Received Summons Dated 7 Months Ago!

You would have to check with your local court to acertain what the rules are for process service. I am pretty sure that here in the 8th JD service can be afixed at a prominate place at the front of your residence in conjunction with being mailed.

I would think that if the process server actually did visit your residence and leave the summons chances are that they will use the correct date on the affidavit of service. But then again, you never know. I would go ahead and file an answer, if you find that the service was improper raise that as an affirmitive defense.

As for the date, I have no idea. I am preparing an answer for a summons that was dated last november. I just received it in the mail last week. At least I have the envelope with the postmark to show that's when it was mailed.

Good Luck.

 

You'll need to contact their attorneys at this point. You can send them a DV letter but if they already have a default judgment it will do no good. Contact the court and find out what happened with the case and then ask them if you can dispute due to the fact you didnt get the summons until now. Ask the court if they show an entry for service and on what date.

 

What "someone else" was it served on? At what address?

Do you have any idea what alleged debt this is related to?

 

You may have to go down to the court if you want to see the details of "service".

 

Contact the court, not the attorney...

Now, my guess is that, the SOL was coming up, they wanted to protect their case from an SOL defense, while they got their ducks lined up in a row.

Filing date is what is used to determine whether the case is barred by the SOL. So by filing first, then serving when they are ready, they've protected the claim.

In federal (FRCP Rule 4(m)), the time limit of service is 120 days (4 months); however the plaintiff can try to justify not serving within that time frame. - I just happened to have FRCP Rule 4 sitting right by the computer.

State & lower courts may have more lenient policies though.

 

Federal rules are for federal courts only. State and local courts each have their own and are based on state law not federal even though they are usually somewhat similar.

 

You might apply to file in forma pauperus and see what happens. You have to prove your income and expenses in order to qualify.

 

The important question is how will you answer? What will you use for affirmative defenses? Do you plan to countersue and if so what would your grounds be for that?

Do you have your interrogatories, admissions and demand for production of documents ready to go so you don't end up behind the 8 ball on those?

 

C1; I know, I just gave that as an illustration that their is a time frame.

You may want to check (a) the local court web site to see if they have their rules posted on it.

Otherwise, you may have to ask the local lawyer referral service for a lawyer that you can ask. (In most areas, the summons cover letter must contain a referral to the local lawyer referral service.)

 

Cap 1 ~ Where might one find forms for these? Especially the discover items? Thanks!

 

You don't. There are none that I know of. Each attorney makes up his own according to whatever the individual case calls for. Admissions, interrogatories and demand for production of documents is pretty standard with each attorney but although they all follow a general pattern, they do vary from attorney to attorney and from case to case. So they have their own and simply pull them up off their hard drives and send them to the respondent.

Same for affirmative defenses and almost all other motions. They have their own templates or make them up as they go depending on what the situation calls for.

The defendant who is acting pro se has to do the same but he doesn't have the advantage of a library of such files to refer to as the practicing attorney does. So he has to either learn how to do it himself which he seldom has time to do or he has to get help from an attorney or find someone willing to help him on a one-on-one basis.

Both the plaintiff and the pro se have to know and understand a wide range of documents, motions, briefs and the like in order to be successful. In order to stand a crying chance of winning in most situations the defendant will have to file an answer to the court, affirmative defenses, maybe motions to dismiss and maybe will want to file counter suit as well.

Then comes the discovery phase. That can include such things as interrogatories, admissions and demand for production of documents. It can also include other motions such as motions for summary judgment, motions to compel, motions in limine, subpoena duces tecum and more.

To each of these motions the party opposing them has to file objections to them or might need to file counter motions as well.

Interrogatories can be especially tricky and in order to answer them one must know the rules of procedure and the rules of evidence. Each question to which the respondent wishes to object should also quote the specific Rule of Procedure or Evidence upon which he relies.

In otherwords, it can become a case of each side trying to bury the other under a mountain of paperwork if at all possible.

One of the main problems faced by the pro se is sticking to arguments solidly based in the law and not getting off into frivolous arguments. It is all too easy to bury yourself instead of the opponent.

 

It is possible unless it were to be dismissed with prejudice. But what makes you think it might be dismissed?

It can happen.

If at all possible then yes.

Probably by phone would be fine.

If you go at it right it can sometimes be done but I wouldn't count on it.

 

You can file an answer to the complaint if you know how. States such as California, Colorado and New York have adopted what they call a simplified court system. They are simplified for the plaintiff but are a nightmare for the defendant. You can opt out of the simplified system and go for a full blown hearing so that you can present your affirmative defenses, use interrogatories , admissions and demand for production of documents among many other things. Provided you know how to do those things, of course.

Do you mean filing a forma pauperous motion?

Whether you hire an attorney or not you have a tough road to travel. Beating a judgment isn't easy and it isn't any easier for attorneys. They usually lose and they know ahead of time that there are few defenses that will work.
That is why they usually try to work out a settlement rather than actually going to court. They will often try to reach a settlement for around 70 to 80 percent of the debt. You say that the suit is for $8300 so let's do some math.

Using 70% to give the attorneys the benefit of the probabilities, we now have
$5810 as a target settlement. Adding in the attorney and the filing fee we come up with $6820 as a final possible settlement figure. A possible $1480 savings over doing nothing at all.

Now let's look at the alternative not using the forma pauperous route because that is a tough hurdle to get over if you have any kind of income.

Since you have not told us how much they demand for attorney fees in their judgment we will use a fairly average figure of 20% of the total as attorney fees for the plaintiff. Attorney fees may be as much as $1660 or they may be slightly more or maybe even less. Since you would be filing pro se you can use a recent Supreme Court case in which the Supremes ruled that an attorney may not be awarded attorney fees when litigating against a pro se litigant because it would not be fair since if the pro se litigant won the decision and demanded attorney fees they would not be awarded because he is not a barred attorney. So you might be able to cut that final figure down to somewhere around $6640.

In the event that the attorney has named a figure he wants for his attorney fees you can object to that on the grounds that the agreement calls for the attorney to get "reasonable" attorney fees and what is reasonable is a matter for the court to decide, not the attorney. If indeed a contract or agreement was involved and the attorney protested your point then let him produce the contract or agreement to see what it said about attorney fees. The decision of this court Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir. 2002) seems to go even further and indicates that demanding a sum certain for attorney fees may also violate FDCPA.

Since you won't have to pay your attorney if you file pro se then you would save $830 more and now your final figure might be as low as $5800.00

Of course, we have not added in the cost of the court reporter which, in courts that do not record the proceedings themselves may run somewhere around $20 or $30 and of course you would not want to appear in court without a court reporter because if you do then you are going to have an awfully tough time filing appeals if you choose to do so. You should always build in automatic basis for appeal on questions of law so you don't have to put up a bond in the full amount of the award in order to appeal the decision of the court.

If you appeal the judgment you will probably lose but if you build in one or more questions of law you at least have a crying chance of winning appeal and hence getting the judgment remanded to the trial court for a rehearing based on the ruling of the appellate court.

So the question is whether or not learning how to properly defend your case and doing it worth about $2500 to you?