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    kendal1174's Avatar
    kendal1174 Posts: 2, Reputation: 1
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    #1

    Apr 20, 2009, 09:17 AM
    Court Summons from another state
    I recently moved to NC in 2006 from OHIO. My ex-wife just sent me a summons regarding a student loan my ex-father-in-law co-signed for me. The amount has ballooned from $5000.00 to $11,000.00 due to interest charged. The company has hired an attorney to get their money. The loan was taken out in 2001 and until now, I have never heard from them regarding my payments or payment arrangements. The company has since changed their name to another company. On top of everything else. I must file a response to the clerk of court in Ohio in 8 days or I could lose the case. I cannot get to Ohio to do this. The attorney also wants a response which I will send to him. There is no way I will be able to pay this large amount of money.

    What do I need to do if I cannot get to Ohio to file a response with the clerk of courts?
    How can I prevent a judgement from being issued against me? Would it be best to just file bankruptcy and start all over again?

    Thanks,

    KM
    JudyKayTee's Avatar
    JudyKayTee Posts: 46,503, Reputation: 4600
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    #2

    Apr 20, 2009, 09:45 AM

    If it's a summons, you have to be served. Someone MAILING this to you is not service. Who - in theory - is suing you? Your ex-father-in-law? The company that gave you the loan?
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    kendal1174 Posts: 2, Reputation: 1
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    #3

    Apr 20, 2009, 10:26 AM
    Quote Originally Posted by JudyKayTee View Post
    If it's a summons, you have to be served. Someone MAILING this to you is not service. Who - in theory - is suing you? Your ex-father-in-law? The company that gave you the loan?
    My ex-father-in-law co signed the loan with me so I assume he is getting sued as well. My ex-wife just mailed the summons to me after she has had it since March 30th. The compnay that gave me the loan is sueing me and I have until April 28th to respond. What should I do?
    AK lawyer's Avatar
    AK lawyer Posts: 12,592, Reputation: 977
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    #4

    Apr 20, 2009, 02:30 PM
    Quote Originally Posted by kendal1174 View Post
    What do I need to do if I cannot get to Ohio to file a response with the clerk of courts?
    There is a magnificant device which can be useful in cases like this.

    ...

    It is called mail.

    Sorry, but no one in his right mind would actually travel to Ohio merely to file an answer.
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    ScottGem Posts: 64,966, Reputation: 6056
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    #5

    Apr 20, 2009, 02:34 PM

    Does the summons list both you and the ex FIL? If so, he can handle the response for both of you.

    But the fact is that you owe this money. So you should be contacting them to arrange payment.
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    JudyKayTee Posts: 46,503, Reputation: 4600
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    #6

    Apr 20, 2009, 05:28 PM
    Quote Originally Posted by AK lawyer View Post
    There is a magnificant device which can be useful in cases like this.

    ...

    It is called mail.

    Sorry, but no one in his right mind would actually travel to Ohio merely to file an answer.


    Do you see legal service here?
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    AK lawyer Posts: 12,592, Reputation: 977
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    #7

    Apr 21, 2009, 08:41 AM
    Quote Originally Posted by JudyKayTee View Post
    Do you see legal service here?
    Although remotely possible (A summons addressed to him could theoretically have been sent by certified mail by the ex.), not likely.. We don't have that information and such would be only a guess.

    But you are right. By noting it is possible to file an answer by mail, I don't mean to imply that he should do so at this time.
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    JudyKayTee Posts: 46,503, Reputation: 4600
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    #8

    Apr 21, 2009, 09:54 AM

    This is possibly a discussion for some other board but with the amount of the debt - $11,000 - this is certainly not a Small Claims Court matter and I am not aware of any superior court which provides for service by certified mail. Perhaps she accepted on his behalf (for whatever reason people do things like that) and the mail was the follow up but I don't see legal service here.

    I'm not saying the wife couldn't send it to him certified mail. I'm asking how legal service was made on him "through" the ex-wife (in another State).

    So - what is your advice? He responds or he does not? My advice is that he responds, copy to the Court, and states that he has not been legally served, copy to co-Defendant, copy to ex-wife.

    He is very likely to have an action against the "ex" if she has someone accepted service on his behalf when she is NOT a responsible party at his residence, their residences being separate, in separate States.
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    AK lawyer Posts: 12,592, Reputation: 977
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    #9

    Apr 21, 2009, 11:16 AM
    Quote Originally Posted by JudyKayTee View Post
    So - what is your advice? He responds or he does not? My advice is that he responds, copy to the Court, and states that he has not been legally served, copy to co-Defendant, copy to ex-wife.
    Not.

    You are talking about the equivalent of a 12 (b) (5) motion under the Federal Rules of Civil Procedure. I have never understood the utility of such a motion, because all it does is tip off the Plaintiff as to how to achieve proper service the next time.

    FYI, JudyKayTee, the FRCP doesn't provide for service by certified mail, but, once again, you will find my state to be odd, because the Alaska equivalent (based upon the FRCP, but different) does.
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    JudyKayTee Posts: 46,503, Reputation: 4600
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    #10

    Apr 21, 2009, 11:28 AM
    Quote Originally Posted by AK lawyer View Post
    Not.

    You are talking about the equivalent of a 12 (b) (5) motion under the Federal Rules of Civil Procedure. I have never understood the utility of such a motion, because all it does is tip off the Plaintiff as to how to achieve proper service the next time.

    FYI, JudyKayTee, the FRCP doesn't provide for service by certified mail, but, once again, you will find my state to be odd, because the Alaska equivalent (based upon the FRCP, but different) does.


    I see a more practical approach - do nothing, find a Judgment against "you," spend the rest of your life trying to get it straightened out. I am more to the point - you notify the person that you weren't served. I don't think OP can afford a Judgment and the time/energy/cost of straightening it out.

    I can find nothing in Ohio that provides for service by certified mail.
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    twinkiedooter Posts: 12,172, Reputation: 1054
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    #11

    Apr 21, 2009, 11:35 AM

    Ohio State Common Pleas Court requires proper service on lawsuits which means done by a registered process server.

    County Court Small Claims summons can be served by the Clerk mailing certified mail return receipt and be used as service.

    To be properly served in NC and count as legitimate service in Ohio, the summons and complaint would have had to be sent to NC to a registered process server in NC and served personally on the person for proper service to have been obtained.
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    AK lawyer Posts: 12,592, Reputation: 977
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    #12

    Apr 21, 2009, 11:41 AM
    Quote Originally Posted by JudyKayTee View Post
    I see a more practical approach - do nothing, find a Judgment against "you," spend the rest of your life trying to get it straightened out. ...
    No. Investigate whether there has in fact been a return of service. Call the clerk of court.

    My guess would be that the ex simply mailed a summons her father received, along with a note to the effect that "you need to take care of this." The OP ("original poster"?) is misunderstanding it and thinking that he will be defaulted if he doesn't do something.

    Unless the plaintiff files a return of service alleging some sort of attempt to serve the OP, it is unlikely that the Ohio court will in fact default him. Especially, if as you suggest, personal service is required.
    Also, it is possible that some other form of service was used, such as service by publication.
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    twinkiedooter Posts: 12,172, Reputation: 1054
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    #13

    Apr 21, 2009, 12:23 PM

    OHIO RULES OF CIVIL PROCEDURE
    RULE 4.3 Process: Out-of-State Service
    (A) When service permitted. Service of process may be made outside of this state, as provided in this rule, in any action in this state, upon a person who, at the time of service of process, is a nonresident of this state or is a resident of this state who is absent from this state. "Person" includes an individual, an individual's executor, administrator, or other personal representative, or a corporation, partnership, association, or any other legal or commercial entity, who, acting directly or by an agent, has caused an event to occur out of which the claim that is the subject of the complaint arose, from the person's:

    (1) Transacting any business in this state;

    (2) Contracting to supply services or goods in this state;

    (3) Causing tortious injury by an act or omission in this state, including, but not limited to, actions arising out of the ownership, operation, or use of a motor vehicle or aircraft in this state;

    (4) Causing tortious injury in this state by an act or omission outside this state if the person regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;

    (5) Causing injury in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when the person to be served might reasonably have expected the person who was injured to use, consume, or be affected by the goods in this state, provided that the person to be served also regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;

    (6) Having an interest in, using, or possessing real property in this state;

    (7) Contracting to insure any person, property, or risk located within this state at the time of contracting;

    (8) Living in the marital relationship within this state notwithstanding subsequent departure from this state, as to all obligations arising for spousal support, custody, child support, or property settlement, if the other party to the marital relationship continues to reside in this state;

    (9) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons, when the person to be served might reasonably have expected that some person would be injured by the act in this state;

    (10) Causing tortious injury to any person by a criminal act, any element of which takes place in this state, that the person to be served commits or in the commission of which the person to be served is guilty of complicity.

    (B) Methods of service.

    (1) Service by certified or express mail. Evidenced by return receipt signed by any person, service of any process shall be by certified or express mail unless otherwise permitted by these rules. The clerk shall place a copy of the process and complaint or other document to be served in an envelope. The clerk shall address the envelope to the person to be served at the address set forth in the caption or at the address set forth in written instructions furnished to the clerk with instructions to forward. The clerk shall affix adequate postage and place the sealed envelope in the United States mail as certified or express mail return receipt requested with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered.

    The clerk shall forthwith enter the fact of mailing on the appearance docket and make a similar entry when the return receipt is received. If the envelope is returned with an endorsement showing failure of delivery, the clerk shall forthwith notify, by mail, the attorney of record or, if there is no attorney of record, the party at whose instance process was issued and enter the fact of notification on the appearance docket. The clerk shall file the return receipt or returned envelope in the records of the action. If the envelope is returned with an endorsement showing failure of delivery, service is complete when the attorney or serving party, after notification by the clerk, files with the clerk an affidavit setting forth facts indicating the reasonable diligence utilized to ascertain the whereabouts of the party to be served.

    All postage shall be charged to costs. If the parties to be served by certified or express mail are numerous and the clerk determines there is insufficient security for costs, the clerk may require the party requesting service to advance an amount estimated by the clerk to be sufficient to pay the postage.

    (2) Personal service. When ordered by the court, a "person" as defined in division (A) of this rule may be personally served with a copy of the process and complaint or other document to be served. Service under this division may be made by any person not less than eighteen years of age who is not a party and who has been designated by order of the court. On request, the clerk shall deliver the summons to the plaintiff for transmission to the person who will make the service.

    Proof of service may be made as prescribed by Civ. R. 4.1 (B) or by order of the court.

    [Effective: July 1, 1970; amended effective July 1, 1971; July 1, 1980; July 1, 1988; July 1, 1991; July 1, 1997.]
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    twinkiedooter Posts: 12,172, Reputation: 1054
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    #14

    Apr 21, 2009, 12:26 PM
    The above Rule 4.3 would be applicable if the Plaintiff had your NC address.
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    JudyKayTee Posts: 46,503, Reputation: 4600
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    #15

    Apr 21, 2009, 12:45 PM
    Quote Originally Posted by AK lawyer View Post
    My guess would be that the ex simply mailed a summons her father received, along with a note to the effect that "you need to take care of this." The OP ("original poster"?) is misunderstanding it and thinking that he will be defaulted if he doesn't do something.

    I don't think you can guess on the circumstances here - OP has posted all that he knows. I see no indication of any notes or anything else.

    I think the OP CAN be defaulted IF his "ex" accepted service on his behalf and never disclosed the circumstances. I don't know why you continue to deny this is a real possibility.

    Could he check with the Court to see if service has been perfected? Certainly. Unless he's living under a rock someplace the creditor will be so advised and locate him. I don't see why OP would go through all of this.

    I see no personal service on the OP. Certainly the "ex" and father in law know where he is so I also do not see service by publication. Again, unless he lives under a rock or in a cave I guarantee he's NOT that difficult to locate.
    AK lawyer's Avatar
    AK lawyer Posts: 12,592, Reputation: 977
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    #16

    Apr 21, 2009, 04:03 PM
    Quote Originally Posted by JudyKayTee View Post
    I think the OP CAN be defaulted IF his "ex" accepted service on his behalf and never disclosed the circumstances. I don't know why you continue to deny this is a real possibility.
    Yes. That's another possibility. But I wouldn't put it in those terms. The "ex" very well may not have been asked whether she would agree to accept service. The process server very well could have perhaps asked her name ("Are you [first name] [last name of the OP]?"), handed her the papers, and just said "I just served your husband with court process. Have a nice day.", not giving her the chance to say that they weren't married anymore and, more to the point, that he no longer lived there. Essentially what you are suggesting is that the process server assumed he still lived with her. She wouldn't be liable for "accepting service of process" in that case.

    But until the "OP" replies to our questions, it's just guesswork. We are shooting in the dark.
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    JudyKayTee Posts: 46,503, Reputation: 4600
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    #17

    Apr 22, 2009, 06:13 AM
    Quote Originally Posted by AK lawyer View Post
    Yes. That's another possibility. But I wouldn't put it in those terms. The "ex" very well may not have been asked whether she would agree to accept service. The process server very well could have perhaps asked her name ("Are you [first name] [last name of the OP]?"), handed her the papers, and just said "I just served your husband with court process. Have a nice day.", not giving her the chance to say that they weren't married anymore and, more to the point, that he no longer lived there. Essentially what you are suggesting is that the process server assumed he still lived with her. She wouldn't be liable for "accepting service of process" in that case.

    But until the "OP" replies to our questions, it's just guesswork. We are shooting in the dark.

    I own a process service company - you are required to ASK the person of legal age if they will accept for the other person. If she wasn't asked or didn't tell the truth it is not valid service. I don't know how many papers you serve or how/why you think the process server would have her name or know her relationship to the OP or would say, "I just served your husband with court process." Substitute service is touchy and unless this is a rogue process server, I just don't see the scenario as you posted it. Process servers learn very early in the game not to "assume" anything.

    I find you continually reading things which are simply not there into posts, complicating questions, dancing around the law and the facts.

    But you're right - this is all shooting in the dark.

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