received copy of summons need advice

Discussion in 'Credit Talk' started by peeper, Jan 9, 2008.

  1. peeper

    peeper New Member

    Today jan9th 2008 i got in the mail a letter from forster&garbus attorney for plaintiff capital one of glenn allen va a copy of a summons that they say was served to me on oct 1st 2007 which was never served to me.The cover letter says The law requires that we serve a duplicate of the summons previously served upon you as additional notice.You cav avoid the entry of a judgment by contacting our office and making arrangements to pay this account,or you can follow the instructions on the summons if you dispute any part of the claim.Of course the cover letter has no signature.

    The copy of the summons states.You are hereby summoned to answer the complaint in this action and to serve a copy of your answer on the plaintiff's attorney within 20 days after the service of this summons,exclusive of the day of service(or within 30 days after the service is complete if this summons is not personally delivered to you within the state of new york).

    Failure to answer,judgment will be taken against you for the relief demanded in the complaint plus costs of this action.Dated this 1 day of oct. 2007.

    I received this regular mail with a postmark preprinted of july 7th 2007 on jan9th 2008 and the date on the inside cover letter is jan 4th 2008.This seems fishy to me.Forster &Garbus are the scumbags of ca's Should i ignore this?
  2. peeper

    peeper New Member

    post continued

    The copy of the summons also states.

    If this summons is served by its delivery to you personally within the county of erie (which it was not) you must appear and answer within 20 days after such service or If this summons is served outside the county of erie or by publication,or by any means other than personal delivery to you within the county of erie you are allowed 30 days after service is complete within which to appear and answer.

    My question is how can they send you a copy of a summons you never got 3 months after the fact.Should i ignore what i consider a Ca's sneaky attempt to collect on a debt?
  3. Oracle

    Oracle Banned

    Do not ignore it. But make darn sure you keep that envelope along with their correspondence. You could have fun with that later.

    You need to know what is going on with the service before you determine how you need to respond. You have either 20 days or 30 days to respond. From what you've posted, it sounds like 30. So you have some, not much, time to figure out what to do.

    Some other important questions: Did you previously live in Erie County? Do you still live in NY State? What is the nature of this alleged debt? Is it really yours? If it is, when did it first go into default? Is it for a significant figure, say over $1K?

    You'll need to look into the Court's rules for service. That will tell you what is and isn't permitted and how your case fits within the scheme of things.

    See if you can get a copy of what is on file with the court. It will give you the case's history to date.

    Your position, right now, would be that this would be your first knowledge of the service, which you have stated that it is.

    When you get the picture in front of you, you can begin to see what choices you have in how to respond.
  4. peeper

    peeper New Member

    Here is what i dont get.If there was a summons against me on oct 1 2007 which i never responded to because for whatever reason i never received it the window to respond has long since passed.So a default judgment should of already been issued.So why are they sending me a copy of the summons now?How come they knew where to send the copy but not the original?I still live in erie county in new york.The debt is mine from capital one for around 5,000.This debt is in default around a year or so.The summons does not give a court date,It gives a file number.There is no legal stamp from the court on the summons.It also says the basis of the venue is a defendant resides in the county of erie the transaction took place in the county of erie.The plaintiff resides in glen ellen va. Can they sue me in new york if the collection attorney lives in new york?
  5. Oracle

    Oracle Banned

    The simple answer might be that the record shows the summons has yet to be served, and therefore, the case not yet joined. This would explain the subsequent efforts for service and the apparent lack of a default judgment.

    You really need to know what is in the case file in order to determine how best to proceed. Your window for response is likely 20 days (in-County service), so you need to do some homework fairly quickly.

    If the CA's attorney is admitted to the bar in NY, he can sue, no matter where he lives or where the CA is from. No relief there. You may, however, want to check to see if the CA is licensed to collect in NY. Many, but not all, are licensed. Best to check.
  6. peeper

    peeper New Member

    Oracle why does the summons state i must send an answer to the plaintiffs attorney and not the court.If the summons(complaint) was filed on oct 1st 2007 why did the plaintiffs attorney send me a copy of the summons 3 months later in the mail and not even send it cmrrr?I am 100% disabled vietnam veteran with no garnishable wages,no assets and very little equity in my house.Should i send the plaintiffs attorney this information as an answer to the complaint filed?It is my debt so i can't really defend my actions and forster & garbus are well know scumbag collection attorneys in new york.They run a 2 man operation out of an office in farmingdale ny.Because of my mental disabilities i could never appear in court so i guess they will get their default judgment.
  7. Oracle

    Oracle Banned

    Answers are directed to the plaintiff or his attorney as required by the rules of the Court. Copies are filed with the court.

    As for the summons, the date it was filed for service is on that, the date it was filed for service.

    The key date is when the summons is actually served. Once the service has been made, the suit is joined. A joined suit is an actual case, an unjoined suit (i.e., not yet served) is merely a pending action awaiting completion of the procedural detail of service.

    Hence it is important to review the RCPs of your district as they relate to service and to inspect the case file to see where the case actually stands viz service.

    Your being on total disability and being essentially judgment-proof puts you in a position to withstand a default judgment. But taking one needs to be considered carefully.

    If you feel that you cannot represent yourself adequately in court, then you probably should seek legal assistance.

    But you need to see what the situation is on the suit first. From what you have said, it appears that 20 days is the window for you to respond.
  8. peeper

    peeper New Member

    Oracle i just noticed this summons has a different account number than the capital one account that was defaulted on.I only had one capital one account and that was sold to Gc services who sent me a letter asking for payment they then sold it to United recovery systems who sent me a letter asking for payment.I was then sent a 3rd letter from James a west pc demanding payment.All 3 of these letters had the same account number and it is the right account number.Forster & garbus names capital one as the plaintiff in this summons but that can't be because that account could not of reverted back to capital one.I don't think capital one would buy back a defaulted account that they sold.The account number on the summons does not even come close to the capital one account number that i received 3 letters from 3 different sources demanding payment.Should i send forster & garbus a letter stating this fact?How do i answer this summons if there is no court address listed on the summons?
  9. Oracle

    Oracle Banned

    First, it is my understanding that Crap1 holds, not sells, their paper, so true ownership of the debt is something that you need to determine.

    The account number difference is significant. If it can't be tied conclusively to the account that you held with Crap1, then it can't be yours for the purposes of this suit. Not mine would be your route in answering the summons.

    No court address? Does it name the court? Call, or visit (address from the phone book or Court web site), the Court that is named on the summons and find out if there is a case on file under the case number on the summons. If there isn't, then there is a real good chance that the summons is a fake.

    Starting place is the Court and the Case Number noted in the summons.
  10. Oracle

    Oracle Banned

  11. peeper

    peeper New Member

    Oracle i called the supreme court and they said i need to call the county court so i called the county clerks office and gave then the index number of the summons and they told me it was filed on dec 6th 2007.I told her i received a copy of the summons on jan 9th 2008.She told me i could answer the complaint by regular mail.I want to use the defense that the account number and/or reference number on the summons is incorrect and that i was not properly served. Here is how i would word my answer tell me if this would be ok?If not could you please help me word it correctly?

    Attention county clerk
    Regarding index numberxxxxx-xx

    Please be advised i hereby request the court to dismiss any court action on the grounds that the account and/or reference number listed on the above indexed summons is incorrect and that the defendent was not properly served.Summons was filed on dec6,2007 defendent received a copy of the summons on jan9th 2008 by regular mail.

    Also the amount of the suit is 5,274.00 plus interest from may5th 2007 plus court cost.
  12. MiniYou

    MiniYou New Member

    I'm not an expert pepper, but it seems perfectly worded to me. It has all the particulars and is very to the point.

    GL, what a mess.
  13. Dumb Bob

    Dumb Bob New Member

    I suspect you should consult with a lawyer. You should also read your court's rules. There are usually proper formats for Appearances and Answers. You should follow those rules.

    One thing to note, there are good reasons for not allowing folks to litigate and then later bring up service issues, for example after the Statute of Limitations is up. So you should, perhaps, find out what limits there are on this and what proper service means. If they gave the Summons to your cat, that's probably not valid service, but I don't know, I'm not reading the rules of your court.

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