Re: Re: Re: service of complaint improper? In my case, the amount in controversy was $6k. However, it was the OC who was the plaintiff so I guess my case was different in that respect. I had a decent defense: estoppel, detrimental reliance. But the reality was that a judge was never going to find and order that I owed them nothing. I'd have to pay something. And being that the contract had an attorney's fee provision, I didn't wanna take the chance on losing at trial AND having to pay attorneys fees just because I wanted to put up a noble fight. Your case may indeed by different. Perhaps after discovery, you can send them a CCP 998 offer for 50 cents on the dollar.
Re: Re: service of complaint improper? ficofghtr, Actually I have several clues thank you very much. The whole idea from my posts was to settle this as quickly as possible. I offered some suggestions based on my own experiance, how you proceed is entirely up to you. Good luck and please post back how it turns out.
This is called domiciliary service. In virtually every state, if not all, the law authroizes this type of service as long as your wife lives with you.
Re: Re: service of complaint improper? Unless you requested validation under th FDCPA, they have no duty to let you know they are fixing to sue you.
The Process server is required to file an Affidavit of Service with the Court, an dthe Affidavit is supposed to have aphysical description of who was served. I would think the "Gender" check-box would prove you were not personally served, BUT that may not be sufficient to overcome the actual service since in most jurisdictions, leaving the summons with someone in the same household who is of "reasonable and mature age" (the definition of this varies from state to state) is often considered service. A Spouse certainly would meet that bar. Also, if you live in a Community Property State (ID, WA, CA, NV, AZ, NM, TX, LA, WI) you spouse may be a de-facto defendant and therefore the service was proper.
Re: Re: service of complaint improper? That's not what that opinion letter said! It says they must NOTIFY within 5 days, if they don't put the validation mini-miranda in their summons. They do not have to have validation to you in 5 days. Were ya just typing too fast?
Re: Re: service of complaint improper? As far as lb's post, the CA WILL attempt to prove the debt in court letgofico -------------------------- No the ca will be trying to defend themselves for violating my rites in a separate suit! THE END ** *** ** LB 59 """""""""```~~~```'"""""""""
Re: Re: service of complaint improper? As far as lb's post, the CA WILL attempt to prove the debt in court letgofico -------------------------- No the ca will be trying to defend themselves for violating my rites in a separate suit! THE END ** *** ** LB 59 """""""""```~~~```'"""""""""
Re: Re: service of complaint improper? For a good general overview of service issues in the California Superior Court -- go to: http://www.sandiego.courts.ca.gov/superior/courts/service.html
Re: Re: Re: service of complaint improper? Yes, I meant to say "Validation Notice", not just Validation. The CA did not include a validation notice on the complaint itself; nor did they send me a separate validation notice within 5-days. I will allege FDCPA violation, but I'm sure the CA will just show a computer-generated collection notice and claim they did send me a collection notice before filing the lawsuit. I'm researching case law to see where courts put the proof of burden. I've never received a collection notice by certified mail or one requiring my signature. Curious to see how courts rule on this one. If the burden-of-proof i son the CA then most debtors could claim the complaint is the first "communication" from the CA. Regarding the whole service of summons, it's usually not worth the effort to file a motion to dismiss b/c the opposing lawyer will just serve you right before the hearing and then ask the judge for the proper extension. My point in doing so is to make the other lawyer perform more work b/c the debt is relatively small (they claim ~$1500; actual is < $900, and disputed at that). One tricky part of my defense is that I do NOT want to discuss the terms of the contract whatosever. That's analogous to the old trick when someone says "hey, dude, you owe me $20" and you sayd "no I don't, I owe you $10!". I've got a good defense especially since I am pretty sure the CA cannot produce the original contract. They may have a copy, but then the fight will be on whether that document can be authenticated. In addition, there are also some defenses related to assignment of the debt by the OC that John Gliha is helping me with. I'll keep you guys updated....
