[Merlin123]

I am contesting the validity of substitute service in NY on grounds of "carelessness of service" as per the strict provisions of CPLR 308 in NY. In addition, I never received the MAILED summons, properly marked PERSONAL AND CONFIDENTIAL, as claimed by the process server. I understand that the plaintiff must prove service by a preponderance of evidence during the Traverse Hearing which I requested.

What constitutes proof of "mailing" for the plaintiff? I thought perhaps that ith these documents, a return receipt should be required. Can the plaintiff simply assert in their Affidavit of Service that the copy of the Summons was mailed to me without proof that I received it?

[twinkiedooter]

How do you know about the Summons in the first place?

[Fr_Chuck]

The post office has proof of delivery without it being signed, you can get tracking to show it was delivered.

[Merlin123]

How do you know about the Summons in the first place?

I am not denying receipt of summons. I am contesting the validity of service. There is such a thing as "the right to be properly served". It is important that one goes through the steps properly - before arguing the facts of the case. Why should I just step aside and make it easy for the plaintiff.

I read that once a defendant challenges service under the pertinent provisions of CPLR, by a denial of service, the process server's affidavit of service is deemed rebutted, and the plaintiff must prove personal delivery by a PREPONDERANCE of the evidence at a hearing.

My question is - does anyone know if a process server can simply claim that he mailed me a copy of the summons, in addition to substitute service, without showing any proof of mailing or delivery? I saw the records filed with the county clerk. While the Affidavit of Service is there, I did not see proof of mailing like a certified mail receipt or a return return receipt.

[Merlin123]

The post office has proof of delivery without it being signed, you can get tracking to show it was delivered.

There is also such a thing by the way as _ "careless service". Process servers must show that they made an honest effort (due diligence) to serve you personally. To just carelessly leave the summons to anyone in one's home, without making an honest effort to personally serve the defendant is not acceptable, especially if the defendant is not running away from service.

HOw do I get a tracking of the mail or delivery when no proof of it was in the record at the clerk's office?

[Fr_Chuck]

A process server often swears to many things, they may claim they handed you a copy and it will be up to you to show you were not home on that date and time, Normally they will believe the process server unless there is proof not to. The person who sent it, would have that record if there was one,

Also please understand we agree this is the way to go, the only chance to dely the case till it is served again. It will not stop the case of course.
But proof of service is one of the few challeges one has in these cases.

[twinkiedooter]

Since you somehow received the Summons, I would strongly suggest that either you answer it or file your motion quickly so you do not have a Default Judgment entered in this case against you. You are just delaying the enivatable in any event on a technicality that will more than likely not make much of a difference in the validity of the case, just how you were served. It's like you're winning one small battle but still have the rest of the war to contend with. As you put it you don't want to make it easy for the Plaintiff, you are just being petty as you somehow received the Summons and Complaint anyway. It would have been different had you not received anything at all.

JudyKayTee should come along and answer you question as she would be the in house expert on such matters.

[Merlin123]

Since you somehow received the Summons, I would strongly suggest that either you answer it or file your motion quickly so you do not have a Default Judgment entered in this case against you. You are just delaying the enivatable in any event on a technicality that will more than likely not make much of a difference in the validity of the case, just how you were served. It's like you're winning one small battle but still have the rest of the war to contend with. As you put it you don't want to make it easy for the Plaintiff, you are just being petty as you somehow received the Summons and Complaint anyway. It would have been different had you not received anything at all.

JudyKayTee should come along and answer you question as she would be the in house expert on such matters.

I already served the plaintiff with my Answer to Summons, and filed it with the clerk - dated and everything. I think I am safe from any Default Judgements for now.

Many of these debt collectors are paper pushers. To begin by challenging proper service serves notice to the plaintiffs that they better be legit. Some of these Law Firms are not even retained by the creditors, and as such they have to show proof. I am expecting a conference with the plaintiff after my Traverse hearing, and there I will cut a deal.

Just a note - when you challenge the debt they are collectiing - the burden is on the plaintiff to show that you owe them what they are asking for - to the penny.The defendant does not have to prove that he owes the money. The defendant can demand contracts, account details, authorizations, etc - and the plaintiff must produce proof. They will most likely not be able to account for everything, so the judge will encourage both parties to settle.

And I will - after this Law Firm shows a contract that CApital One retained them, and that they are authorized to collect for Capital One.

[twinkiedooter]

I used to do the Complaints for a collections attorney (sometimes) down in Florida when I worked for a criminal attorney in the same office. I would prepare about two dozen or so with accompanying Summons for him. He would take them to the courthouse and file them all at once so he could be sure to have the hearings scheduled for the same day. It was strictly boiler plate stuff that I would be filling in the names, amounts owed, etc. etc.

When someone like you comes along and throws a monkey wrench into the attorney's well planned out game, then they'll have to do a bit of work. You've essentially bought yourself some time to work with. If he wants his money, he'll be sure to validate the debt or he goes back to square one looking for another yacht payment.

[Merlin123]

I used to do the Complaints for a collections attorney (sometimes) down in Florida when I worked for a criminal attorney in the same office. I would prepare about two dozen or so with accompanying Summons for him. He would take them to the courthouse and file them all at once so he could be sure to have the hearings scheduled for the same day. It was strictly boiler plate stuff that I would be filling in the names, amounts owed, etc. etc.

When someone like you comes along and throws a monkey wrench into the attorney's well planned out game, then they'll have to do a bit of work. You've essentially bought yourself some time to work with. If he wants his money, he'll be sure to validate the debt or he goes back to square one looking for another yacht payment.

Yes, you are absolutely correct. They are boiler plate collectors!

Mine is an unfortunate case. CapOne sent me a new card I never applied for, which I thought replaced the one I already have. I entered the new card info on my PC, and started using it, paying it, etc - I cut the other card and deleted it from my PC. I get no "paper bills" as that's what I prefer. Months later I discovered the fiasco, and I called CapOne. I was furious as I never applied for another card. And now the other card is delinquent, and I lost track of it - balance, charges etc. I tried my best to set it straight with CapOne over a dozen times but nothing happened because I was talking to a person in India or Bangladesh I think - maybe all the way in Nepal!

And then the collectors started calling. I was really upset over this! They didn't have to do this, but they did. So now - I will fight them tooth and nail for every penny. I am not denying I owe, but now - they need to show me to the penny how much I really owe. I understand that in court - the burden is on the plaintiff to prove that the defendant owe the money - to the penny.

That's if this Law Firm even has legal standing to collect for CapOne. They will have to produce a contract showing they are retained by CapOne (The Fair Debt Collection Act requires this). Only after then can we even proceed with the facts. Im going to follow the steps. I may not be a lawyer, but I can follow written procedures.

[twinkiedooter]

I am sure that they will be able to produce that contract. Law firms just don't represent any company they have no signed contract to in fact represent them.

I would have never opted to not receive paper bills in the mail, especially credit card bills.

[ScottGem]

I think you are being a bit quixotic here. I have no doubt that service was handled carelessly. But this only becomes a real issue if they obtain a default judgement because you were not served properly.

A judge is not going to look kindly on nitpicking. The fact is that you were made aware of the suit with enough time to respond and get a hearing. The judge is not going to care about very much more than that (even if there are stringent rules).

Yes you should be demanding verification of the debt and not doing anything more until its provided. But don't try to go too far in getting the letter of the law enforced.

[JudyKayTee]

I already served the plaintiff with my Answer to Summons, and filed it with the clerk - dated and everything. I think I am safe from any Default Judgements for now.

Many of these debt collectors are paper pushers. To begin by challenging proper service serves notice to the plaintiffs that they better be legit. Some of these Law Firms are not even retained by the creditors, and as such they have to show proof. I am expecting a conference with the plaintiff after my Traverse hearing, and there I will cut a deal.

Just a note - when you challenge the debt they are collectiing - the burden is on the plaintiff to show that you owe them what they are asking for - to the penny.The defendant does not have to prove that he owes the money. The defendant can demand contracts, account details, authorizations, etc - and the plaintiff must produce proof. They will most likely not be able to account for everything, so the judge will encourage both parties to settle.

And I will - after this Law Firm shows a contract that CApital One retained them, and that they are authorized to collect for Capital One.

First, I am in NYS, too.

I'm a little bit lost here why you think "some of these law firms are not even retained by the creditors." Without such a retainer the law firm has absolutely no interest in your debt - why would a law firm spend the time and money to collect from you without legal standing to do so? If you want to make them earn their money, that's no problem, but they've heard the argument before, they'll hear it again, they are familiar with the questions and have the answers.

The Defendant can pretty much demand anything he/she wants - it is up to the Judge to determine what is necessary. I am not familiar with the "not be able to account for everything so the judge will encourage both parties to settle" defense. These collection matters are quick moving, by the book, routine for the Court. The Judge will grant a monetary judgment based on the proof - you don't need authorizations, contracts and itemizations in order to prove a debt. In most cases one or the other is sufficient.

I think your various attempts to put the Attorneys through their paces are simply going to aggravate the Judge (who deals with these Attorneys and servers all the time; you are a stranger, not trained in the law) but perhaps things are different in your part of the State.

As far as service of process - the server is required (by law) to make three good attempts (different times of day) and document them before posting (nail and mail). The process server completes a sworn Affidavit of Service listing all of the attempts and mails the summons within days to the same address where the summons was served. The mailed copy must (as you said) must be marked PERSONAL AND CONFIDENTIAL and not give any indication that it involves a debt or that it's from a law firm, although the server may use the law firm's address as the return address. There is no return receipt because (obviously) now that the creditor has received notice of the action he/she would refuse to sign or otherwise acknowledge the mailed copy.

Mail not returned (keep in mind the process server has submitted a sworn Affidavit of mailing) is considered delivered.

I don't know how you will fare in Court - I own a process service company and I have NEVER lost a Court challenge. My servers back up what they do in various ways. It would simply be stupid and destructive to my reputation for my company to fake a service, misrepresent a service, be embarrassed in Court. I, of course, cannot speak for the company that served you.

Obviously if you do get service set aside you will argue bad service, you will be served again (most probably in the Courtroom at that time) and then you will all get to go back to Court again.

Incidentally, I serve process for law firms that represent credit card companies so perhaps - depending on your area of the State - we'll meet in Court!


EDIT - I just noticed you were sub served, not nail and mailed. Procedure still the same - service on responsible party followed by mailing within time frame, Affidavit completed and filed.

Again, I've never lost one of these.

Sorry - I misread your first post.

[Merlin123]

My answers in caps.

First, I am in NYS, too.

I'm a little bit lost here why you think "some of these law firms are not even retained by the creditors." Without such a retainer the law firm has absolutely no interest in your debt - why would a law firm spend the time and money to collect from you without legal standing to do so?

I HAVE SEEN CASE LAWS IN THE LAW LIBRARY WHERE THE JUDGE DID NOT ALLOW ARGUMENT OF FACTS UNTIL "LEGAL STANDING" IS ESTABLISHED. ITS THE FIRST LOGICAL STEP AFTER ESTABLISHING JURISDICTION. WHEN A FIRM OR AN ENTITY IS COLLECTING MONEY FROM A DEBTOR, HE MUST FIRST ESTABLISH THAT HE IS THE DEBT COLLECTOR OF CHOICE RETAINED BY THE ORIGINAL CREDITOR. THIS IS A PROTECTED RIGHT UNDER THE FAIR DEBT COLLECTION PRACTICES ACT (FDCPA). AND THE REASON WHY THIS IS IMPORTANT IS - TO ESTABLISH THE FACT THAT THE ATTORNEY REPRESENTING THE PLAINTIFF IS SUBJECT TO THE RULES OF BOTH CPLR AND THE FDCPA.

If you want to make them earn their money, that's no problem, but they've heard the argument before, they'll hear it again, they are familiar with the questions and have the answers.

IF YOU READ SOME OF THE CASE LAWS THAT APPLY TO DEBT DISPUTES - YOU WILL BE SURPRISED AT SOME OF THE THINGS THAT THE PLAINTIFF'S ATTORNEYS DO THAT ARE NOT ALLOWED IN COURT, RESULTING IN THE JUDGE DECIDING IN FAVOR OF THE DEFENDANT.


The Defendant can pretty much demand anything he/she wants - it is up to the Judge to determine what is necessary. I am not familiar with the "not be able to account for everything so the judge will encourage both parties to settle" defense. These collection matters are quick moving, by the book, routine for the Court. The Judge will grant a monetary judgment based on the proof - you don't need authorizations, contracts and itemizations in order to prove a debt. In most cases one or the other is sufficient.

DEBT VALIDATION IS ANOTHER PROTECTED RIGHT UNDER BOTH CPLR AND FDCPA. IF A DEBT COLLECTOR SAYS TO A DEBTOR - YOU OWE $5K, PAY UP. DOES THE DEBTOR SIMPLY WRITE THE COLLECTOR A CHECK FOR $5K? WHEN YOU EAT AT A RESTAURANT AND THE BILL COMES - YOU KNOW YOU OWE MONEY BECAUSE YOU ATE THE FOOD YOU WERE SERVED AFTER ALL, BUT DO YOU JUST WHIP OUT YOUR MONEY AND PAY THE BILL WITHOUT CHECKING WHAT THEY ARE CHARGING YOU FOR?

I think your various attempts to put the Attorneys through their paces are simply going to aggravate the Judge (who deals with these Attorneys and servers all the time; you are a stranger, not trained in the law) but perhaps things are different in your part of the State.

TO THE CONTRARY - JUDGES AND THEIR LAW CLERKS ARE VERY CONSIDERATE OF PRO SE REPRESENTATIONS AND ARE VERY ACCOMODATING WHEN IT COMES TO CLARIFYING THE LAW.

As far as service of process - the server is required (by law) to make three good attempts (different times of day) and document them before posting (nail and mail). The process server completes a sworn Affidavit of Service listing all of the attempts and mails the summons within days to the same address where the summons was served. The mailed copy must (as you said) must be marked PERSONAL AND CONFIDENTIAL and not give any indication that it involves a debt or that it's from a law firm, although the server may use the law firm's address as the return address. There is no return receipt because (obviously) now that the creditor has received notice of the action he/she would refuse to sign or otherwise acknowledge the mailed copy.

Mail not returned (keep in mind the process server has submitted a sworn Affidavit of mailing) is considered delivered.

I don't know how you will fare in Court - I own a process service company and I have NEVER lost a Court challenge. My servers back up what they do in various ways. It would simply be stupid and destructive to my reputation for my company to fake a service, misrepresent a service, be embarrassed in Court. I, of course, cannot speak for the company that served you.

Obviously if you do get service set aside you will argue bad service, you will be served again (most probably in the Courtroom at that time) and then you will all get to go back to Court again.

Incidentally, I serve process for law firms that represent credit card companies so perhaps - depending on your area of the State - we'll meet in Court!


EDIT - I just noticed you were sub served, not nail and mailed. Procedure still the same - service on responsible party followed by mailing within time frame, Affidavit completed and filed.

Again, I've never lost one of these.

Sorry - I misread your first post.

Thanks for your comments judykaytee. I really appreciate them.

[ScottGem]

Almost all of your comments to Judy are very accurate. If you read some of the threads in this, the Credit and Small Claims forums, you will find several of us have made those same points repeatedly. It is SOP to advise the OPs to ask for verification of the debt.

But that's NOT what your original question was about. It was about proper service. And that's just a technical issue that is pretty much moot. If you do prove improper service, the likelihood is that the judge will tell the process server to be more thorough in the future and you get handed a summons as you walk out the court for a new hearing. All pleading imporper service will do is delay the inevitable.

As for courts being considerate of pro se representation, I agree to a point. As long as the defendant keeps things simple. But as soon as the defendant starts to get overly technical and nitpicky, they will try the patience of the court.

[JudyKayTee]

But that's NOT what your original question was about. It was about proper service. And that's just a technical issue that is pretty much moot. In the event that you do prove improper service, the likelihood is that the judge will tell the process server to be more thorough in the future and you get handed a summons as you walk out the court for a new hearing. All pleading imporper service will do is delay the inevitable.
.

I'm only addressing service - the hard part of service is actually handing the papers to someone. The easy part is throwing the summons in the mail. I've certainly seen bad service in my career but I've never seen papers served but not finalized by mailing; I have seen papers not served and mailed.

I can't speak for other process servers but I have a system of checks and balances which proves conclusively to the Court that the papers were mailed - enough said on that subject.

If people spent the time paying their bills that they spend fighting collection the World would be a much happier place.

Perhaps OP will come back when all is said and done and let us know how this played out, the errors in my thinking and experience.

[twinkiedooter]

When I did work for the boiler plate collection attorney there were so many defendants who kept dodging service it got to be a game of Plures Summons being issued every so many days when the original Summons time ran out. They were eventually served and had to go to court and face the music.

Scott and Judy's comments about the Judge not being pleased with nit picking is very correct. You are only one of many debtors to come before him that day and he's probably heard every story a million times and yours will not be unique by any means and whining about poor service is one that has been worn out a loooong time ago.

[Merlin123]

When I did work for the boiler plate collection attorney there were so many defendants who kept dodging service it got to be a game of Plures Summons being issued every so many days when the original Summons time ran out. They were eventually served and had to go to court and face the music.

Scott and Judy's comments about the Judge not being pleased with nit picking is very correct. You are only one of many debtors to come before him that day and he's probably heard every story a million times and yours will not be unique by any means and whining about poor service is one that has been worn out a loooong time ago.

Actually folks, you are all correct. I have drifted a bit from my original question as I got a bit carried away. Im just a bit upset that CapOne let this get this far, when I tried everything to get this verified and settled out of court.

I really am unsure about the accuracy of what they are asking for now. Remember that I was issued a new CC that I never applied for. So I think its just right to ask them to produce an "application" that I SIGNED or a contract>. Absent this documents, then I want to proceed to a reasonable settlement.

My other goal is for CapOne to agree to clear my credit report of their negative entry, if we come to an amicable settlement. I read that only the original creditor can ask the reporting companies to strike that record.

Has anyone here heard if this is correct?

[JudyKayTee]

Actually folks, you are all correct. I have drifted a bit from my original question as I got a bit carried away. Im just a bit upset that CapOne let this get this far, when I tried everything to get this verified and settled out of court.

I really am unsure about the accuracy of what they are asking for now. Remember that I was issued a new CC that I never applied for. So I think its just right to ask them to produce an "application" that I SIGNED or a contract>. Absent this documents, then I want to proceed to a reasonable settlement.

My other goal is for CapOne to agree to clear my credit report of their negative entry, if we come to an amicable settlement. I read that only the original creditor can ask the reporting companies to strike that record.

Has anyone here heard if this is correct?

I would suggest that you post this as a new question, not under the "proof of service" caption.

As far as Capone letting it go this far - they think you owe them money and they want you to pay it. I'm sure that's their side and they think you are taking things too far. They probably wonder why you let it go so far that they had to sue you and that it has to go on your credit report. Seems like hurting yourself to prove a point.

[JudyKayTee]

When I did work for the boiler plate collection attorney there were so many defendants who kept dodging service it got to be a game of Plures Summons being issued every so many days when the original Summons time ran out. They were eventually served and had to go to court and face the music.

Scott and Judy's comments about the Judge not being pleased with nit picking is very correct. You are only one of many debtors to come before him that day and he's probably heard every story a million times and yours will not be unique by any means and whining about poor service is one that has been worn out a loooong time ago.

All out of greenies - BUT I'm in Court probably 15-20 times a year on a claim of bad service. As I've said, I've never lost one BUT I've seen Judges really annoyed by people who research the Internet and get into Court and begin to "quote" the Law to real, live Attorneys. I've seen Plaintiffs embarrassed by Judges (usually along the lines of, "How long have you been practicing law without a license" and/or Judges citing cases or quoting complicated sections of law, asking the Plaintiff for his/her opinion, finishing with, "So do you owe the debt or not"). Usually also takes any chance of a settlement agreement right off the table.

As you said - these are rubber stamp cases and arguments where there is no basis just serve the purpose of making the creditor very difficult to deal with. I think with some of these the Attorneys very vigorously pursue collection Judgments where they might let it ride for a while just because they've spent time (which is money) on nonsense.