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Ray
Ray, Lawyer
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Experience:  30 years in civil, probate, real estate, elder law
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I have a question regarding California Rule 3.74 (D). Can

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I have a question regarding California Rule 3.74 (D). Can anyone help?

RayAnswers :

Thanks for your question and good afternoon.Can you tell are you referencing a rule of civil procedure or what and what is your question here so that I may assist?

Customer:

Hi Ray,

Customer:

Here's the original question I had answered in June 2011:

Customer:

I have a question regarding debt collection in the state of California. I received a credit card from a major bank and unfortunately ended up defaulting on my payments due to a serious loss of income. The last payment made via electronic transfer (immediately, same bank), according to my records was made on May 2, 2007. I never responded to the banks demand for payment and the debt has since been written off by the bank and sold to a collection agency. I never responded to or spoke to anyone from the collection agency nor did I ever acknowledge the debt. The collection agency filed a civil suit against me on May 3, 2011. I have yet to be served. (I know they filed suit against me because I was looking for other information on the court website and happened to type my name in "just for fun". Talk about timing!) SOL in California, from what I understand, is 4 years. I don't know how to interpret that as it applies to this case. It's been 4 years, 54 days since the last payment was made. Is this debt considered "time-barred" and will the court dismiss it as such? Will I have to go to court if I get served? If it's time barred or not, will I need an attorney to respond/represent me?

RayAnswers :

Is this the rule you are asking about??

RayAnswers :

Rule 3.740. Collections cases


(a) Definition


"Collections case" means an action for recovery of money owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney fees, arising from a transaction in which property, services, or money was acquired on credit. A collections case does not include an action seeking any of the following:


(1)Tort damages;


(2)Punitive damages;


(3)Recovery of real property;


(4)Recovery of personal property; or


(5)A prejudgment writ of attachment.


(b) Civil Case Cover Sheet


If a case meets the definition in (a), a plaintiff must check the case type box on the Civil Case Cover Sheet (form CM-010) to indicate that the case is a collections case under rule 3.740 and serve the Civil Case Cover Sheet (form CM-010) with the initial complaint.


(Subd (b) amended effective January 1, 2009.)


(c) Exemption from general time-for-service requirement and case management rules


A collections case is exempt from:


(1)The time-for-service requirement of rule 3.110(b); and


(2)The case management rules that apply to all general civil cases under rules 3.712-3.715 and 3.721-3.730, unless a defendant files a responsive pleading.


(d) Time for service


The complaint in a collections case must be served on all named defendants, and proofs of service on those defendants must be filed, or the plaintiff must obtain an order for publication of the summons, within 180 days after the filing of the complaint.


(e) Effect of failure to serve within required time


If proofs of service on all defendants are not filed or the plaintiff has not obtained an order for publication of the summons within 180 days after the filing of the complaint, the court may issue an order to show cause why reasonable monetary sanctions should not be imposed. If proofs of service on all defendants are filed or an order for publication of the summons is filed at least 10 court days before the order to show cause hearing, the court must continue the hearing to 360 days after the filing of the complaint.


(f) Effect of failure to obtain default judgment within required time


If proofs of service of the complaint are filed or service by publication is made and defendants do not file responsive pleadings, the plaintiff must obtain a default judgment within 360 days after the filing of the complaint. If the plaintiff has not obtained a default judgment by that time, the court must issue an order to show cause why reasonable monetary sanctions should not be imposed. The order to show cause must be vacated if the plaintiff obtains a default judgment at least 10 court days before the order to show cause hearing.

RayAnswers :

You would need to respond here.If you are asserting a motion to dismiss to claim the SOL the lawyer can do that.There is a good chance this might be dismissed.It certainly is close either way as far as the SOL.

Customer:

MY NEW QUESTION IS: The court has set an OSC hearing pursuant to Rule 3.74 for 1/10/2013. On December 28th I received a copy of the summons and a NOTICE OF ACKNOWLEDGEMENT OF RECEIPT and a self addressed stamped envelope. On 12/31/12 the plaintiff filed a declaration regarding the service of process (10 days prior to the upcoming hearing). Nobody has come to my door in over a year and it was my understanding that per rule 3.74 they only had 180 days to serve. What's going on? Can I expect this to be continued or dismissed?

RayAnswers :

Again you may raise service as another and separate issue here in a motion to dismiss.I think a local lawyer would have a couple of good grounds here to raise in this matter concerning the SOL and service.It appears they may not have been timely with that either.It is sure worth having the lawyer raise both issues here.It might allow you to have the suit dismissed here and that would be the end of the collection case.As you can see it is common that they can be pretty sloppy in filing these because they are usually done in bulk and written by paralegals and signed in mass by lawyers who don't always pay attention.You have nothing to loose here by raising both of these issues.

RayAnswers :

You would need to pursue dismissal on basis of the failure to timely serve and also the SOL issues.Gives you two good chances here to get it dismissed.

Customer:

According to the rule shouldn't they have already served me? It's my understanding that if they fail to serve within 180 days the court can continue for 360 days from the date the suit was originally filed. That day has long since passed. Shouldn't this be dismissed at the hearing on 1/10/2013?

RayAnswers :

It appears that way to me.But I think it would be better for you to go on and raise this in your own motion to dismiss here arguing these two points as well as the SOL and get it all of record.I think a lawyer would raise all of this hoping that the court agrees and dismisses the suit.

RayAnswers :

You can locate a local lawyer here.

RayAnswers :

I wish you good luck here in getting this dismissed.They appear ot have been real late filing as well as the service.

RayAnswers :

Certainly it gives you some good points to raise with the court.

RayAnswers :

Thanks for letting me help you today and a happy new year.

RayAnswers :

I hope that you will be so kind as to leave a positive rating. If you do have any additional questions about my answer please click the "Continue Conversation Link" so I can provide you with a fully satisfactory answer. Please be aware that any rating of 1 or 2 is reflected as a negative rating and I receive no credit for my answers.


This communication does not establish an attorney-client relationship.Information provided here is not legal advice. Rather it is simply general information.

RayAnswers :

You will get a copy of your chat including the rule above when you rate, thanks again for letting me assist you.

Customer:

By law it should be dismissed on the 10th correct? It's been 600+ days since they filed

RayAnswers :

That would be your argument and that they cannot remedy it.It appears the court is leaning that way as they have set it for hearing.

Customer:

Thanks Ray. Happy New Year!

RayAnswers :

You too/

RayAnswers :

Can you rate it again I had to fix it here.Thanks

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