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Subpoenad wrong person, wrong address Credit Cards, Rating, Repair

Discussion in 'Credit, Debt and Collection' started by mawdawgster, Nov 11, 2017 at 7:14 PM.

  1. mawdawgster

    mawdawgster Law Topic Starter New Member

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    Jurisdiction:
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    A year and a half ago, I entered a nursing home. At the time, I thought it would only be for a short while, that I would get better and get on with my life. When it was determined that I would be in a nursing home indefinitely, I surrendered my apartment and had my mail forwarded to my daughter's address for convenience. Today a process server, assuming that I lived/live there (and not bothering to confirm whether I did or not), handed my daughter a subpoena with my name on it, directing me to go to court in Jefferson County sometime in Dec. We are concerned that I was improperly served because I live in a nursing home, not with her - in a totally different county. Am I obligated to appear in court in another county? I am on disability and unable to pay anything to the credit card company anyway. How should I/we proceed from here?
     
  2. mightymoose

    mightymoose Well-Known Member

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    Consider yourself served.
    Personal service is not always required. Service at your mailng address with an adult may be sufficient.

    If you fail to show up a default judgment will likely be made against you.
    If you do show up you can at least present a defense or argue improper service and buy more time.

    If you don't want to contest the debt in court and don't care about a judgment then it doesn't matter much if you show up or not.
     
  3. army judge

    army judge Super Moderator

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    If you're on a pension, fighting medical problems, living in a nursing home, you're what the law would refer to as "judgment proof".

    That means if a judgment is obtained, the judgment holder won't collect a dime.

    Should you wish to avoid the judgment on your credit record, a chapter seven personal bankruptcy will prevent the judgment from ever being enforceable.

    If filed before the hearing in Jefferson County, it'll even forestall the hearing.

    If you're interested in bankruptcy discuss the particulars with a bankruptcy lawyer or two nearby.

    If you simply wish for more time to consider your array of options, a note from one of your physicians, addressed to the court indicating you're not well enough to travel, will buy you time well into spring.

    That option is also the cheapest and immediately available to you.
     
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  4. mawdawgster

    mawdawgster Law Topic Starter New Member

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    I certainly do NOT want a judgement against me. Just wondering if the subpoena was valid if living in another county. Thank you for your response.
     
  5. mawdawgster

    mawdawgster Law Topic Starter New Member

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    Thank you for your quick, comprehensive response. Will consider all carefully!
     
  6. army judge

    army judge Super Moderator

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    You're welcome.

    One more thing to ponder.

    If you're receiving social security or another pension, it can't be touched to satisfy a judgment pertaining to consumer debt.

    Most notable is OJ Simpson.
    A $30,000,000 judgment is haunting him.
    Yet, his NFL, Screen Actors Guild, and social security pension income is untouchable.
     
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  7. zddoodah

    zddoodah Active Member

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    Just to be clear (because a lot of folks confuse the two), you're sure this was a subpoena and not a summons? Also, if it's a subpoena, I assume it doesn't really "direct[] [you] to go to court . . . sometime in Dec[ember]." Rather, I assume it has a specific date and time. Correct? If it's a subpoena, does it relate to a civil case or a criminal case, and do you have any idea why your testimony is being sought?

    This suggests maybe it's a summons (and complaint) and not a subpoena.

    I will defer further comment until you clarify this.
     
  8. mawdawgster

    mawdawgster Law Topic Starter New Member

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    I stand corrected, it is a summons (thank you!), and yes it does have a specific date and time to appear. It is an attempt to collect a debt for a credit card company. I have been informed that since I am on disability and in a nursing home, I may e-mail the collection firm a "hardship" letter explaining my situation, that I will attempt to file bankruptcy when possible and go from there.
    Thank you ALL for your help!!
     
  9. zddoodah

    zddoodah Active Member

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    Ok, so let's revisit your original post:

    If you don't appear, the court will probably enter a default judgment against you. Rule 503(a) of the Colorado Small Claims Rules provides as follows: "All actions in the small claims court shall be brought in the county in which at the time of filing of the claim any of the defendants resides, or is regularly employed, or has an office for the transaction of business, or is a student at an institution of higher education." Rule 503(b) provides as follows: "If a defendant appears and defends a small claims action on the merits at trial, the defendant agrees to the place of trial."

    If I understand your original post correctly, you do not reside (or do any of the other things) in Jefferson County). Therefore, you may be able to object to the venue. Is it worth doing that? That's for you to decide, but my guess is that it probably isn't -- especially since you have designated the address where you were served as your mailing address, which any concerned person is going to assume means you live there.

    That leaves the question of whether service on your daughter was good service. Under Rule 504 and Rule 304 of the Colorado Rules of County Court Civil Procedure (which I don't have a link for), it is not, but only because you don't live with your daughter. However, as noted above, you have created a situation whereby folks can reasonably assume you live there. It is worth filing a motion to quash service? Again, that's for you to decide, but I would say no. You'll eventually get served properly, so why not just proceed to having the case decided on the merits?

    Informed by whom? You can, of course, send whatever e-mail or other correspondence you want. However, I can assure you that folks in the business of collecting debts do not give one iota of concern about someone saying, "I will attempt to file bankruptcy." Filing bankruptcy will put a halt to collection proceedings, so if you're going to file bankruptcy, just do it. However, as "army judge" noted, it may be that you have no non-exempt assets such that any judgment against you could not be collected. That's something to discuss with a local attorney if you're inclined to explore the bankruptcy option.
     
  10. mawdawgster

    mawdawgster Law Topic Starter New Member

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    WOW!! I called the legal firm that issued the summons and was told to e-mail the hardship letter - which I have and am now waiting on a response. I did not mention the word "bankruptcy" in it at all! Thanks :)
     

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