Demur, Quash, Answer - Summons for collection of debt that has long run past SOL

[prosewhat]

I received a summons from a debt collector's attorney. They filed in MA in May and delivered a summons earlier this month to my dad (of the same name) at his home more than 100 miles away from me. I'm not sure how they could have made such a mistake. I've lived in a different state for more than a decade with mailing addresses and operators' licenses there. Apparently, in addition to being sent to the wrong person and address the summons was signed by a Sheriff on one date and delivered by a local police officer more than a week later (no idea how that affects the 20 day response period). Lastly, the complaint identifies "a person who resides at" the above mentioned incorrect address.

I was informed of the existence of the summons when my dad called approximately one week after its delivery. He snail mailed a copy to me which I only just received today. I'm not quite sure what to do next. I am also concerned about how these delays have affected the timeframe in which I am allowed to respond.

The debt appears on my credit report marked as "last payment made August 2009. "Date closed" June 2009. Status charged off. Strangely, the complaint sent with the summons contains what appears to be a photocopy of a monthly statement from the original creditor dated March 2010 implying that the account was perhaps still active at that time. It was not. In a nutshell, this summons is an attempt to obtain a judgment for a debt for which the SOL may have run out in August 2012 (3yr SOL there).

I write "may have" because, in reading the most recent copy of the original creditor's Governing Law clause it references the laws of Delaware and states that the laws of Delaware apply no matter where one lives or uses the account. Delaware has a 4yr SOL on "open ended accounts". Is this enforceable vs the laws of the State in which someone resides?

So, this afternoon I researched some options not knowing where to begin: motions to quash, motions to dismiss, answers, and demurring. I then called the clerk of the Court at which the documents had been filed and hit a dead end...I was asked to consult an attorney. I cannot afford an attorney so here I am hoping someone can point me in the right direction. My questions are:

1. Can I file a motion to quash? Should I? How about a motion to dismiss? This is a court over 100 miles away. Can I quash to force the attorney to have the summons served again to the proper address in a local jurisdiction?

2. How about demurring? I researched demurring in MA on the grounds that the pleading does not state facts sufficient to constitute a cause of action. The potentially expired statute of limitations is mentioned nowhere in the complaint.

3. Respond with an answer solely on the basis of this might be a time-barred debt? Though I am under the impression I'd have to appear at that Court to make my case later anyway.

4. Some combination of the above? Something else?

Also, if you feel a specific approach would be most effective, how do I go about finding the references I would need, relevant to MA law, to support my filing?

Your insight would be appreciated.

 

[prosewhat]

It appears my research was faulty.

Delaware TITLE 10 Courts and Judicial Procedure, Limitation of Actions § 8106. Actions subject to 3-year limitation:

(a) No action to recover damages for trespass, no action to regain possession of personal chattels, no action to recover damages for the detention of personal chattels, no action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations, no action based on a promise, no action based on a statute, and no action to recover damages caused by an injury unaccompanied with force or resulting indirectly from the act of the defendant shall be brought after the expiration of 3 years from the accruing of the cause of such action;

So Delaware also applies a 3yr SOL on credit. I assume I can absolutely use SOL in my response.

 

[army judge]

You've never been served. They served the wrong person at the wrong address. If I were going to bother with this, I'd attack service, too.

They serve the wrong people so the right people never find out, until too late. This is a common scam. Google the lying cheater that's suing you. I bet your eyes will be opened.

 

[mightymoose]

You should consider doing nothing. Dad was served. He should appear in court as indicated on the summons and explain the debt is not his. It should be over with quickly.

 

[mightymoose]

Also, a summons would be issued from a court, not from an attorney. Are you sure you have received a legitimate order to appear?

 

[fredrikklaw]

No Demurring!

PROSEWHAT:

As things stand at the present time, you have a plausible argument to have the summons quashed and should not ignore it just because it was delivered to your dad's address.

I said plausible because even though the process was served 100 miles away, it was made as substitute service as opposed to personal service whereby the summons is served at the last known address of the defendant during normal business hours and left with someone who appeared to be over the age of 18 and who resided at the address …, so on and so forth. That service of process is complete by plaintiff then mailing the copy of the complaint via mail to the same address. So, you are not out of the woods yet.

In order to quash the summons, you and only you can appear and do not send dad to court as he will be sent back for not having standing in the case. So what you do is call the calendar clerk and calendar a motion to Quash Summons for Defective Service of Process for which you will have to prepare and serve opposition pleading, including Points and Authorities and an Affidavit in Support. Also, remember to include the words Defendant Appearing Specially or it will all be for nothing.

Making a special appearance is a shield that allows a defendant to appear in court without conferring personal jurisdiction on the court, in which case you are said to have made a General Appearance and you are stuck. Which is exactly what will happen if you demur, move to strike, or answer with the argument that the complaint was not timely filed. If you argue anything outside the subject of defective service, your protective shield will be eliminated and you will have given the court personal jurisdiction over your person.

So, remember to write SPECIALLY APPERAING and DO NOT argue extrinsic matters other than pertaining to defective service of process.

Now, that is your only and best and most effective option to kick plaintiff out of court; I should know; I have been kicked out by the same defendant for defective service of process 3 times so far and let me be the first to tell you that despite what is available to you now and for all the good it will do, it will but be a temporary relief as the effect of being granted the motion is not the dismissal of the case, but the service of process only. For which the Plaintiff will be instructed by the court to re-attempt service of process.

In other words, it is just a delaying mechanism and does not provide a permanent or substantial relief since the Plaintiff will come right back and serve you again. But there is one benefit in filing such a motion which you will not find written in any Civil Procedure manual, and that is the possibility that some plaintiffs may consider it too much to do it all over again and may well give up the ghost.

I served the Chief Attorney for County of San Diego for the first time over 4 years ago and she has screamed defective service of process 3 times so far, and has succeeded quashing the summons. Attempt number 4 will be made again very shortly.

But that's just me!

fredrikklaw

 

[prosewhat]

Hi MightyMoose, it's definitely legitimate. I described the situation inaccurately. The summons was issued by the Court in my father's county and contained documentation/exhibits from the attorney for the plaintiff.

Fredrikklaw, thank you for taking the time to provide such extensive insight, I appreciate it very much. Is that unique to CA or an action valid in MA as well?

I do wonder if I should simply show up for the hearing (since I'd have to show up anyway to quash) and reference the long run out SOLs (August 1012) in both my State of residence as well as the chosen State of the original creditor's governing laws. There's no debating that both SOLs have run their course. What would be the risk of that response? MA SOL simply does not apply.

Alternatively, as I read your response I questioned if it would be better to pursue the quash and follow that up with a letter to the plainttiff's attorney stating that I intend to inform the Court of the SOL should they decide to pursue the matter in court.

Strategically, which one makes the most sense?

 

[prosewhat]

I am also concerned about the timeline and deadlines. Signed by a Sheriff on the 7th, not served to my father until the 13th, and not received by me until the 21st. The document states that I have 20 days exclusive of the day of service to serve an answer to the complaint.

I would imagine the local police dept would have a record of the date of service, correct? If indeed my father is correct about service on the 13th, I expect that I have until July 3rd.

If I am required to "serve upon" the plaintiff's attorney which method should I use to avoid any claims of improper service? The attorney's office is quite a distance from me in NY.

 

[army judge]

I am also concerned about the timeline and deadlines. Signed by a Sheriff on the 7th, not served to my father until the 13th, and not received by me until the 21st. The document states that I have 20 days exclusive of the day of service to serve an answer to the complaint.

I would imagine the local police dept would have a record of the date of service, correct? If indeed my father is correct about service on the 13th, I expect that I have until July 3rd.

If I am required to "serve upon" the plaintiff's attorney which method should I use to avoid any claims of improper service? The attorney's office is quite a distance from me in NY.

As Moose suggested, verify the authenticity of the alleged summons with the court in question. Google the law firm's name. Many of these scavengers send fake summonses. They are nothing, mean nothing, because they aren't real. They look real, so verify if the case is even docketed.

You're probably fighting a paper tiger, in that this is a scam to scare you into sending money. It's highly probable it's fake, especially if they're suing you for $3,000, $5,000, or some such inconsequential amount.

 

[mightymoose]

Fredrikklaw's suggestion is probably your best option.
As I first read your comments I interpreted that your father was mistakenly identified as you when the documents were served, but it does make more sense that it was substitute service and he just happened to be the one who answered the door.
Do verify everything with the court so you aren't wasting your time and falling for scare tactics.

 

[prosewhat]

Mightymoose, I suspect my Dad was mistaken as me despite the raft of easily accessible public information that shows otherwise. Our information sometimes appears on each others credit reports. Though we've not shared an address in decades.

It's an actual law firm--advertises itself specifically for collections. The Court clerk did verify that the docket number is genuine. I'm not concerned about scare tactics. They have absolutely no effect on me.

My only objective is to make sure no default judgment is granted. Why is a default judgment ever granted due to a failure to appear in person at a hearing (for which service seems obviously improper), or failure to answer a complaint for a debt that it clearly past SOL? That amazes me. We're not talking about a month or two. This is 10 months past SOL. I've never understood how that can be legally permissible.

For that matter, I've yet to comprehend why is it so incredibly simple for a collector to re-age a debt on a credit report. What false documentation is provided to support a re-aged date? Perhaps none is required. It's a guilty until proven innocent approach to credit reporting that's time consuming to correct. Sorry, now I'm just on a rant.