Date served not written on served civil summons, does this help my case?

Discussion in 'Credit Talk' started by Toetag, Jun 5, 2012.

  1. Toetag

    Toetag New Member

    I was served a civil summons by capital one bank a couple weeks ago. It was for a debt on a credit card I have not been able to pay on for a little over a year as I was layer off and am as yet to find employment. I do owe the debt and have every intention of paying it. My question are as follows, any help or advice would be greatly appreciated.

    1. I was served two copies of the paper that lists the plaintiff VS. Defendant heading and info along with a paragraph from my county clerk, " you are hereby notified that a legal action has been filed ..." At the bottom of both pages under the heading "Proof of Service," there is nothing written in the served by or served to, or date field on either sheet. Does this work in my favor at all, even to call the date I was served into question?

    2. The card had a credit limit of $500.00 however the bill is nearly twice that with no itemized charges or explanation of charges aside from a charge for $32.19 for interest. SHould i address this in my response?

    3. What sort of assets can they garnish? 5 year old laptop, digital camera, musical instruments, are these things they can seize?
  2. deb1031

    deb1031 Member

    Hi a former constable, consider the summons/complaint served. He will attest to that and will win every time.

    As far as Cap One is concerned, my husband had two accounts...they went to collections and the Law Firm of Howard Lee Schiff took over. They suck. All they do is collect money under the guise of an attorney...using the court system to harrass.

    We went to court....unfortunately I did not know enought to ask for validation. Mediated in the hall...agreed on payments and the way they tack on the will never be paid at this rate....unless I hit the number. never attempted to garnish anything from us thus far. We did skip a few payments which caused them to begin their unceasing phone calls but when we continued with the payments it stopped.

    Answer the summons by requesting validation of debt. Then the ball is in their court.
    I hope I helped.
  3. Desdemona

    Desdemona Well-Known Member

    Hi Toetag

    Welcome – hopefully we can help; I do have a question:

    What state do you live in?

    Process service requirements vary from state to state so unless you research your states requirements and there was a procedural error – concerned yourself served.

    The proof of service section is filled out by the process server, in my state the server has 91 days from date of filing to serve the summons – if they do not the summons is void and the creditor has to start all over again. If your state has a time limit and you were served outside of that date, then you might have a case. BUT – keep in mind processers are NOT paid till they present to the courts and lawyers proof of service so if they served you they will most likely turn in that paperwork ASAP so they can get paid.

    So that proof of service date is for courts and the creditor, and your concern should be on the total number of days you have to reply to the summons.

    As for the total amount both the original creditor (OC=Cap1) as well as the both JDB (junk debt buyers) and/or law firm who purchased the debt can and will charge interest. When you respond to the summons you could ask for a complete financial breakdown as where they came up the total amount they are asking for. I would require this breakdown from every JDB who “owned” the debt – did they charge the correct interest rate that is legal in your state.

    Once again you will need to research your states default interest rates for written contracts – both OC as well as JDB. While you’re at it check your SOL dates – is the debt even collectable?

    Without know what state you are in, we don’t know what is exempt from garnishment – or if you will be required to disclose assets to the court via debtors disclosure after judgment. Most garnishments hit bank accounts, wages and/or property levies (your home or land) first. Most personal property that is seized first is a vehicle if you own it and it has some form of equity. So 5 year laptop has little or no equity so it MIGHT not worth their time but I can’t answer for the creditor I am just someone who is trying to help.

    Whatever you do don’t ignore the summons – getting a default puts ALL the power to the creditor by answering you have a fighting chance. Keep in mind no one is judgment proof.

    Good luck with everything -- keep us updated we might be able to help.

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