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IS FILING A MOTION TO QUASH SERVICE OF PROCESS A SMART FIRST MOVE IN RESPONSE TO CIVIL SUIT FILED IN CA BY HSBC FOR DEBT OWED?

Pittsburg, CA |

WIFE BEING SUED BY HSBC FOR $2,000 UNPAID CREDIT CARD DEBT. THE ATTORNEY IS BASED IN SO CAL AND SHE IS IN NO CAL. SUIT PROPERLY FILED IN CIVIL COURT, HOWEVER, PROCESS SERVER HIRED BY FIRM DID NOT ULTIMATELY EFFECT PROPER PROCESS OF SERVICE, AS PURSUANT TO CA CIVIL CODE/RULES OF COURT REQUIRES. THREE (3) ATTEMPTS WERE MADE BY SERVER, BUT WIFE WAS NEVER AVAILABLE AND I SPOKE ONE DAY WITH SERVER, BUT HE GAVE NO DETAILS AND LEFT NOTHING WITH ME, NOR DID ANYTHING GET LEFT AT DEFENDANT'S PLACE OF EMPLOYMENT. NOTHING WAS LEFT ON FRONT DOOR EITHER. SERVER EVENTUALLY GAVE UP, AS DID ATTORNEY. INSTEAD, LAW FIRM SETTLED WITH A CASUAL, UNOFFICIAL US POSTAL MAILING OF LEGAL DOCUMENTS AND SUMMONS, WITH NO AFFIDAVIT OF SERVICE FROM ANY PARTY. THIS DOES NOT LEGALLY SUFFICE, PURSUANT TO CA RULES OF COURT.

Attorney Answers 2

Posted

No, filing a motion to quash service of summons based upon the facts you stated is not smart. If you received a set of the summons and complaint by regular U.S. mail, most likely, the plaintiff will claim you were properly served by substitute service.

California Code of Civil Procedure section 415.20(2):

"If a copy of the summons and of the complaint cannot with reasonable diligence be personally delivered to the person to be served as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and of the complaint at such person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing."

Alternatively, if you look inside the envelope, was there a Notice and Acknowledgment of Receipt form inside?

In any event, you are better off responding to the summons and complaint instead of trying to spend your energies and the court's resources in challenging service.

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 posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult with your own attorney.

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Asker

Posted

THERE WAS NO SUCH FORM INSIDE PACKET, NOR DID ANY SERVER LEAVE ANY SUCH DOCUMENTS AT ANY OF SUCH ACCEPTABLE LOCATIONS YOU LISTED. IT DOES NOT WORK. THEY SCREWED UP. THEY MAILED SOME CRAP WITH NO AFFIDAVIT AND NEVER ONE THING SERVED OR LEFT IN PERSON VIA PROCESS SERVER AT ALL. I WANT TO ALSO RESPOND TO COMPLAINT WITH A GENERAL DENIAL THEN SIT BACK AND MAKE THEM PROVE EACH AND EVERY DAMN CAUSE OF ACTION AT THEIR EXPENSE AND TIME. NO BURDEN HERE.

Kevin Samuel Sullivan

Kevin Samuel Sullivan

Posted

Being aggressive with these collection attorneys often works to your advantage as a debtor. Kevin Sullivan 415-441-1052

Kevin Samuel Sullivan

Kevin Samuel Sullivan

Posted

When were you served

Posted

I agree with Mr. Chen regarding substituted service and regarding focusing your energy.

The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.

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Kevin Samuel Sullivan

Kevin Samuel Sullivan

Posted

It is not a good idea. Kevin Sullivan 415-441-1052

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