What to do?

[truth4all]

I posted this in General discussion but maybe this is the better place for an answer.--------------------------------------------------------------------------------

Someone left a summons on my doorstep, yesterday, Saturday, November 27,2004 that states it was deliverd on November 3, 2004.
This is a flat out lie !!!
I live in California but I am not sure about the proper service in this state so they may be able to leave it on the doorstep but they cannot LIE about the date they did so !!!!
What concerns me more is they give me 30 days from DATE OF SERVICE (of which they lied about) to answer. It is about a credit card that I have been "Noticing" Citibank.
I have 5 days to respond with something....... but what?
How do I protest the inaccurate date of service of the summons first ?
Then I will worry about answering the summons.
Help me, please, I am a newbie to all of this.
Thanks all,

[rushpat]

I would guess you could make up an affidavit stating that you only received this on the 27th, and have it notarized. An unrebutted affidavit stands as truth.

Others might suggest that you write it in negative averment format (I have neither seen, nor been presented with any evidence, or material fact that proves that this was delivered before Nov 27, 2004... or something like that).

Get several copies and send to the court, the other party, record at county recorders office, post in the legal section of a local newspaper, etc, and see if they try to rebut it on a point-by-point basis.

I'll let others take it from here.

I also wonder if this would be a point at which to utilize a refusal for cause without dishonor...?

If the summons was served on the 3rd then the court should have a file endorsed (court stamped) copy of the proof of service. You will need to get a copy of it from the court - if your summons was served on the 27th the court probably hasn't received the proof yet, and when the court does stamp it it will probably have a December date.

And yes, it is improper service to leave it on your doorstep.

truth4all,

Ah, yes, Citibank...They do not stop coming. They will lie every chance they get as well. And they do not follow their own rules (contract), nor any laws for that matter, unless you stop them from doing so. You should PM me b/c I have been at it with them for a few months now. I am also in Calif.. However, you do not have to answer the complaint yet. Just put some kind of legible/logical Motion to Strike the complaint or Motion to Dismiss together with your affidavit stating your reasons and the improper service, file it with the court, and send the other party (CITIBANK's attornies) copies of everything you file, along with a proof of service to show that you have served them properly. You can serve them by first-class mail with a third party doing the mailing and signing the proof of service. No return receipt or green card is necessary - you have something better, the 3rd party signed proof of service. The court must address this before they can force you to answer. This will buy you the time you need (30 days, maybe more) to address your substantive issues and will prevent any default judgment from being entered against you. Make 4 copies of everything you do, 1) To send to the other party, 2) To file in Court, 3) For your records (stamped upon filing) and 4) if the court has a place to drop courtesy copies for the department/judge that would hear your motion. IMHO, the filing at the county recorders is unnecessary and will be a waste of $, time, energy. Same thing when it comes to the "refusal for cause w/o dishonor" theory. No one is presenting an order for payment when a summons is served...the UCC is inapplicable here.

-squirrels

Greetings,

Please understand that I am not advising, or even offering any suggestion. I will, however, tell a little story.

Some time ago, an employee of a law enforcement agency apparently left some abandoned paper on my lawn with the intent of considering it served. A third party, not a party to the action, found this abandoned paper blowing around out on the highway, and being a concerned citizen, returned this abandoned paper to the court it hailed from, along with an "Affidavit of a concerned Citizen", signed by two witnesses. The affidavit merely explained that he found this paper out on the highway, and believing that it seemed of some importance, felt it best to return it to the court, for the public good. This was all done within a 24 hour period.

Such an affidavit on the record counteracts any purported proof of service put in by the gangster. But, this only buys time in that they will attempt to do it right the next time.

Sincerely,
truth

[charlesa6]

thruth4all,follow what the squirrels said,all you need to do is just that. When you go to court to file motion to strike make sure you pick extended time for 60 to 90 days. You will have time to do your paperwork for discovery etc.

I asked some people at what you should do... they said you should call the opposing attorney and tell them that you were improperly served and that it left you only 5 days to respond and then ask them if they would extend you the time you need to answer. If they say, yes, get it in writing. If they say no, then you would file a Motion to Quash Summons for Improper Service with the court. Then you would get your evidence of improper service together and file the motion with the court. If the court grants the motion then they'd have to serve you all over again.


Hope this helps.
Tora