My wife was served with the complaint, not me. Does that constitute valid service? I am the only defendant named on the complaint. The service processor rang the door bell, asked "Rick Johson?," my wife said "yes?" wondering what they guy wanted, and he handed her the docs. Is that valid service? If not, what can I do? The complaint is for a consumer debt in CA Superior Court. About $1400.
I am no lawyer but if she answered yes for you then I would say you have been served. Just logical thinking you know .
Not really. What if we were divorced or separated? What if I was out of town or the country? She answered "Yes?" with a question and then they served the papers. Anyone could have said "yes?" meaning "yes, can I help you". I believe even if they ask if I lived there, and my wife said "yes", they couldn't just drop the papers off to her. They have to serve me directly. I'm not a lawyer either... just exploring all avenues. If this is indeed improper service- do I: 1. file motion to dismiss case? They will likely just re-file, but at least they know I mean business. 2. Do nothing and let them get a judgement and then later try for a motion to vacate? This may be a bit riskier in that they first get a judgement and I may have to deal with CRA's later to get it removed, but they are less likely to re-file if they get default judgement and I get it vacated.
I think filing motion for dismissal is good idea, considering it costs $123 for him to file the complaint in the first place! The original debt was only $900 (they claim $1500 - I am curious to see what "fees" were added - and $380 in attorney's fees). They used fill-in-the-blank forms. Some software called Legal Solutions Plus. I'd just love to see them file another complaint and cost them more fees. LOL. I won't let them win! (if I can help it). Fee to file complaint < $10,000 in my county's Superior Court ($123.80): http://www.sanmateocourt.org/feesup.htm#civl
You need to know the law in your state. In many states, you can leave the summons with anyone over a certain age. In my state it is 16 and they are considered to be in charge of the household. In other words, they have the understanding and maturity to see that you receive the summons. Years ago, a coworker was sued and he was out of the office on a call and the deputy left the summons with our receptionist. He tried to get it thrown out on improper service and the judge denied the motion. The receptionist was over the age of 16 and part of her job was insuring that messages were delivered and the judge didn't believe she'd be working there if she didn't deliver messages. Also, I"ve seen on other sites that Ca. has a provision that the loser of a lawsuit is responsible for the other sides legal fees. Is that true?
Doing some research on CA Code of Civil Procedure, they can indeed serve to member of my household at my place of residence, as long as they follow-up within 10 days with copy of summons. They also have 5-days according to previous FTC opinion letter on one of the other threads which states if the complaint is my first notification of attempt to collect this debt by the debt collector. I plan on sending validation request after the 10-day period. If they move for summary judgement I can claim debt was never verified... hope that works. I also need to come up with good answer to the complaint. My other option is to let judgement happen then file motion to vacate later if one or both of the above occurs in my favor.
I'd rather settle for less. Why pay $900 when I still can have them hang themsevles on FDCPA? Whether or not I will win an FDCPA suit is a different story... but if I put up enough of a vigorous defense they may settle for much less.
Your forgeting a major point, this is a valid debt. Your son lost or had his cell phone stolen by his "friend". He failed to tell you this in a reasonable time so no police report was filed and you were unable to notify the cell company. You owe this money. Trying to "trip" a CA into a violation for the purpose of avoiding a valid debt is not a very honorable thing to do. Try to get the CA or their attorney to settle. Don't waste your time here on FDCPA violations, the amount of time and money you are going to spend to research, prepare and prosecute such a suit is going to be about as much as it will take to settle this and be done with it. If you have some procedural problem with service that's fine, but the CA will just go ahead and refile unless you move this into formal rules, then you stand the chance of paying additional costs. If the bill was five years old and they are now coming after you I could understand putting up a stronger fight, but I think you are going to save alot of time and headaches by trying to settle.
Sorry, I just reread my post. I am not calling you dishonest or questioning your character. I just know from experience that when you start grasping at straws for a defense or countersuit, the courts tend to get very grouchy and it ends up costing you more in the long run. How you proceed is up to you, having won and lost going against creditors and CA's in court has taught me that unless the CA is grossly abusive or negligent, the courts could care less. They only see the debt.
Using FDCPA to our advantage is the whole point. They may have violated MY RIGHTS by their methods of collecting, which INCLUDES broadsiding me with a lawsuit without any prior notificaton. If they don't send me validation within 5-days, nor include validation on the complaint itself (which they did not) that is considered a violation fo the FDCPA. Read the FTC opinion letter in my other thread. Whether the debt is considered "valid" or not is only one of the issues. They added a bunch of fees to increase the amount owed from $900 to $1500. What are these fees? Did they do this properly? If not, it's another violation of FDCPA. This is issue is about debt collection practices and the RIGHTS of the consumer. This is what CN is all about. That's why I'm posting about my experience. So others can help me and I can help others. Make sense?
Re: Re: service of complaint improper? Even debt collectors have to follow rules. I have rights, regardless of any alleged debt. OJ has rights. The cops planted evidence. He goes free. It's our system. Hmm... LizardKing and many others here would greatly disagree with you. I've already done a ton of research for previous CA issues with FDCPA. I've done pro se littigation before. I just have some questions with the specifics of this particular situation. This may be true if the debt was large, but we're talking $900 (they claim $1500)... it costs $123.80 to file in my county's Superior Court. How many times will they file before they are willing to settle? If they have to file again, and realize I will fight, and they live 400 miles away... maybe they are more willing to negotiate? The point is when it's a lawsuit there are many other factors to consider other than "is this a valid debt"... and even that is contested to a certain degree. I did not authorize those charges, that is for sure. I morally do not owe it. The terms of the contract and the method in which I discovered those charges may mean that I owe the charges, but in my mind I do not. And this CA may be violating my rights by FDCPA with broadsiding me with a lawsuit. I'll know in 3 more days and will proceed accordingly.
Re: Re: service of complaint improper? 1*Your forgetting a major point, this is a valid debt. 2*You owe this money 3*Trying to "trip" a CA into a violation for the purpose of avoiding a valid debt is not a very honorable thing to do. 4* Don't waste your time here on FDCPA violations, the amount of time and money you are going to spend to research, prepare and prosecute such a suit is going to be about as much as it will take to settle this and be done with it. letgofico ====================== ========================= 1*Ah:So you have taken it upon your self to validate for the CA! Who gave you that authority? 2*Prove it. 3*Prove it's valid. How is making the CA follow rules of procedure tripping them up? Try to get the CA or their attorney to settle. 4*Is the hog dirty-That why you're trying to wash it? THE END ** *** ** LB 59 """""""""```~~~```'"""""""""
Re: Re: service of complaint improper? Lizardking and others who have sued, have done so based on the CA or CRA's committing violations and refusing to correct them. You posted that: 1. You had a contract with a cell company. 2. Your son had a friend steal the phone. 3. Your son failed to tell you that the phone was stolen. 4. You failed to file a police report within a reasonable time. 4. You failed to contact the cell company to have the phone blocked within a reasonable time. I am not questioning your morals, I am only trying to tell you that from my own experiences, the judge that you will go before is not going to listen to what happened after the suit was filed. UNLESS, you plan on spending a lot of time and money in defending this. The amount of time and money this will take will far exceed the amount that this CA will settle for. As far as proving the debt or improper service: You have to file an answer or entry of appearance very soon, if you fail to file, the CA will get a default judgment. You will have an overwhelming job of getting this set aside. With this fact in mind, do you want to spend time on an FDCPA violation that the judge most likely won't listen too. Again, I am not questioning your morals, it's just a sad fact that most judges don't take the FDCPA or your rights seriously when the Plaintiff is sitting in court with a contract that you breached. If you plan on moving to dismiss on improper service, you need to file a motion before you file your answer. I would definately do this. Most lawyers do this automatically just to delay or add costs to the opposing side. The whole idea of validation is to lay a foundation that you can use to gain the upper hand against a CA or creditor. In your case, the CA jumped the collection process and went straight to litigation. As far as lb's post, the CA WILL attempt to prove the debt in court, I am not validating for the CA, I am only attempting to give you an insight as to what you are in for. Don't make the mistake of focusing on some FDCPA technicality in hopes of making this go away, If your rights were violated you can focus on that later. The main concern here is to make this go away as quickly and inexpensively as possible.
Re: Re: service of complaint improper? letgofico, you have no clue. The point of fighting a lawsuit and pressuring the other to dismiss or settle is to never let it get to the judge in the first place. I will not be discussing the terms of service agreement. That is suicide! I will be discussing the specifics of the CA's authority and consideration to collect on this allege debt. Can they even prove the debt exists? They claim breach of contract. Show me the contract? Is my signature authenticated? Did they send validation of the debt? They *HAVE TO*. It's the law. FDCPA, buddy. Otherwise, any schmuck CA could just rack up thousands of dollars of collection costs. Improper service is just one element of my defense. I have many others. I want to see their assignment contract with the OC. I bet they can't prove it. Can they show they posted sufficient bond in my state as required to do business? Will they go through discovery to prove such things? All this extra work, and their office is 400 miles away from the court? For $900-1500 disputed debt, I don't think so.
With the exception of the question of service, I was in a similar position last year. Subaru Credit sued me for breach of K. I answered the complaint (general denials, plus some affirmative defenses) and was content to battle it out. They had offered me a reduced settlement on the balance, but I rejected it on principle. I should have taken it. Once the OC's attorneys file the complaint; review your answer; prepare CMC (case management conference) Statements and appear at same; they're going to want to recoup their attorney's fees. And they'll just as soon take their chances with either a judgment or a settlement for the full amount or very close to it. I'd seriously consider the fact that the meter's running, and every action you take, they're going to react--with billable hours and higher fees. Just a thought.
Re: Re: Re: service of complaint improper? I applaud your willingness to fight it out. Again, however, please consider that many attorneys (I've worked for them for 15 years) have egos and will want to make you pay just as hard as they have to work. The more documents they have to compile, the more fees they generate. Discovery? If they have to, they will. And if you miraculously survive a dispositive motion, you'll still have to try the case. And depending on your county, you may get a judge who cares very little about FCRA or FCDPA. Whether your try to fight it out pre-trial or whether you try to get a judgment set aside, it's a big gamble. One thing for sure: the debt won't be $900 after all that.
Re: Re: Re: service of complaint improper? There are laws on reasonable attorney fees and other costs, and I highly doubt the other attorney would risk $500-750 for a full day's court reporter at a deposition, plus fly 400 miles out, hotel, etc., for an alleged $1500 debt. I've done pro se littigation myself and know a thing or too. When they get my answer & interrogatories they will want to settle. And let's not forget I have a counter-claim for well-documented FDCPA violations, the sum of which is much greater than the allege debt! Whether the judge considers this is moot point b/c I won't let it get to trial.
Re: Re: service of complaint improper? How much was the alleged debt for? The dollar amount might make a difference. Also, your defense is *much* different for a CA vs. OC. A CA is considered a third-party collector and their different standards that apply, specifically with regards to a lawsuit and the nature of assignment. You can also make FDCPA counter-claim very threatening in lawsuit, even if you think judge will only want to hear the facts of the alleged debt itself. It depends on the nature of the FDCPA violations and your document trail. That's why validation techniques are so important, even if you don't start until a lawsuit occurs. Also, just remember that as much as it is a crapshoot for you, it is a crapshoot for the CA too. Will they be willing to risk not recovering attorneys fees for such a small debt? I've also read many cases where if the facts of the case are not perfectly clear cut, even if the judge rules in favor of the plantiff, the judge will not grant attorney's fees, especially if you offer a reasonable settlement pre-trial. I've also seen several cases where, in a disputed case, the judge forces the plantif to take the initial settlement offered by defendant in good faith. If you have no real dispute regarding the alleged debt, then that's a different story. I've got a couple hundred cases left to read through still... lot of work but great fun!
