I need legal advise on how to proceed. I was served one week ago. The debt was sent to Portfolio Recovery by original creditor in 2010.
If you have been served with a summons and complaint in a superior court lawsuit in California, you have 30 days from the date of personal service to respond.
You don't indicate the amount of the alleged debt, but the best advice is to hire an attorney to defend you.
If the summons and complaint were not properly served on you, either in person or via substituted service, you or your attorney may wish to consider filing a motion to quash service of summons. This is a "special appearance" to challenge personal jurisdiction. Such motions are often disfavored in California because the plaintiff can usually simply re-serve the summons.
There are a variety of possible legal responses to a Complaint. The most common is to file either an Answer or General Denial. The form for the Answer is (Judicial Council Form PLD-C-010):
The form for the General Denial is (Judicial Council Form PLD-050):
A "demurrer" can be used to challenge the sufficiency of one or more causes of action in a plaintiff's complaint. A motion to strike pursuant to California Code of Civil Procedure § 435, and § 436(a) is used to strike whole or part of complaint, or any irrelevant, false, or improper matter inserted in any pleading.
There is a first appearance filing fee in connection with filing an Answer or General Denial. If you cannot afford the first appearance filing fee, you may apply for a fee waiver. See:
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
If properly served personally, you have 30 days to file a response with the Court, or your default may be taken, allowing entry of a Clerk's Judgment without further delay. As stated on the summons that should have accompanied the complaint, the response must be in proper written form, filed with the Court, and a copy served by mail to the attorney for Portfolio Recovery. Unless you seek and qualify for a fee waiver, you will be required to pay a filing fee when you file the response to the complaint.
A response to the complaint typically consists of an answer, admitting or denying the various allegations of the complaint. If you concede that you are indebted to Portfolio Recovery (or more properly, the creditor who assigned its claim to Portfolio Recovery), then you may have no real defense and filing an answer may be simply buying time. If the reason you have been sued is that you lack the financial means to pay the debt, and you cannot reach the terms of a written settlement of the debt, then perhaps you should be looking at bankruptcy options, especially if the Portfolio Recovery claim is just one of many debts you are facing.
Since you are in Orange County, you may want to contact the Orange County Bar Association Lawyer Referral Panel to obtain a lawyer referral, or search for an attorney on Avvo, where numerous skilled and highly qualified attorneys' listings can be found.