Illegal Summons delivery?

[maker1333]

What is the name of your state? NY

A few weeks ago my tenant called to tell me he had been given a Summons for me. It was not delivered by a Police officer, and was handed to him, open, with no envelope, so its contents were available for him to see.

I've never seen a summons before, and first, am wondering if it actually is one. Second, aren't they required to be delivered by an officer? Third, don't they have to be in an envelope? Fourth, isn't it inappropriate to be given to a tenant, who could qualify as a neighbor? (since I use the front of the building for storage)

The 2 page paper has a stamp in the upper right corner, Received Chautauqua County Clerk and the date and time. It says:

To the above named defendant(s):

YOU ARE HEREBY SUMMONED TO ANSWER THE COMPLAINT IN THIS ACTION AND TO SERVE A COPY OF YOUR ANSWER, OR, IF THE COMPLAINT IS NOT SERVED WITH THIS SUMMONS, TO SERVE A NOTICE OF APPEARANCE, ON THE PLAINTIFF'S ATTORNEY WITHIN 20 DAYS AFTER THE SERVICE OF THIS SUMMONS, EXCLUSIVE OF THE DAY OF SERVICE (OR WITHIN 30 DAYS AFTER THE SERVICE IS COMPLETE IF THIS SUMMONSIS NOT PERSONALLY DELIVERED TO YOU WITHIN THE STATE OF NEW YORK... ETC ETC ETC...

Was I supposed to go to the court?? I did not- but, did call the attorney on the summons, and made a compromise offer, which they would not accept.

The 'Attorneys for Plaintiff' are COHEN & SLAMOWITZ...

On the second page, where a signature shoukld be, there is just a capital 'S', does that make it signed??

This is about an original debt of $5252., for a Sears credit card, which has been bought by Colorado Capital Investments. The judgement is for $10,023.

All my credit was perfect until Sept. 11th, 2001. After Oct 2001, all went unpaid as we were devastated.

I plan to talk with them again Monday, and hope to know more about this before making a higher offer.

Did they do things according to the law?

Thank you...

[Ladynred]

NY laws do not require a summons be served by an officer of the law, any process server will do. NY is a 'nail and mail' state, which means they do NOT have to PERSONALLY serve you, all they have to do is leave the papers at your 'usual place of abode" and you're considered served - legally. If the tenant could be considered a neighbor that would give YOU the summons, then it is probably still legal service.

You had 30 days from the service of the summons to either file an Answer to the Complaint with the lawyer and the court (if you got a copy of the Complaint with the summons) or file a 'notice of appearance' (tell 'em you'll be there) with the Court and the lawyer and then GO to the court date.

If the 30 days has passed, then they likely already have a default judgment against you. If it has NOT passed, then you need to file your Answer (or Notice of appearance) ASAP or you WILL have a default judgment against you.

[maker1333]

the complaint was attached to the summons-

I called the County Clerk yesterday- she said they 'think' that another letter must be sent to me before a judgement hearing is scheduled... but didn't know. I had also called the debt collector and made a compromise offer, which they did not accept. they sent me a counter offer and said it must be accepted by yesterday, the 20th.

somehow they have turned an original debt of $5252. into $!0,000. saying they added $1300 legal fees- which adds up to $8000. so-??

thanks for your input

[maker1333]

i just looked at the summons for a court date, there is none there-

wouldn't they have to give me a date to appear in court before just 'getting ' a judgement?

[Ladynred]

You would get a court date after you filed your Answer to the Complaint. If they don't serve you personally, they can leave the summons but must also mail you a copy.

I would definitely challenge the amount they're alleging you owe - besides their added court costs. That's one of those allegations in the Complaint you can answer as 'lacks insufficient knowledge to affirm or deny'.

[JETX]

Ladynred is correct in her post. Here are the rules for service in New York:
Rule 308. Personal service upon a natural person.
Personal service upon a natural person shall be made by any of the following methods:
1. by delivering the summons within the state to the person to be served; or
2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law; or
3. by delivering the summons within the state to the agent for service of the person to be served as designated under rule 318, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;
4. where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;
5. in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.
6. For purposes of this section, "actual place of business" shall include any location that the defendant, through regular solicitation or advertisement, has held out as its place of business.

You need to file an answer if it isn't too late.

[You Are Guilty]

Uh, JETX cited the correct statute but Ladyred interpreted it quite incorrectly. "Nail & Mail" referred to in 308(4) has a very important restriction - it can only be used where personal service cannot be made with 'due diligence'.

What that typically means is that the process server has to show at least 3 attempts, on different days of the week, at different times during the day, where personal service was attempted and unsuccessful before he can resort to nail & mail.

Since I can't see the affidavit of service that was filed, you need to be careful since you can (inadvertantly) waive your lack of personal jurisdiction defense if you "appear" in court. I'd strongly suggest you ask the Clerk how your county handles requests for a "traverse hearing" (probably by motion). (There's a decent shot you were not served according to the law and this is the hearing where the judge would determine that.)


PS: Pay your bills, deadbeat

[maker1333]

Thanks very much for your input, everyone- looks as if things are on track now...

After calling the Court and Clerk a few times, it appeared the summons and its delivery was legal... so I typed up an answer letter and drove to the courthouse and filed it with them.

I had called the plaintiff's lawfirm/debt collector Cohen & Slamowitz (who, apparently has had a class action suit against them for illegal debt collection tactics) by phone and made a compromise offer, directly after receiveing the summons. I really did not believe the summons was legal, and had no experience with summonses, so did not understand that an answer letter was required. Apparently, a default judgement has been avoided now. I've found what appears to me to be a reputable credit advocate to guide me in handling finances, Bud Hibbs. I've read his book, which is free on the internet, and like what he says.

Just for the record, to the person who used the name 'deadbeat', my personal debt is result of dedicated, persistent investment of effort in the 'American Dream'. I believe that my efforts will 'pay off' as they will be helping others gain- and never be in this debt situation again. The course I've chosen has educated me on the fine points of finance- and how business is done.

Taking care of my family is #1. I'm doing that, mom 91, dad 93, kids 9, 11. My company is partnering with NASA on an educational CD for learning Aeronautics that I co-wrote with NASA scientists and educators. My patent on a construction tool has led to the modifying of power drills made by several companies, none of whom pay me, my tenants have regularly broken their leases, HUD did not punish the Mortgage company for not following through with payment disbursements, which led to a half finished building restoration, followed by our divorce. In the past ten years since then, the banks have earned $43,000. in interest on the loan, while my personal cost to maintain the property has been thousands each year. TV recently announced that where I live has the highest taxes in the country, though last month the fight was over whether to close all the libraries or not. I have designed and built a $1.1 million Class te thousand clean room facility- interestingly, there are no new ones being built locally to my knowledge, so efforst to make a living an staying near my family didn't pan out. My $1.5 million plans to begin manufacture of my products in an abandoned bicycle factory in the center of our dying village came to a halt on september 11th, when 3 investors backed out, forcing the focussing on the NASA CD only. We are in a day when Enron takes people's life savings and eats them up, giving nothing back, people at the top like Trump thuink nothing of filing bankruptcy and moving on like it's no big deal, we go to war in a land where we would never think of living ourselves, where the motivation is clearly the expansion of wealth from oil for the people in power, instead of investing in energies for the future.

So, my ethics having been brought into question here, yeah, I guess there is a chip on my shoulder- wrote MUCH more here than I'd intended.

(it's scary to see just how good I'm getting at describing a few years of events in a paragraph.)

I hope you'll gain by my efforts- maybe get your kid interested in teaching themselves by my AeroCD and flying toys- ( [url]www.aerocd.org[/url] ) or save your back from a week's pain by using a Drill Lever ( [url]www.makertools.com[/url] ) or someday driving a truly safe, efficient car ( [url]www.makermade.com[/url] )

I sincerely thank you all for your free advice, even for deadbeats... and,

Merry Christmas!

Bill Maecker

[You Are Guilty]

Good luck Bill - but in the future, the " " at the end of sentences means the statement is to be taken with a grain of salt, not seriously.

[maker1333]

Haha, the joke was on me...! gave me an opportunity to whine...!

Guess I didn't expect to see sarcastic humor on this site...!

Thanks again for your advice, 'you are guilty'...

Bill
----------------------------------------------------

Good luck Bill - but in the future, the " " at the end of sentences means the statement is to be taken with a grain of salt, not seriously.

[DerbyGirl]

maker1333

Just wanted to say hello neighbor.

DG

[maker1333]

Hi Derby Girl-

Do you wear a derby, or live in Derby? I'm nearby, at the beach in Angola-

Happy New Year

Bill

[DerbyGirl]

maker1333

Small world (especially for small towns) - right down the road

My brother & sis in law live on the beach.

Happy New Year

DG

[maker1333]

you too...