Motion to Quash Service

[menchari]

What is the name of your state (only U.S. law)? OH

I have a question on whether to use a combined "vacate judgement" or "dismiss" motion.
This is in regards to a law suit that was filed at a former address. Before they filed the lawsuit I had done two validation/dispute requests and only received one near duplicate of the first dunning letter and a letter with insults for the second. I still have copies of those so called answers and upon examination of my records going back nearly 20 years I have nothing that bears the name of the outfit they claim to purchase the debt from.
I beleive it is identity theft as a few months ago I removed from my credit reports a bill from someone with the same last name as mine.
If I had gotten notice from the court when the case was filed I couold have easily gotten rid of it, however since I did not I will shortly be filing a motion to quash service. Should I include a motion to vacate judgement or since I can show they could not validate the debt use a motion to dismiss with the quash service.

Upon examining what they filed with the court no documentation was included with their motions not even stating what kind of debt either. Which of course doesn't comply with CivR 10 (d) either let alone the more stringent requirements for showing debt in Ohio.

 

[Ohiogal]

What is the name of your state (only U.S. law)? OH

I have a question on whether to use a combined "vacate judgement" or "dismiss" motion.
This is in regards to a law suit that was filed at a former address. Before they filed the lawsuit I had done two validation/dispute requests and only received one near duplicate of the first dunning letter and a letter with insults for the second. I still have copies of those so called answers and upon examination of my records going back nearly 20 years I have nothing that bears the name of the outfit they claim to purchase the debt from.
I beleive it is identity theft as a few months ago I removed from my credit reports a bill from someone with the same last name as mine.
If I had gotten notice from the court when the case was filed I couold have easily gotten rid of it, however since I did not I will shortly be filing a motion to quash service. Should I include a motion to vacate judgement or since I can show they could not validate the debt use a motion to dismiss with the quash service.

Upon examining what they filed with the court no documentation was included with their motions not even stating what kind of debt either. Which of course doesn't comply with CivR 10 (d) either let alone the more stringent requirements for showing debt in Ohio.

You can't quash service. Why would you think you can? You can do motions to dismiss or motions for summary judgment but you cannot do a motion to quash service. You were either served or you weren't.

Was a judgment levied against you? If so, when? By who?

 

[LordofBooks]

Unfortunately, Ohiogal is exactly right, you can't motion to quash service. People can also sue you and are allowed and required to serve the necessary parties. Generally, you argue that the service was improper, e.g. not all the documents were included. But generally all that will do, even if granted, will slightly delay an inevitable lawsuit.

 

[Ohiogal]

Unfortunately, Ohiogal is exactly right, you can't motion to quash service. People can also sue you and are allowed and required to serve the necessary parties. Generally, you argue that the service was improper, e.g. not all the documents were included. But generally all that will do, even if granted, will slightly delay an inevitable lawsuit.

Amazing. The Ohio attorney is exactly right on an Ohio thread.

Actually, if service was improper it can get a case reversed or be the basis of a 60(b) motion. But I don't understand how he expects to quash service.
You can quash a subpoena (or at least motion for that) but you can't quash service.

 

[justalayman]

anybody for a game of quash?


just a guess but I think the OP may be using the term quash in reference to seeking to rule the service invalid therefor allowing for a 60(b) motion to be granted?


menchari:

You state service was to a prior address yet you had been having some communication with the creditor. I presume you moved prior to them filing suit and that was why it happened. How long after your communications was the suit filed? Did you register a change of address with USPS? Had you changed the address on your license prior to the service?

Before they filed the lawsuit I had done two validation/dispute requests and only received one near duplicate of the first dunning letter and a letter with insults for the second.

do you realize what is required under the FDCPA for validation?

(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;

after that, one would seek a verification which is:

) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the
debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of
a judgment against the consumer and a copy of such
verification or judgment will be mailed to the consumer
by the debt collector;

Do you also realize that failing to properly fulfill a request for verification does not prevent them from filing a suit?

 

[latigo]

You can't quash service. Why would you think you can? You can do motions to dismiss or motions for summary judgment but you cannot do a motion to quash service. You were either served or you weren't. . . . .

If you are saying that a defendant cannot move to have the return set aside/quashed under subparagraphs (4) and (5) of Rule 12(B) (2) on the ground that s/he was not served with process, then I must respectfully disagree.

Certainly a motion to quash service will not address whether a defendant is a proper party, but it is commonly provided by rule of law that the defense of insufficiency of process and/or insufficiency of service of process may be raised by either preliminary motion or a responsive pleading.

Moreover the very matter of jurisdiction over the person hinges on whether or not proper service of process has been effected.
_______________

Here, it appears that a default judgment has already been decreed.

If I had gotten notice from the court when the case was filed I could have easily gotten rid of it, however since I did not . . .

If so, the OP’s appropriate course is to file a 60(B) motion in which s/he can address the question of whether or not proper service of process was accomplished.

 

[Ohiogal]

If you are saying that a defendant cannot move to have the return set aside/quashed under subparagraphs (4) and (5) of Rule 12(B) (2) on the ground that s/he was not served with process, then I must respectfully disagree.

Certainly a motion to quash service will not address whether a defendant is a proper party, but it is commonly provided by rule of law that the defense of insufficiency of process and/or insufficiency of service of process may be raised by either preliminary motion or a responsive pleading.

Moreover the very matter of jurisdiction over the person hinges on whether or not proper service of process has been effected.
_______________

Here, it appears that a default judgment has already been decreed.



If so, the OP’s appropriate course is to file a 60(B) motion in which s/he can address the question of whether or not proper service of process was accomplished.

I am not saying that the defendant cannot argue insufficiency of process or service. They most certainly can by responding properly to it. But this party cannot move to quash service based on improper party. That is another argument. In addition it is not a motion to quash service (at least not in the several counties of courts I practice in Ohio -- the northeastern quadrant to be specific). Service arguments are most definitely allowed for sufficiency and perfection issues. I and my colleagues have won several cases based upon those arguments. But to have service quashed when perfected (which seemed to be what OP was talking about) does not happen and is not a motion that is acceptable.

 

[latigo]

. . . . But to have service quashed when perfected (which seemed to be what OP was talking about) does not happen and is not a motion that is acceptable.

Interesting subject, but I'm wondering if we aren't acting slightly pedant.

Your phrase "when perfected" also is of interest as it seems to beg the very question. WAS SERVICE IN FACT LEGALLY PEREFECTED?

Isn't it as much to say that a process server's self-serving certification or affidavit that service of process was legally "perfected" is somehow etched in stone and cannot be challenged? That they must be taken at face value?
____________________________

If Ohio doesn’t recognize a motion to quash, void, or set a side a return of service of summons or service of process (however one wishes to label it) then it is unique among the states and out of sync with practice under the FRCP which Ohio appears to have adopted in toto.

When operating under the Federal Rules of Civil Procedure it is a common practice in testing the sufficiency of service of process to file a “MOTION TO QUASH SERVICE AND DISMISS THE COMPLAINT pursuant to Rule 12(b)(4) and 12(b)(5).”

Example: www.taf.org/opinions/******/Motion%20to%20Dismiss.pdf

In fact one web site shows a glossary of legal terms in your state including “motion to quash service of summons”.

And one United States District Court web site contains a glossary of legal terms, including:

“Quash: To vacate or void a summons, subpoena, etc.”

See: www.id.uscourts.gov/glossary.htm
_________________________

Also, In Coltea vs. Bellinger et al., Circuit Court of Cook County Illinois – No. 00 MI 734509

“SPECIAL APPEARANCE AND MOTION TO QUASH SERVICE OF SUMMONS AND TO SET ASIDE DEFAULT JUDGMENT - Pursuant to § 2-301 of the Illinois Code of Civil Procedure, 735 ILCS 5/2-301 * (Defendant) moves this Court to quash service of summons and to set aside any default orders or judgments entered against her in the instant case. . . . “
__________________

Then we have California Code of Civil Procedure Section 418.10. (a) “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes:

(1) To quash service of summons on the ground of lack of
jurisdiction of the court over him or her. “ (Emphasis added)[/I]

___________________________

In sum, I am not willing to accept the proposition that if this OP were to file a “SPECIAL APPEARANCE AND MOTION TO QUASH SERVICE OF SUMMONS AND TO SET ASIDE DEFAULT JUDGMENT” –and offer it pursuant to Ohio’s Rule 12 (B) (4) and (5) - that the Ohio court would, as matter of course, toss it out as not being a recognizable motion.

But if you have any case law showing that Ohio is thus married to form, please cite the same.

All with due and deserving professional respect.

___________________________________


[*] 735 ILCS 5/2-301 Section 2-301 Objection to jurisdiction over the person. (a) Prior to the filing of any other pleading or motion . . . a party my object to the court’s jurisdiction over the person on the ground . . . . or insufficiency of process or insufficiency of process . . . by filing a motion to quash service of process . . .’

 

[menchari]

Okay. I have never received anything from the court at any point. The case was filed shortly before I moved to my current address and nothing has been received by myself nor returned to the court. So I need to know how to address the issue of not receiving anything from the court. I had seen cases including in Ohio where a motion to strike or quash service was used sometimes filed with a motion to vacate judgement or to dismiss. I need to know what to do in order to handle a situation where I had never gotten anything from the court.
I do know how to dismiss a debt collection lawsuit and I have in the past as long as I get notice of a lawsuit in a timely fasion. This one looks like identity theft. I have had two rounds of credit report fraud alerts and some corrections made already this year. My favoite report that was removed was for an ultrasound of a pregnant woman when Im a guy (same last name). The joys of having once lived in an apartment complex where the mail could end up anywhere. I don't use loans, credit cards, or a mortage, not counting my student loans which I paid off some time ago.


For examples of filing two I will have to add them later. Though in my past experience with the court the case is at they throw a motion out if the second motion isn't filed the same day. Yes that did happen to me once before however, I was still able to get that one dismissed for a family member.

 

[Ohiogal]

Okay. I have never received anything from the court at any point. The case was filed shortly before I moved to my current address and nothing has been received by myself nor returned to the court. So I need to know how to address the issue of not receiving anything from the court. I had seen cases including in Ohio where a motion to strike or quash service was used sometimes filed with a motion to vacate judgement or to dismiss. I need to know what to do in order to handle a situation where I had never gotten anything from the court.
I do know how to dismiss a debt collection lawsuit and I have in the past as long as I get notice of a lawsuit in a timely fasion. This one looks like identity theft. I have had two rounds of credit report fraud alerts and some corrections made already this year. My favoite report that was removed was for an ultrasound of a pregnant woman when Im a guy (same last name). The joys of having once lived in an apartment complex where the mail could end up anywhere. I don't use loans, credit cards, or a mortage, not counting my student loans which I paid off some time ago.


For examples of filing two I will have to add them later. Though in my past experience with the court the case is at they throw a motion out if the second motion isn't filed the same day. Yes that did happen to me once before however, I was still able to get that one dismissed for a family member.

Motion to dismiss due to lack of personal jurisdiction. If they have not perfected service, they do not have personal jurisdiction. However if there is not a judgment you cannot use a 60(B). How far into the suit are you? Has judgment been made?

 

[menchari]

Judgement had been made some time ago. Never got any kind of notice from the court till a garnishment order had been sent to my current address. All prior notices were sent to my old address and were not returned.

For cases involving quashing/striking of service combined with vacating judgement/dismissing here are as follows.

DeFranco v. Shaker Square of Ohio, 2004-Ohio-3864.
in this case a motion to dismiss was included which was later converted to a motion for summary judgement in regards to lack of service.

Powermark homes v. John Doe Case No. CV 07-625465 in cuyahoga common pleas court.
this one is a combined motion to quash subpoena with a motion to quash complaint. It was successful with the mothion to quash complaint viewed as a motion to dismiss. Good case to review for what you can safely post online.

GMB Financial Group, Inc. v. Michele Marzano
this one is from Illinois and shows what not to do for quashing service. Don't file anything before filing the motion to quash service.

State ex rel. Suburban Constr. Co. v. Skok, Ohio St.3d, 1999-Ohio-329.
A failed motion to quash service. Lawyer was out of town for a month when service was sent to his office.

Other sources though from other states show motions to dismiss or vacate judgement can be included with the motion to quash service.
To help support my motion to quash service beyond an affidavit the fact that nothing was returned to the court in the past year even though I have been at my current address for over two years.

 

[menchari]

I will look up 12 (b) and 60 (b) Thanks.

Further info in regards to a question above is the plaintiff stated that they had purchased a debt from a Firstusa. The claim filed with the court never stated what it was or from when it was. Beyond that I do keep extensive finance records and I have absolutly nothing with the name of FirstUSA on it with my oldest records dating back to 93. I am assuming that it is either identity theft or the plaintiff is suing whoever that has the same last name in the area of whoever that had gotten whatever kind of loan or credit card from them. (if you look up the later you will find some debt collectors do exactly that). Like I said I had already removed from my credit reports a medical bill belonging to someone else with the same last name. Have also been getting credit report requests from AmEx when I haven't applied for anything from anyone in years.

 

[Proseguru]

OP needs to put dates to these activities .. what, 20 years ago they got a judgment? A motion to dismiss (like post #10 said) is the proper motion to file. If it is timely will be up to the court to decide.

I have no idea if success is possible as after 10000 words by the OP, I have no idea when anything occurred.

 

[menchari]

I have an update. I filed a motion to dismiss based on portions of 12(b). primarily service of process and process of service, with additions of not submitting the asignee documentation or copies of documentation from the outfit they had purchased it from.
Less than a week after I filed the motion I found another old document in my records referencing the same account number but being owned by another bank and dating from the year after the outfit suing me claims to have made their purchase. The other account may be legit as I once did have an account with the second bank, but it was closed 7 years ago due to no activity since I paid it off in 02.
With what research I did on Firstusa it looks like they might have been selling off account information belonging to other banks as they act as a middleman for a large number of other banks for credit card applications. With that part I do not have any proof of that beyond I see a large percentage of complaints in regards to firstusa stating that they never had an account with them or belonging to a relative. But again just a suspicion since there is virtualy no way I could verify anything like that. That and never having had a first usa account to begin with myself.

What should I do with this information of the other party claiming the same account after I already filed the motion to dismiss?
I do have concerns as it is a very crapy muni court that most try to use the county one when possible.

 

[menchari]

I just received a responce from the court in regards to my motion to dismiss.
It has a title of "journal entry of judgement" and only states "Upon defendant motion to dismiss, refer to Magistrate for action."

What would that mean and am I supposed to do something in regards to it?