How do I appeal or object to an improper service of a limited civil lawsuit lawsuit?

Asked almost 5 years ago - Hercules, CA

I'm being sued by a collection attorney for an unsecured debt that was charged off by the credit card company. It's a limited civil case. No one was home when they served me. So they left the lawsuit a few feet from my front door. They never mailed me a copy. Isn't that an improper service? How do I object and appeal the service? What court forms do I need to complete and file with the court?

Attorney answers (4)

  1. Pamela Koslyn

    Contributor Level 20

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    Lawyer agrees

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    Answered . The proper way to object to improper service is by filing a motion to quash the summons, and it's due within the time your answer is due. Your local law library will have forms of this kind of motion and the governing rules in these books:

    California Forms of Pleading and Practice
    California Points and Authorities
    Rutter Guide - civil Prodcure Before Trial
    California Civil Practice - Separate sets for different kinds of cases
    Civil Procedure Before Trial (CEB - One Volume)
    California Rules of Court
    Code of Civil Procedure of California

    But why bother doing that? At the hearing on this motion, if you show uprepresenting yourself, you could be served then and there. And if the debt was charged off befor it was assigned to anyone for collection, you should have a meritorious defense.

    Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.

  2. Jonathan H Levy

    Contributor Level 20

    1

    Lawyer agrees

    2

    Answered . As noted by my colleague, avoiding service can only get you so far. Better to answer it. However, before doing so, check with the Court and see if a return of service has actually been filed. Process servers get up to all sorts of tricks of the trade to smoke out defendants.

  3. Alan James Brinkmeier

    Contributor Level 20

    Answered . If you find it worthwhile, file a motion to quash. You can be served in the courthouse, though, when you appear to argue the motion before the judge.

    You need a lawyer. Check with a lawyer in your locale to discuss more of the details.

    Good luck to you.

    God bless.

    NOTE: This answer is made available by the out-of-state lawyer for educational purposes only. By using or participating in this site you understand that there is no attorney client privilege between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed professional attorney that practices in the subject practice discipline and with whom you have an attorney client relationship along with all the privileges that relationship provides. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question.

  4. Thomas M Dunlap

    Pro

    Contributor Level 9

    Answered . Motino to quash - but I would not file it yourself. Have a lawyer enter a special appearance on your behalf (if your jurisdiction allows for such a thing). Although it sounds like you have a substantive defense adn as such your lawyer could pobably accept proper service - or get an agreement from the opposing party to extend time to answer. Remember that if you do not do something there could still be a default entered against you. Many states have "back-up service" laws where actual receipt can be substituted or "good enough" for service. If the debt is not in a court of record oftentimes judges can lso make decisions thatvary with what a lawyer would otherwise predict as these decisions can be appealable de novo and are not "of record".

    NOTE: This answer is made available by the out-of-state lawyer for educational purposes only. By using or participating in this site you understand that there is no attorney client privilege between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed professional attorney that practices in the subject practice discipline and with whom you have an attorney client relationship along with all the privileges that relationship provides. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question.

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