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.

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Originally Posted by JudyKayTee

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.

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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.

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Originally Posted by AK lawyer

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.

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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).

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Originally Posted by cadillac59

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

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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?

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Originally Posted by rentedog

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?

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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.

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Originally Posted by cadillac59

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.

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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.

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

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