[wz83k]

I live in Michigan and have received a summons for an old credit card debt.

I received summons in the mail (not certified) and it says that I have 28 days to respond. I was confused about when the 28 days began because the summons was issued about a 2 weeks before I got it. I called a local lawyer and they told me to call the court where the papers where filed and find out the proof of service date and that I have 28 days from that date to enter my response.
I called the district court and a proof of service date had not been received by the process server. I called again today almost two weeks after receiving the summons and a proof of service date still has not been received.

Here's are my questions:
If they don't file a proof of service date is the summons then nullified (once it expires in 26 days)?
Was the local lawyer correct that it is from the proof of service date that I have 28 days to respond?

There was also an "Order for Alternate Service" paper in with the summons, but it was checked that it was "Tacked or affixed to the door at...my address" AND there was a check next to "First class mail" but it wasn't tacked to the door it came in the regular mail... does this make a difference?

Thanks for any input!

[twinkiedooter]

Regardless of how you got served - ANSWER IT before you get a default entered!

[progunr]

Yes. Answer it.

If you don't at least answer, deny the debt, and ask for a hearing to be set, you could end up with a judgment by default.

Does the answer go to the court, or to the attorney?

If to the attorney, in your answer, deny the debt and request validation and a hearing.

Either way, send it certified mail, return receipt requested so you can prove you answered within the allowed time limit.

[wz83k]

Thanks for your answers, but I'm not sure if I was clear. I called the district court and their records show that I have not been served. As far as they know they process server or the attorney still have the papers. I did not identify myself when I called, I just gave the clerk the case number and asked if there was a proof of service date. She sounded like she thought I was calling from the atty. Office, because she told me to contact my process server.
My thinking is... why do I respond if they don't have know that I have the papers? Or am I missing something?

[Fr_Chuck]

The process server may turn his files in next week, If it is served, answer it, you are getting good advice. In court you can challenge if it was served legal or not, but by doing nothing they win for sure

[JudyKayTee]

Thanks for your answers, but I'm not sure if I was clear. I called the district court and their records show that I have not been served. As far as they know they process server or the attorney still have the papers. I did not identify myself when I called, I just gave the clerk the case number and asked if there was a proof of service date. She sounded like she thought I was calling from the atty. office, because she told me to contact my process server.
My thinking is...why do I respond if they don't have know that I have the papers? Or am I missing something??

No, their records DON'T say you have not been served. Their records say the Affidavit of Service has not been filed. These are two VERY different things.

The process is - papers are served and the process server has X number of days (usually between 10 and 20) to file the Affidavit of Service with the Court. If the Affidavit is not timely filed the papers must be re-served.

And, yes, I would consider myself served and answer the papers. The process server does exactly that as a profession - serves papers. Not saying he/she couldn't make a mistake but, if so, it would be a costly mistake because you would have to be served a second time - free. I would simply assume, because you actually have the papers and have acknowledged to the Attorney that you have them, that it is good service, just not yet filed with the Court.

It is also your responsibility to identify yourself when you call the Court and not let the Court "assume" you are from an Attorney's office - could get you in trouble. Yes, they should ask but you should also have identified yourself. In this case it's no big deal.

Your time to respond begins running on the date you are served, not the date the papers are filed (but you already know that).

[ScottGem]

Are you really going to risk a default judgement entered against you by trying to fudge this service issue? You recevied the summons, end of story. Protect yourself by filing your Intent to Defend immediately.

[wz83k]

No, their records DON'T say you have not been served. Their records say the Affidavit of Service has not been filed. These are two VERY different things.

The process is - papers are served and the process server has X number of days (usually between 10 and 20) to file the Affidavit of Service with the Court. If the Affidavit is not timely filed the papers must be re-served.

And, yes, I would consider myself served and answer the papers. The process server does exactly that as a profession - serves papers. Not saying he/she couldn't make a mistake but, if so, it would be a costly mistake because you would have to be served a second time - free. I would simply assume, because you actually have the papers and have acknowledged to the Attorney that you have them, that it is good service, just not yet filed with the Court.
It is also your responsibility to identify yourself when you call the Court and not let the Court "assume" you are from an Attorney's office - could get you in trouble. Yes, they should ask but you should also have identified yourself. In this case it's no big deal.

Your time to respond begins running on the date you are served, not the date the papers are filed (but you already know that).

Thank you for the response. A couple of follow up questions:
I made no acknowledgement to their attorney that I have received the papers. I called a local atty for advice. Therefore, their atty and the courts both don't know that I have the papers. Isn't that correct? When I called the court I simply stated the case number and when she said that there is no proof of service date, I asked if they had records that the papers had been served, she said she has no record of them being served since she has no proof of service date.
I don't mean to be argumentative, but to me it seems silly to answer papers that no one knows that I have. I am hoping that they will expire. The summons was issued on 6/28/08 and expires on 8/26/08, I received the papers on 7/18/08 (according to the post office stamp), It has been two weeks since the papers were mailed and process server has not filed their information. How do I find out how much time they have?

[ScottGem]

It seems silly to risk a default judgement in the hope that this will go away. The only time that proof of service becomes an issue is if a default judgement is entered and action is taken on that judgement to the surprise of the debtor.

If you don't respond, what will happen if the plaintiff will go the court and ask for a default judgement because of non response. The judge (if he even bothers) might ask if the summons was served and the plaintif will state it was. The judge won't ask for proof but just approve the default judgement.

After they get a wage garnishment or attach your back account, you MIGHT be able to get the judgement vacated on the grounds of improper service. But at that point, they will just reserve and you will have no excuse.

You are trying to bury your head in the sand hoping this will go away. And that IS silly. It won't go away so your are better off dealing with it now, rather than after they seize your assets.

[progunr]

Thank you for the response. A couple of follow up questions:
I made no acknowledgement to their attorney that I have received the papers. I called a local atty for advice. Therefore, their atty and the courts both don't know that I have the papers. Isn't that correct? When I called the court I simply stated the case number and when she said that there is no proof of service date, I asked if they had records that the papers had been served, she said she has no record of them being served since she has no proof of service date.
I don't mean to be argumentative, but to me it seems silly to answer papers that no one knows that I have. I am hoping that they will expire. The summons was issued on 6/28/08 and expires on 8/26/08, I received the papers on 7/18/08 (according to the post office stamp), It has been two weeks since the papers were mailed and process server has not filed their information. How do I find out how much time they have?

Why did you come here for advise?

You have been given EXCELLENT advice, intended to prevent you from further harm in this situation.

If you had no intentions of actually listening to the advice, why even bother asking?

Go ahead, ignore the papers you have been served, but don't come back here crying about the judgment
When it is placed against you for default.

As to the proof of service, the process server could turn that in the day before your court date.
As long as the proof is in the file when it gets handed to the judge, the service is legal.

[wz83k]

Why did you come here for advise?

You have been given EXCELLENT advice, intended to prevent you from further harm in this situation.

If you had no intentions of actually listening to the advice, why even bother asking?

Go ahead, ignore the papers you have been served, but don't come back here crying about the judgment
when it is placed against you for default.

As to the proof of service, the process server could turn that in the day before your court date.
As long as the proof is in the file when it gets handed to the judge, the service is legal.

I don't know who you are that you think I am not going to listen to the advice given to me. I am simply asking questions and trying to understand the process. I fully intend on responding to summons. Do I not have the right to ask questions and clarify myself? There is no reason for you to be rude. I was asking the people for their opinion about possibly finding a way out of my situation due to the dates. I now see that the dates are not as important as I thought. If you read my responses, no where do I state that I am going to "ignore the the papers" and "come back here crying". I am aware of the rest of the process, I was just asking for information regarding the dates and proof of service.

[ScottGem]

I think what progunr is saying is that you already got the answers, but you seem to not accept them.

The service issue is just a technicality. At best it just gets you a new hearing. But AFTER they get an execute a judgement.

[progunr]

I don't mean to be argumentative, but to me it seems silly to answer papers that no one knows that I have. I am hoping that they will expire.

I'm not here to argue with you, and I don't intend to be rude, just blunt.

It was this part of your post that solicited my reply.

I'm glad you are not going to ignore the papers you have been served.

Good luck.

[JudyKayTee]

Thank you for the response. A couple of follow up questions:
I made no acknowledgement to their attorney that I have received the papers. I called a local atty for advice. Therefore, their atty and the courts both don't know that I have the papers. Isn't that correct? When I called the court I simply stated the case number and when she said that there is no proof of service date, I asked if they had records that the papers had been served, she said she has no record of them being served since she has no proof of service date.
I don't mean to be argumentative, but to me it seems silly to answer papers that no one knows that I have. I am hoping that they will expire. The summons was issued on 6/28/08 and expires on 8/26/08, I received the papers on 7/18/08 (according to the post office stamp), It has been two weeks since the papers were mailed and process server has not filed their information. How do I find out how much time they have?

If you think the whole think is silly, you were not properly served, then you have the option of not answering the papers.

Here's Michigan Law: "Failure to File. Failure to file proof of service does not affect the validity of the service."

So you are served. If you can prove you are not served (after reading what I posted previously) then that will be your defense to the Judgment they will obtain against you.

You are ignoring reality if you think that the expiration of the papers will mean the end of the action, the end of your responsibility to pay the debt.

[twinkiedooter]

I forgot about the Clerk's office mailing you a copy. You're served period.

[ScottGem]

Comments on this post
wz83k agrees: Does not answer any of the questions asked asked about proof of service

That's because the issue is moot. You are not going to get out of this by avoiding service.