Hello
I have received (tapped to my front door) a summons asking me to take the summons and go to a civil court. The summon is brought on by debt collector.

Please advice me on what to do exactly.
Should I hire a lawyer?
Should I go to court and represent myself?

I am being perused due to ID theft. I received a CC statement from a bank asking for $500
Amount due. When I called them to find out what this all about they said the card was used on eBay. When I asked for more details ( what was bought, from whom ,and to whom the transaction took place ) they couldn't provide with any details because they didn't have it.
I refused to pay it and filed a fraud claim with bank the same week I received the statement from them. The bank after investigating the fraud claim has reject it and kept on calling since me since 2005.
Now the case been sold to a debt collector.

Some of the issues

Did you file a police report on it?

Do you have all the copies of fraud reports with the bank.

You will take your reports to the police, and the reports to the bank, and your letters to the CC company showing you denied the claim.

I would have course personally hire an attorney

File an answer to the summons stating your Intent to defend. This will get you a hearing. Send a copy of the Intent to Defend to the plaintiff with your request for verification of the debt.

At the hearing you present your proof of ID theft and let the judge rule.

Hello
I have received (tapped to my front door) a summons asking me to take the summons and go to a civil court. The summon is brought on by debt collector. ....

What jurisdiction is this? In most areas, taping it to your door is not considered valid service.

What jurisdiction is this? In most areas, taping it to your door is not considered valid service.


I'm sure it's nail and mail - I am not aware of a State where this form of substitute service is not allowed. My process servers do this all the time. It's not a one time "No one is here so I'm going to nail this" process.

If OP does not think it is valid service he/she needs to go to the Courthouse and check the Affidavit of Service.

Thanks to all for your help and responses.
After reading what you wrote I have concluded to fill an intent to defend form with some additions form different places.

Please inform me if its an appropriate letter of intent to defend letter?

Should it be sent to both court and plaintiff?

Thanks again

Civil court of the state of New York
Kings County
Plaintiff: XXXXXXXXXX
DEFENDANT:XXXXXXXXX
Index Number
C&S File NO.XXXXXX

NOTICE OF INTEND TO DEFEND


I, XXXXXXXXX hereby give Notice of Intent to defend the above titled case, and Demand strict proof of the alleged claim.Wherefore, premises considered, I deny any liablity to the plaintiff for the amount demanded, and I, the defendant demands strict proof of the debt from the plaintiff.
I Also issue a interrogatories and requests for production from the plaintiff.
Interrogatory No. 1: Please describe in detail the exact amount you claim the defendant owes.

REQUEST FOR JUDICIAL NOTICE
Defendants who are unschooled in the law and ask that the court take
Judicial Notice of the enunciation of principles as stated in "Haines v. Kerner,
404 U.S . 519," wherein the court has directed that those who are
Unschooled in law making pleadings and/or complaints shall have the court
Look to the substance of the pleadings rather than the form, and also hereby
Makes the attached memorandum, including the related documents attached
Herewith, in the above-referenced case.Furthermore, Defendant's hereby
Requests the judge notify them of any sua sponte,rights or remedies they
May overlook.



-----------------------------
Defendant

Have you asked the credit card company to provide you with a copy of the original application that was filled out? This is proof or not that you did or did not apply for the credit card.

No I haven't asked them for that.
At this time and point of the case ,would they respond to inquiries and cooperate with me?

First don't try to write leagalese. The Haines vs Kerner cite is finem but you are asking the court to look at substance and then you try to write in legalese. Second, don't make demands to the court.

All you need to do is state your Intent to Defend. You then send a copy of that Intent to the plaintiff asking for verficiation of the debt.

I'm sure it's nail and mail - I am not aware of a State where this form of substitute service is not allowed. My process servers do this all the time. It's not a one time "No one is here so I'm going to nail this" process.

If OP does not think it is valid service he/she needs to go to the Courthouse and check the Affidavit of Service.

FYI.. in California you have to serve it on the person you can't just leave it on the door or you can send through the mail with a disinterested party as witness. But normally service is personal.

This may have changed since I took the course but this is what I thought was California law: "If a copy of the summons and of the complaint cannot with reasonable diligence be personally delivered to the person to be served as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and of the complaint at such person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing. (Amended by Stats. 1989, Ch. 1416, Sec. 15.) "

in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age,

But wouldn't the above mean it had to be left with someone, not just nailed/taped to the door?

- If you got the Summon then you'll have 30 days to answer to it. It's important that you file your answer to the summon at the court before the 30 days period. If not then the plaintiff will win the case with the default judgment.
- The biggest advantage of getting a lawyer is that they know exactly and legally on how to deal with these debt collectors. They have high success rate on handling them. However, the lawyer will cost you.
- The biggest advantage of representing yourself is that you will save money on the lawyer. However, you'll need time to learn a lot on the laws to deal with these collectors. If you screw up (i.e. missing the 30 days dead line) then they'll get the judgment against you and that judgment will stick with you for years and the collectors can legally garnish your wage. If you want to have a "crash course" on the laws then there are many nolo.com books that can ramp up your knowledge

- If you got the Summon then you'll have 30 days to answer to it. It's important that you file your answer to the summon at the court before the 30 days period. If not then the plaintiff will win the case with the default judgment.
- The biggest advantage of getting a lawyer is that they know exactly and legally on how to deal with these debt collectors. They have high success rate on handling them. However, the lawyer will cost you.
- The biggest advantage of representing yourself is that you will save money on the lawyer. However, you'll need time to learn a lot on the laws to deal with these collectors. If you screw up (i.e. missing the 30 days dead line) then they'll get the judgment against you and that judgment will stick with you for years and the collectors can legally garnish your wage. If you want to have a "crash course" on the laws then there are many nolo.com books that can ramp up your knowledge


Fascinating - doesn't answer the question but fascinating just the same.

Concerning service - put in a call to someone in California and am waiting for an answer. There HAS to be a means of serving if no one answers the door, ever. But on the other hand...

EDIT: Now THIS is frightening. My friend said he uses the nail on the door service ALL the time BUT he doesn't know what the law is. What? He said that it is very possible - and the same is true in NY - that the creditor counts on the debtor assuming it's legal service and showing up. So the question remains unanswered.

And CalifDad and Scott get points... and I lose points.

Again - there must be a way and I am continuing to research. In NY - as I've posted - it's 3 attempts and then nail. There HAS to be a way to serve in California. But what is it if no one answers?

On my way to PM Cadillac.

- The biggest advantage of getting a lawyer is that they know exactly and legally on how to deal with these debt collectors. They have high success rate on handling them. However, the lawyer will cost you.
- The biggest advantage of representing yourself is that you will save money on the lawyer. However, you'll need time to learn a lot on the laws to deal with these collectors. If you screw up (i.e. missing the 30 days dead line) then they'll get the judgment against you and that judgment will stick with you for years and the collectors can legally garnish your wage. If you want to have a "crash course" on the laws then there are many nolo.com books that can ramp up your knowledge

I have to disagree with the above 2 points. In many cases, these type of suits are processed through small claims courts. In that case a lawyer may not be allowed.

Also, the laws here are pretty simple. The plaintiff has to prove that the defendant borrowed the money and didn't pay it back. Unless they can prove that the case will be dismissed. Very often the original documents are unavailable and plaintiffs may not even show if the defendant challenges them to verify the debt.

I'm sure it's nail and mail - I am not aware of a State where this form of substitute service is not allowed. My process servers do this all the time. It's not a one time "No one is here so I'm going to nail this" process.

If OP does not think it is valid service he/she needs to go to the Courthouse and check the Affidavit of Service.

This has been my experience also.

I'll check this out tomorrow a little more at the office (I don't have copy of the Code of Civil Procedure at home), but substitute service is effected by leaving a copy of the summons and complaint with a member of the household over 18, or at the defendant's place of work. And with the proof of service, there's a declaration of due diligence that is required to be filed concurrently to demonstrate that personal service was attempted unsuccessfully once before the substituted service and there needs to be some statement that the sub. Service was in fact at the defendant's home or place of work. There is no such thing as a nailing the summons to the door. I've never heard of such a thing and that just sounds bizarre to me (it's hard for me to believe any state would even allow that and call it service of process-- what if the person is on vacation for 2 weeks, or moved away?--).

I think in landlord/tenant cases the 3 day or 30 day notice can be left at the door (maybe--I haven't done any landlord-tenant stuff in a few years), but I know you cannot serve papers in any civil or family law case by just leaving them at the door. If you cannot do sub. Service, then the next step is publication.

Of course, if the summons and complaint were left at the door the OP would be well-advised to check the court's file and see what the process server said about service (you can never be sure that what's stated on the POS is correct).

Having said all of this, I'm not too sure how much effort the OP wants to put into avoiding service. Even if the service in this case is defective (which it is) I imagine they are going to serve him sooner or later.

Nail and mail - as it's called - is legal in NY.

Curious to see what you find in California.

Thanks for your quick response.

Nail and mail - as it's called - is legal in NY.

Curious to see what you find in California.

Thanks for your quick response.

I'm just going from memory but I'm about 99.99% sure that what I said was correct. I may update or confirm my response tomorrow.

Nail and mail - as it's called - is legal in NY.

Curious to see what you find in California.

Thanks for your quick response.

I assume you are referring to this statute (CVP - Civil Practice Law and Rules § 308
):


4. where service under paragraphs one and two cannot be made with due
Diligence, by affixing the summons to the door of either the actual
Place of business, dwelling place or usual place of abode within the
State of the person to be served and by either mailing the summons to
Such person at his or her last known residence or by mailing the summons
By first class mail to the person to be served at his or her actual
Place of business...

I have never heard of "nail and mail" method of servce before you described it in this furum.

The Calif. Rule you quoted earlier in this thread would not be "nail an mail" as I understand your description of that method. Under the California language you quote, one would still have to leave it with "a competent member of the household or a person ...".


No I haven't asked them for that.
At this time and point of the case ,would they respond to inquiries and cooperate with me?

Sorry, Rentedog, this question seems to have been lost in our discussion about service of process. What you need to do for this is to engage in "discovery". You would send them "interrogatories", and "requests for production" demanding that they answer specific questions and produce specified relevant documents. Or, if you choose, you can take a deposition of their records custodian or other agents and officers. If they ignore this you can ask the court for an order compelling them to answer, and if they don't obey the order you can get the court to hold them in contempt of court. There are specific court rules for how this is done.

Cadillac cleared up how service is accomplished in California and, yes, you quoted the language of NY law.

You have advised the OP to respond to the papers. You are taking the position that this IS legal service?

I realize you think that the OP's original question got lost in the discussion; I don't think a valid answer can be given until it is determined whether service is legal and complete. This won't be the first or the last time service has not been proper but the Defendant appeared and the case went forward.

Cadillac cleared up how service is accomplished in California and, yes, you quoted the language of NY law.

You have advised the OP to respond to the papers. You are taking the position that this IS legal service?

I realize you think that the OP's original question got lost in the discussion; I don't think a valid answer can be given until it is determined whether service is legal and complete. This won't be the first or the last time service has not been proper but the Defendant appeared and the case went forward.

As I read what Cadillac said, the service would probably be bad if he were in California. But upon review of the thread, it appears the OP is in NY, so the service may be valid, if all aspects of the nail and mail rule were complied with. But as Cadillac also said, "Even if the service in this case is defective (which it is) I imagine they are going to serve him sooner or later." In other words, I leave it up to the OP to decide whether to contest service, and am moving on to other aspects of his situation.

But, since you mention it, and to be perfectly clear to the OP, if he does, for example proceed to discovery or other matters, he will probably in doing so, give up his chance to contest service of process. I thought this was obvious, but maybe not.

I have learned the hard way that the obvious is not always obvious - hopefully the OP will take a close look at this. In NY service is not completed until the mailing part of the service is done so he DOES have time.

As I read what Cadillac said, the service would probably be bad if he were in California. But upon review of the thread, it appears the OP is in NY, so the service may be valid, if all aspects of the nail and mail rule were complied with. But as Cadillac also said, "Even if the service in this case is defective (which it is) I imagine they are going to serve him sooner or later." In other words, I leave it up to the OP to decide whether to contest service, and am moving on to other aspects of his situation.

But, since you mention it, and to be perfectly clear to the OP, if he does, for example proceed to discovery or other matters, he will probably in doing so, give up his chance to contest service of process. I thought this was obvious, but maybe not.

In double checking this, yes, I was right. There is no such thing as "nail and mail" service in California in civil or family law cases. However, we do have something like it in unlawful detainer cases (landlord-tenant).

As I said previously, I cannot see any great advantage in contesting service in many cases. So the OP files a motion to quash service, which is granted. Fine. Now the plaintiff cannot default him on the one service attempt. But, say on the way to the parking lot after winning his motion, the OP gets to his car and the plaintiff's attorney hands him a copy of the summons and complaint. Now he's served. It's hard to see what was gained in contesting service in such a case.

Now if you had a defendant who lived overseas, sure. That would make some sense. The difficulty in serving an out-of-country defendant might give you some advantage in bargaining. But if the defendant is some local yokel, what's the point? Half the time I just tell people to accept service by acknowledgment and receipt (they sign a receipt after being served by mail).

As I said previously, I cannot see any great advantage in contesting service in many cases.

I tend to agree.

However contesting service might be advantageous in some cases. Where the statute of limitations has tolled in the mean time, for example.

I have filed an "Intent to defend" and get a court date on June the 15th.
I was trying to put my defense. I found out that the only defense I have is my verbal statement of denial to charges.
When I received the CC statement for the 1st time in 2005 and I called the bank to inquire about the card, charges, to whom ,from whom, and all other info. I asked for a fraud investigation and when it was returned as a nonfraud case I asked them to reinvestigated my fraud claim again and I never got answer.
I kept getting phone calls from the bank And I always told them that my case is under fraud investigation.
My point is that I never had any hard evidence
Or a trail of papers its all their claim against mine.
So my question is how can I defend myself in this case?

My point is that I never had any hard evidence
or a trail of papers its all their claim against mine.
So my question is how can I defend myself in this case?

The things is they have to prove their claim, you don't have to prove yours. Your defense is that you never opened the account that it was a case of fraud. They will have to produce evidence that it was actually you who opened the account.

As I said previously, I cannot see any great advantage in contesting service in many cases. So the OP files a motion to quash service, which is granted. Fine. Now the plaintiff cannot default him on the one service attempt. But, say on the way to the parking lot after winning his motion, the OP gets to his car and the plaintiff's attorney hands him a copy of the summons and complaint. Now he's served. It's hard to see what was gained in contesting service in such a case.


I totally agree. But there is ONE instance where contesting service is worhtwhile and that's where a default judgement was obtained. Most of the time, a default judgement is granted solely because the defendant did not show. The judge does not look at the evidence only the fact that the defendant did not repond to the summons or show for a hearing. In that case, getting the judgement vacated for improper service, at least forces the plaintiff to present proof.

I went there this morning the collecting agency lawyer was present ,it wasn't a good sign I expected a "no show" on their part because the mount I am being sued for is around $1G. The collecting agency lawyer called my name and asked to speak to me outside the court room. She offered to settle without an appearance in front of the judge , I refused upfront and she told me that I have no chance of winning they have my correct SS# my correct DOB and address. I asked her if she has the original cc application signed by me? She checked her stash of papers and said she requested it from the bank and hasn't received it yet.
In front of the judge collecting agency lawyer presented the case and for my surprise asked that the case be adjourned, I told the judge that I refuse that and I want the case over with today. I also added that I can't afford to take another day off from work. The lawyer told the judge that she needs more time to get some documents from the bank. At this point I handed the judge my a copy of my letter of intend to defend and I told him "your Honor she had ample time do that" he took it read it and said "you had your time I going to have to dismiss your case." she protested for for few seconds and then the judge said "this is what I am going to do ,is give the apportunity to presue if you decided to." wich got me little abset.
What is the chances of them presuing the case again?
Thanks

Presue? What it sounds like is the judge dismissed the case WITH prejudice which means the plaintiff can refile if they can get the documentation.

This is not at all unusual. Of course she didn't want to go to court because she knew she couldn't win. Doesn't mean she can't lie to you about it.

Odds are they won't refile, but if they do, it will mean they have the documentation.

It would be of great help to yourself, to get a copy of the FDCPA. Fair Debt collections Act. These are rule that collector must follow and rights that you have. For instance: Not providing you with proof of how the debt originated is a violation of the FDCPA. Also, I would check when the statute of limitations in your case. I think it's 6 yrs. In NY.

felonouschick disagrees: I am a paralegal, work in multiple states. Some do not allow Alternitive Methodds of Service.

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