Just got Served....made it 10 months before getting sued

[alorth]

I thought I'd make it over a year for sure. But I got served yesterday....but get this, I was served IN THE MAIL.

Being sued by Discover. There was a court document attached that said they had not been able to serve me the regular way, so it was approved by the court that they could serve me by mail. I think they never even tried to serve me. I am home all the time as I'm unemployed. Seems like BS. So I wonder how this affects the time to answer? The summons says you have 21 days to answer, and is dated 7/29/11. But I just got it yesterday in the mail (8/20). It also says you have 28 days to answer if served by mail. So does this mean I only have 7 days left to answer? That seems like BS.

Discover is actually doing the suing using some attorneys over in Detroit. I am in West Michigan, about 2 hours away from there.

I have retained an attorney as my wife and I are planning to file 13, but we were trying to build up our state exempt wild-card fund before filing. We have not been very successful at that. Seems we are spending what we make, even without the credit card bills, and with no extravagant purchases. We also still need to pay the atty the balance he requires to file the 13.

So I will speak with the atty tomorrow to finalize the plan going forward. I was hoping we'd have more time before being forced to deal with this stuff, but I guess this means it will all be over quicker.

Lot of anxiety now starting to kick in again.

[DesdemonaB]

HI alorth

Yes being served via the mail is common; it is cheaper then a server processer. To serve you in MI via mail it should have been mailed certified and most likely had a return receipt. Proof of service must be a signature, did you sign for the letter?

If you signed then your 28 days starts from the date of that signature not the date of the summons and complaint, the 7/29/2011 date most likely was the date the summons was signed by the clerk.

You will have to answer the summons or a default judgment will be entered, good luck with the BK lawyer tomorrow.

[treehugger1]

The following is from Michigan's Civil Rules of Procedure. I don't know how up-to-date this is. MI does allow substituted service for non-residents that does not require a return receipt. This does not appear to be your case. As asked by the last poster, "Did you sign for this mail?" Note the case law cited at the end of this post.

Rule 2.105 Process; Manner of service

Individuals.

Process may be served on a resident or nonresident individual by,
•delivering a summons and a copy of the complaint to the defendant personally; or
•sending a summons and a copy of the complaint by registered or certified mail, return receipt requested, and delivery restricted to the addressee. Service is made when the defendant acknowledges receipt of the mail. A copy of the return receipt signed by the defendant must be attached to proof showing service under subrule (A)(2).
Individuals; Substituted Service.

Service of process may be made
•on a nonresident individual, by
1.serving a summons and a copy of the complaint in Michigan on an agent, employee, representative, sales representative, or servant of the defendant, and
2.sending a summons and a copy of the complaint by registered mail addressed to the defendant at his or her last know address;
•on a minor, by serving a summons and a copy of the complaint on a person having care and control of the minor and with whom he or she resides;
•on a defendant for whom a guardian or conservator has been appointed and is acting, by serving a summons and a copy of the complaint on the guardian or conservator;
•on an individual doing business under an assumed name, by
1.serving a summons and copy of the complaint on the person in charge of an office or business establishment of the individual, and
2.sending a summons and a copy of the complaint by registered mail addressed to the individual at his or her usual residence or last known address.


Case Notes:
•As a matter of public policy, courts want to avoid overuse of substitute service and default judgment it can cause. Sechler v. Van Hoey, 83 Mich.App. 252, 268 N.W.2d 364 (1978).
•A truly diligent search for an absentee defendant is absolutely necessary to supply a fair foundation for and legitimacy to ordering of substituted service. Kreuger v. Williams, 300 N.W.2d 910 (Mich. 1981); appeal dismissed 101 S.Ct. 3102, 452 U.S. 956.

[ttg1]

I'm a strong believer that if you know you are going to file BK soon you can safely ignore a default judgment. People think "court judgment" and freak but a default judgment is not the same as a judgment that has been decided on the merits of the case. Since you already have an attorney, let him worry about it and drop your stress levels

[LadyInTheRed]

I'm a strong believer that if you know you are going to file BK soon you can safely ignore a default judgment. People think "court judgment" and freak but a default judgment is not the same as a judgment that has been decided on the merits of the case. Since you already have an attorney, let him worry about it and drop your stress levels

It is true that getting a judgment before filing BK is no reason to freak out. But, nobody should ignore a default judgment. The difference between a default judgment and a regular judgment is that it is easier to get a default judgment vacated or set aside within a certain amount of time after it is entered if you can convince the judge you had a good reason to not respond to the complaint. Other than that, it has the same effect as any other judgment. If a default judgment (or any other judgment) is entered before BK is filed, you should get that judgment vacated after the debit is discharged in BK. That won't automatically happen if you ignore it.

The reason people recommend filing an answer to avoid a default judgment is to buy the debtor more time before a judgment is entered. The debtor may decide it's not worth it to file an answer and allow the default to be entered. But, the debtor should not ignore the default judgment because it will add some pressure to file the BK before the creditor starts trying to collect.

[alorth]

HI alorth

Yes being served via the mail is common; it is cheaper then a server processer. To serve you in MI via mail it should have been mailed certified and most likely had a return receipt. Proof of service must be a signature, did you sign for the letter?

If you signed then your 28 days starts from the date of that signature not the date of the summons and complaint, the 7/29/2011 date most likely was the date the summons was signed by the clerk.

You will have to answer the summons or a default judgment will be entered, good luck with the BK lawyer tomorrow.

There was no return receipt on the envelope....it just came yesterday in with the regular mail.

It seems odd.

They also attached a copy of a Discover statement with the paperwork, along with the summons....I am guessing they did that to try and dissuade me from asking for a debt validation.

[DesdemonaB]

There was no return receipt on the envelope....it just came yesterday in with the regular mail.

It seems odd.

They also attached a copy of a Discover statement with the paperwork, along with the summons....I am guessing they did that to try and dissuade me from asking for a debt validation.

There was no certified receipt? No certified mail envelope? No bar code receipt? The mail person did not hand it to you it was just in your mailbox?

It's a Summons and Complaint from a district court in the State of Michigan? With a Case No. in the upper right corner?

On the back of a State of Michigan Summons and Complaint is a section called Certificate/ Affidavit of Service / Non service. There are check boxes for the process server that must be checked regarding the service of the Summons:

1. I served personally a copy of the summons and complaint
2. I served by registered or certified mail (copy of return receipt attached) a copy of the summons and complaint, together with... (space to write in what was in the envelope).

To the process server it says "You must make and file your return with the court clerk"

I know that in the State of Michigan it has to be signed, Citi tried to serve me via certified mail, I just left the card in my mailbox and my mail person told me that I had to pick-up the letter at the post office after the first attempt. If I would have picked it up, I would have been required to sign for it and I would have been served right here in the Post Office.

IF you truly did not sign anything, and no certified mail envelope (it would have a bar code) then you need to tell this to your lawyer tomorrow as it sounds like you were not served correctly per the Summons and Complaint.

Yes the copy of the statement is debt validation, on the typed complaint somewhere it say the defendant (s) entered into a credit card agreement with the plaintiff on (insert the date you open/activated the account) the statement is there to show your name, address, account number and the amount due at the time of filing.

Debt validation should be done on the first collection agency within the first 30 days of them contacting you. Or if the debt is nearing the SOL date or if has been past through multiple CAs. Unless the card was open in fraud, which you would know with in 60 to 120 days, trying to do a DV with the original creditor just buys you 30 days before they can contact you again.

So my question to the experts are: You can't just answer the Summons because your defense is that you did not receive it (not properly served) - there is no court date till you answer the Summons so you can't just show up at court because your defense is you did not receive the Summons - do you have to force a judgment then have it vacated due to improper serving?

[alorth]

Correct Des....it was NOT certified. Did not have to sign a thing.

The return address on the envelope is Tri-County Court Services out of St. John's, MI. I am guessing that's a company that does process serving? But they're quite a ways away from here.

The front page is an "Order for Alternate Service", dated 7/27/11.

On it it says:

The Court Finds:

1. Service of process upon defendant "John Doe" cannot reasonably be made as provided in MCR 2.105, and service of process may be made in a manner which is reasonably calculated to give defendant actual notice of the proceedings and an opportunity to be heard.

It Is Ordered:

2. Service of the summons and complaint and a copy of this order may be made by the following method(s):

a. First class mail to certificate of mailing "John Doe's address"....then is HANDWRITTEN "AND"

b. Tacking or Firmly affixing to the door at "John Doe's address" ------ THIS NEVER HAPPENED.

c. doesn't apply, not checked

d. other, not checked

3. For each method used, proof of service must be filed promptly with the court.


Then its dated 7/27/11 and stamped by a Judge.

[alorth]

something else I found out.....

From an Illinois Legal Aid webpage (don't know if it would apply in Michigan)....To stop a default judgement from being issued in a case where you were improperly served:

You’d have to show up at the scheduled court date and say you’re making “a special and limited appearance.” That’s a legal device that only lets you object to service of the summons. If you don’t say the magic words, or if you do anything more than object to service, you’re considered to have given up your objections, so that the case can proceed against you.

But even if you do it right, and your objections to improper service are sustained, you could be properly served while leaving the courthouse.

[DesdemonaB]

Hi

Just a quick Google search brought up the form, and there is a second page proof of service that must be filed with the court. What it sounds like is the process server tried to serve but failed to do so in 91 days. They attempted by either in person or certified mail MCR 2.105 so they petition the court to process via Order for Alternate Service in which they can mail it via first class mail, tacking or firmly affixing to door of (fill in the blank) delivered to anyone who happens to open the door of your household or other (which could be work, street, court, supermarket).

The first class mail might be your undoing, on the proof of service page there is nothing that states it needs to be certified, there is no required signature needed. As long as the first class mail piece is NOT return to the process service address - you know those yellow stickers (moved no forwarding address, forwarding service expired etc.) there is their proof of service.

So it sounds as thou you have been served via Alternate Service - you have 28 days from the postmark on the envelope to answer the Summons. But please speak to your lawyer first.

[DesdemonaB]

something else I found out.....

From an Illinois Legal Aid webpage (don't know if it would apply in Michigan)....To stop a default judgement from being issued in a case where you were improperly served:

You’d have to show up at the scheduled court date and say you’re making “a special and limited appearance.” That’s a legal device that only lets you object to service of the summons. If you don’t say the magic words, or if you do anything more than object to service, you’re considered to have given up your objections, so that the case can proceed against you.

But even if you do it right, and your objections to improper service are sustained, you could be properly served while leaving the courthouse.

This one I have no clue; this is what you need to talk to your lawyer about, sorry best of luck with everything.

[ttg1]

I stand by my comment that I think he should just ignore the summons and file BK like he was planning. As for the technical form of the summons here is what is going to happen.

Defendant: Judge, the summons didn't meet the legal requirements for an effective summons because it wasn't X.
Judge: But did you actually get the summons?
Defendant: Yes, but...
Judge: Constructive notice, bye.

Unless there was some type of major flaw such the the wrong person's name or mailed to the wrong address, judges are not normally sympathetic to technical mumbo jumbo. They have to much on their plates and don't want to hear you whine and complain. Was the summons in your name? yes. Did you actually physically posses it? yes. case closed.

[oicu812]

this is what happened to me in Texas
I got sued,the paper was served and left at our doorstep,because wife will not open door.I filed a answer for the lawsuit,found a draft here http://www.creditinfocenter.com/lega...een-sued.shtml

and I recieved a court date for a pre-trial conferance,it was 60 days from when I filed a answer.I already decided to file bk and have a lawyer for BK.but I did not use him for this.
in the meantime I was stressed out because of a judgment and in my state of Texas a bank levy can be issued.so more stress there.because I needed 1 more month before I can file bk.

I went to court for the pretrial conferance and it was really no big deal.no motion for summary judgment or anything like that. they reset my case for 60 days for mediation then 90 days trial if no agreement could be reached.so plenty of time left for me to file.

so if you need time file a answer.because the wheels of justice move very slow!
bk will take care of the judgment.

[alorth]

So I called the court today. They do NOT show that service has been officially made in their records. Whatever. Guess it doesn't matter, because they do show the case, and the guy said you will be served, its only a matter of time.

Then I called my lawyer and made an appt. to start the 13 filing process next week. Might as well get the ball rolling.

The one thing giving me pause is I paid the guy $500 already....which was supposed to be towards the BK fee of like $1850....and he was gonna put the other $1800 in the plan. But then he starts saying that the $500 was for the initial consultation, and we need to bring the whole $1850. Then he said, "if you can bring more than that, I'd appreciate it"!

Its not like I have Thousands just sitting around! I don't know what this guy is thinking. Its like a huge Red Flag all of a sudden.

I said, no the $500 was a deposit towards the $1850, and we can't afford to pay more than that. He came around to agreeing, but sounded disappointed.

What the heck?

[ttg1]

What the heck?

Lawyers are people. So now your choice is to walk away from the $500 and find a better lawyer or go on with this guy. Given that you're broke, I understand that's a tough call. But do you really want your lawyer working on your case the whole time he's thinking--rightly or wrongly--that he's not getting paid enough. I wouldn't. If he's going mess around upfront, where else is he going to mess around. His behavior is not confidence inspiring.