Attorney for Citi LIES TO COURT ON CERTIFICATE OF SERVICE, NEED ADVICE

[OHBOY]

Was scheduled for a hearing on 1/24/12 at the local court house about a debt with Citi.
The plaintiffs attorney (debt collector) was to appear via telephone.
I arrived in timely fashion, checked in and waited....ca. 20 minutes past scheduled hearing time I am told that the hearing was canceled and was given a 'NOTICE OF CANCELLATION OF HEARING' in which plaintiffs atorney CERTIFIES that a copy of the 'NOTICE OF CANCELLATION OF HEARING' was furnished to me by U.S. Mail Delivery on 1/23/12 (one day before hearing...),
The whole thingy was signed not by the attorney but by some unknown person.

Today, 1/26/12, I finally recieved same 'NOTICE OF CANCELLATION OF HEARING' in the mail. ***THE POSTAL STAMP ON THE LETTER INDICATES THAT IT WAS MAILED ON 1/25/12, AND NOT AS 'CERTIFIED' ON 1/23/12....*** (It's also noteworthy that even if the darn thingy had been mailed on the 23rd/ THE DAY BEFORE THE HEARING, there would have been no way that I would have recieved in on time...

My opinion is that the case should have been dismissed for a no show on the plaintiffs attorneys behalf.

As I believe the whole thing to stink to high heaven I am seeking your input as to what I can do to protest this false 'Certificate of Service' ???

[tobee43]

i'm still in shock that

The plaintiffs attorney (debt collector) was to appear via telephone.

what would have happened if we asked to do it by phone???

[AngelinaCat]

I would be hugely tempted to file a complaint with the State Bar against the Plaintiff's attorney..... After all, YOUR time is valuable, is it not?

It depends on how angry you want to be.

[OHBOY]

i'm still in shock that what would have happened if we asked to do it by phone???

EXACTLY ! But... actually my question is: What would happen if I send out a 'Certificate of Service' to Plaintiffs attorney SUPPOSENTLY the day before the hearing date letting them know that I am cancelling the hearing...oh, and yes, don't actually send the thingy out until the day after the hearing .....yah, right...does not take too much brainstorming on that scenario....lol

[OHBOY]

I would be hugely tempted to file a complaint with the State Bar against the Plaintiff's attorney..... After all, YOUR time is valuable, is it not?

It depends on how angry you want to be.

Thanks for the input...I LIKE YOUR SUGGESTION !!!!

Do you think there is some way that I can also protest with the court ?

[AngelinaCatHub]

Thanks for the input...I LIKE YOUR SUGGESTION !!!!

Do you think there is some way that I can also protest with the court ?

Yes you can. If you are represented, tell your lawyer to go after them. Motion to dismiss is a very nice idea. 'Hub


EDIT: Throw in Sanctions for good measure.

[OHBOY]

THANKS 'HUB' !!! I am not represented by an attorney, however as I have nothing to lose I WILL definately follow up on all of your suggestions.

[LadyInTheRed]

OHBOY, You can try to petition the court to dismiss the case based on the attorney's no-show and failure to give you adequate notice of the cancellation. You could also try to have the court order the attorney to compensate you for your time or to issue other sanctions against the attorney. Your chance of success depends on a combination of the laws and court rules and how the judge views the attorney's behavior. The person who signed the certificate of service is probably an employee of the attorney. They probably perjured themselves and may have done so at the urging of their boss. It should be brought to the attention of the court and the State Bar. But, you may or may not get any benefit from it. I wish I could help you with the proper procedure to deal with this. An attorney could best advise you. You could also try calling the court and asking for the proper procedure.

i'm still in shock that what would have happened if we asked to do it by phone???

Many courts allow parties to appear by phone. Anyone can do it as long as they follow the procedures set forth in the local court rules.

[justbroke]

These would certainly be Rule 11 violations in most jurisdictions. Rule 11 refers to the generic "Papers, Motions and Sanctions" rules regarding the submission of papers to the Court. Sure, I think the attorney should be sanctioned and perhaps you could request damages. Damages are tough, but if you took the day off from work (even if you took vacation time) you could seek to recover your wages; additionally recover parking, transportation, fuel and other direct costs to attend the hearing.

As for the Certificate of Service being false, that's tough and you'd have to prove it. If you read the Certificate, it (usually) only reads that the person "placed it into the U.S. Mail". That could be an "outgoing mail" box in an office and it may have been "missed". The certificate, in that case, wouldn't be "false" if the person signing the certificate had actually placed it in the mail for delivery.

I don't think it rises to the level where it warrants a dismissal. Since you are in State non-bankruptcy court, I don't know any of their specific procedures. You may be able to file a Motion for Entry of Order to Show Cause and for Sanctions. I think it's tough given the last minute cancellation of the hearing. It would certainly be interesting.

You'd have to see if it's even worth pursuing, but I'd certainly mention it at any other hearing.

[LadyInTheRed]

As for the Certificate of Service being false, that's tough and you'd have to prove it. If you read the Certificate, it (usually) only reads that the person "placed it into the U.S. Mail". That could be an "outgoing mail" box in an office and it may have been "missed". The certificate, in that case, wouldn't be "false" if the person signing the certificate had actually placed it in the mail for delivery.

Good point. In California, the wording usually used for a certificate of service leaves a lot of room to blame somebody else for the postmark being different than stated in the certificate of service. But, in this case, the postmark was 2 days after the date in the certificate. A one day delay I can beleive. But I think two days is suspicious. I judge might think so too.

Even if there is no perjury involved, the amount of notice seems insufficient. I wonder what the court rules require for notice. The rules don't always seem fair.

The question is whether the potential benefit of pushing either issue is worth the trouble. My guess is that a judge would be reluctant to dismiss a case with prejudice based on these issues. If the court would issue sanctions against the attorney, it might be worth the satisfaction. I would pursue it only as a matter of principal and not because I was counting on a dismissal or an award of monetary damages.

[OHBOY]

The NOTICE OF CANCELLATION OF HEARING STATES:
NOTICE OF CANCELLATION OF HEARING
TO: (name)
YOU WILL PLEASE TAKE NOTICE that the Hearing on Plaintiff's Motion for Summary Judgment, previoulsy scheduled for 1/24/2012 has been cancelled until further notice.
PLEASE GOVERN YOURSELF ACCORDINGLY.

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was furnished to (name & address) by U.S. Mail Delivery on 1/23/12. This is a communication from a debt collector.

(typed name of attorney)
signature of unknown person below

[malf1204]

Here in Maryland such a notice must be filed with the court at least 10 days prior to the hearing date or it is automatically denied. Perhaps there is such a rule in FL?

[justbroke]

Oh, I didn't notice that it is Florida!

The Florida Bar Association's view

A lawyer should accede to all reasonable requests for scheduling, rescheduling, cancellations, extensions, and postponements that do not prejudice the client's opportunity for full, fair, and prompt consideration and adjudication of the client's claim or defense.

FBA on Service of Papers... I could argue that filing the day before is 'designed to inconvenience'...

Papers should not be served to take advantage of an opponent's known absence from the office or at a time or in a manner designed to inconvenience an adversary, such as late on Friday afternoon or the day before a secular or religious holiday. A "paper" is any written material that is to be filed with a court or other tribunal.

I think they could have at least called you. Again, perhaps it is worth some sanctions for damages (actual damages) and maybe an admonishment.

[HHM]

Unfortunately, dismissal is not the remedy. Sanctions, maybe, but outright dismissal, not likely.

Keep in mind, courts are loath to dismiss cases in general, and certainly not over technical reasons. Since you are in state court, they tend to be fairly lenient.

[tobee43]

OHBOY, You can try to petition the court to dismiss the case based on the attorney's no-show and failure to give you adequate notice of the cancellation. You could also try to have the court order the attorney to compensate you for your time or to issue other sanctions against the attorney. Your chance of success depends on a combination of the laws and court rules and how the judge views the attorney's behavior. The person who signed the certificate of service is probably an employee of the attorney. They probably perjured themselves and may have done so at the urging of their boss. It should be brought to the attention of the court and the State Bar. But, you may or may not get any benefit from it. I wish I could help you with the proper procedure to deal with this. An attorney could best advise you. You could also try calling the court and asking for the proper procedure.



Many courts allow parties to appear by phone. Anyone can do it as long as they follow the procedures set forth in the local court rules.

i have to laugh lady...i know you never been to jersey!!! maybe many courts allow it, but many don't its just a onesided situation and usually only in favor of the atty's . you have to remember you are in a fairly "fair" and state.