use to do their research and lesson plans. The instructor would have access to all of the virtual machines belonging to each of his students and the instructor plus all of his students would have their own class network. Really cool technology. That's what I am setting up right now. Totally secure, totally private.
Not much use arguing about that. When you respond you will basically be admitting that you were served no matter how it happened. I wouldn't count on that if I were you. The SOL can depend on various factors. It might be what you think it is and it might be something else. In order to determine what the statute of limitations might be I would have to know what state you live in and what credit card you are talking about. SOL might actually be as little as 3 years or much greater. SOL can be a tricky argument and must be researched in each individual situation and state to figure out how to approach that situation. You might have a SOL defense after all. How so? SOL begins 30 days after you made your last payment to the creditor. So the starting point is to put together the proof of when you made your last payment to the creditor. Nobody cares what you can or cannot afford. If you fail to proceed correctly you will soon enough find your wages garnished, maybe your bank accounts seized, maybe your vehicle(s) seized and sold to pay the debt, maybe they will even send a sheriff out to your house to see what can be seized and sold to pay the judgment. What they can or cannot do to you depends on your state law, federal law and what you yourself can do to protect your assets. Best you start by draining any and all bank accounts and keep them drained. Then demand that you get paid by paper check and not by EFT so no new money gets into your bank accounts. If it has your name, address and other personal information correct and it says how much they are suing you for then it does have your information on it. Your task is not to dispute that but to prove that whatever information they have in the complaint is false and misleading and then file a federal lawsuit against them. That is the only way to win. So now you bring up yet another problem. Was it included in BK or not? He might correct the issues but how much time you have to answer is not his to determine. That is for the rules of civil procedure to determine. You have a real problem to be sure. A whole slew of them in fact. We can give you some answers here but in the end it is going to take much more help than we can give you here. I've suggested some of what to do but how to do it all is an entirely different matter. Learning how to do it is going to be the fun part.
