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Legalease
Legalease, Lawyer
Category: Legal
Satisfied Customers: 14568
Experience:  15 years exp all aspects of general law
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I live in Philadelphia Pennsylvania. I was served with a complaint,

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I live in Philadelphia Pennsylvania. I was served with a complaint, eventually in a case involving an old credit card debt. I last paid on the debt in November 2008. The complaint was filed in March 2012 and listed for a hearing in November 2013. Between filing and the first hearing I was not personally served with the complaint, so the case was continued until February 2013. Between the first date and the second date I was not served so the case was continued again until April 15, 2013. I still was not served so a week before the second hearing date, the plaintiff asked for service by alternative means and the case was continued again until June 2013. The request for alternative service was denied because of improper investigation under local rules and because the order typed by plaintiff named a defendant other than me. The plaintiff asked for a reconsideration of the denial which was granted. The order stated that I had to be served by regular mail, certified letter and sheriff posting. I received a copy of the complaint in the mail. The sheriff posted a copy on my door. I did not get a certified letter. I did not go to the post office to pick it up. Was service valid? Do I have any defense because the statute of limitations ran out before I was served, if I was?
I also need to know if they get a judgment against me can they take property that is jointly owned with my husband, he is not named as a party to the suit.
Finally, should I and could I file for bankruptcy?
Thank you for your help.
Submitted: 1 year ago.
Category: Legal
Expert:  Legalease replied 1 year ago.

Hello there

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The service of process will be found by the court to be valid because the court ordered them to send it via certified mail -- and they only have to show the returned letter to the court to show that the letter was sent by certified mail and that they complied with the court order -- as well as showing proof of mailing of the regular letter and proof from the Sheriff that it was posted on your door. So, I honestly do not think that you have an out with this service issue. However, because the statute of limitations on credit card debt in PA is 4 years, it cannot hurt to file an answer to the complaint and a motion to dismiss for failure to bring the claim within the PA statute of limitations for credit card debt. You can call it an "Answer and Motion to Dismiss" -- typically when I answer these complaints from credit card companies it is a short answer stating that you have no knowledge of how much is owed at this point and you deny that the debt is legally due because they failed to bring the claim within the 4 year statute of limitations for credit card debt allowed by PA law. Now, it may not work -- but when you get to the oral argument you state that it was up to them to be ready to move forward with this case within the statute of limitations and they had no right to keep coming back to the court for "bites of the apple" in order to try to get their complaint language and the information on their defendant correct. This will be completely up to the judge reviewing the matter and the judge may simply find that because they made the filings after Nov 2012 (to request alternate service, etc) correctly, then they DID meet the 4 year statute of limitations. It will be a complete judgment call on the part of the judge who hears the case. But it cannot hurt and the worst they can do is tell you that you still owe the debt and ask you to make payment arrangements.

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Typically the court will force the credit card company into a payment arrangement with the defendant and will not permit any wage or bank account garnishments unless you default on the payment arrangements. Regarding jointly owned property -- such as a house -- they can put a lien on the house but they cannot force the sale of the house because there is another owner (the same goes for any other property that is jointly owned). Anything that is owned individually can be seized and sold by the Sheriff if it gets that far -- however, the court typically goes for a wage garnishment or bank account garnishment before actually seizing any property.

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Finally, regarding the bankruptcy question. There are 2 types of bankruptcy -- Ch 7 is a complete wipe out of all of your debts and stays on your credit for 10 years and Ch 13 is a reorganization payment plan over 5 years where you pay a portion of the debt through the bankruptcy court and at the end of the 5 years you are discharged from owing any of them any more money --- that stays on your credit for 7 years. The type of bankruptcy that you can and should file depends upon how much consumer debt that you have and your income -- a family of 2 (both you and your husband) cannot earn more than about 60K a year to qualify for a CH 7 bankruptcy -- if you do not meet the income threshold then you are forced into a CH 13 bankruptcy by the court. Whether or not you want to file depends upon debt level and income and your best bet is to speak with an experienced bankruptcy attorney in your area to setermine what your options actually are to file for bankruptcy to get rid of this debt and any other debts you may have. To find one, my suggestion is that you contact the Phil bar association attorney referral service -- they should give you several names and then you can speak to a few of them and go from there.

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I hope that this helps. I wish I could give you some legal means to make this all go away, but in the last several years since the consumer bankruptcy laws got tougher in 2005, these credit card companies are getting bolder and bolder. They know it is hard to qualify for a CH 7 bankruptcy to wipe them out these days so they are more often hounding people into court and making them pay through wage and bank account garnishments and any other nasty means that they can think of.

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MARY

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Customer: replied 1 year ago.

Mary thank you for your prompt answer. One more question, and then i will happy to give a good rating. i cannot tell when service was completed - i received these copies on different days. When is the 20 days up and is there further notice that I will receive and additional time to respond/

Expert:  Legalease replied 1 year ago.

Hello there

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The rule is that you must respond with a written answer 20 days from the date of service of process. In your case the actual service date can arguably be any one of the three dates that you received each service -- so if you are pressed for time then you can argue that the last date is applicable (if for some reason you cannot get the answer into them for 20 days after the last service you received - if the plaintiff tries to claim that you defaulted I do believe the court will accept your argument that the time should be 20 days from the last service you received). However, it will probably be best if you get the answer into the court by the 20th day after the Sheriff posted on the door (because courts like third party (Sheriff) service the best). You may even want to call the clerk's office and simply ask them that question -- which date should you use on the service. Because what they did to get service is so unusual there is no real rule on which one is the operative date for you to file your answer with the court. I wish I could give you a firmer answer than that -- but I cannot.

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MARY

-

Please press the 3rd, 4th or 5th smile face below so I will be paid for my time. I am paid NOTHING unless you press a positive rating below. Pressing a positive rating below will NOT cost you any additional money -- it simply acts as a trigger for Just Answer to pay me for my time. THANK YOU

Legalease, Lawyer
Category: Legal
Satisfied Customers: 14568
Experience: 15 years exp all aspects of general law
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