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Attorney 1
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Category: Consumer Protection Law
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I received a summons Discover Bank debt via "Suttell, Hammer

Customer Question

I received a summons for a Discover Bank debt via "Suttell, Hammer & White" - however, I was not personally served. There is no court date or instructions anywhere on the paperwork save that I need to respond by February 13th. It is not a huge debt and I would be willing to settle for a reasonable payment plan, but unsure about the best course of action. I have Googled this collector and am reading that they are completely unreasonable and make moves to ensure court dates are missed to secure a judgement. Appreciate advice.
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JA: Please tell me everything you can about this issue so the Consumer Protection Lawyer can help you best. Is there anything else the Consumer Protection Lawyer should be aware of?
Customer: I received a summons for a Discover Bank debt via "Suttell, Hammer & White" - however, I was not personally served. There is no court date or instructions anywhere on the paperwork save that I need to respond by February 13th. It is not a huge debt and I would be willing to settle for a reasonable payment plan, but unsure about the best course of action. I have Googled this collector and am reading that they are completely unreasonable and make moves to ensure court dates are missed to secure a judgement. Appreciate advice.
JA: OK. Got it. Last thing - JustAnswer charges a fee (generally around $18) to post your type of question (you only pay if satisfied). While you're filling out that form, I'll tell the Consumer Protection Lawyer about your situation and then connect you two.
Submitted: 1 year ago.
Category: Consumer Protection Law
Customer: replied 1 year ago.
The summons was handed to someone at an old address, not to me. Can I file a motion to vacate since this was improperly served and there is no clear information?
Expert:  Attorney 1 replied 1 year ago.

Hello, and welcome. I am a licensed attorney and happy to assist.

You can potentially argue invalid service of the summons through a motion to quash, and I'll get to that in a moment. I have a lot of information for you.

Expert:  Attorney 1 replied 1 year ago.

Almost ready...

Expert:  Attorney 1 replied 1 year ago.

First and foremost, if the lawsuit has actually been filed (it will have a case number ***** it) then you need to be sure to file and serve a timely answer. That's your first step, regardless of any potential for settlement. That way, you won't end up facing a default judgment, no matter what. If you are indeed dealing with an unscrupulous collection company, then it would be a good idea to keep an eye on the electronic court docket to make sure nothing is happening that you aren't aware of. A daily check might seem like overkill, but it's a good practice. You can access your case docket on your county court website using the case number ***** on the first page of your summons.

Also take a look at the first page of the actual complaint. That will probably be a page or two into the packet you received and will be formatted differently than the summons. It's where all of the allegations are listed. At the very top left of the page will be an attorney's name next to a bar number and below that will be a phone number. You can call that phone number and speak with the attorney directly, in most cases. That's the person who has authority to settle the case and will often do so to save the time and energy.

Often times, unfortunately, that "law firm" listed on the complaint is nothing more than a glorified collection agency with an attorney on board somewhere that appears in court and provides some degree of legal authenticity to the company. In cases like this, you will likely be directed to a "case manager" being denied direct access to the attorney. The case manager will also have authority to settle, and any settlement should be in writing, regardless of the person with whom you speak. If you hire an attorney to handle this for you, the attorney will necessarily be able to get through to the opposing side attorney. Hiring an attorney to handle this on your behalf is an option, but is not necessarily needed, particularly if this is a small debt that you can get handled on your own.

In terms of potentially quashing the subpoena because of improper service, that takes a motion that needs to be filed within the time otherwise designated for an answer. If you go this route, you could buy some additional time, but the end result will likely be the same, either way. If you do decide to file/serve a motion to quash, it is recommended that you have an attorney handle this for you, because you could lose the motion if all the particularities are not precisely followed. A good referral source would be your county bar association. There should be no charge for that referral and no charge for the initial consultation with the attorney to whom you are referred. Again, if you go the straightforward route you should be able to settle a small debt on your own without too much effort. Remember, all they want is a cost effective solution.

Expert:  Attorney 1 replied 1 year ago.

I hope this helps. If you need additional information or clarification, please let me know and I will continue providing assistance. If I have addressed your concerns or pointed you in a positive direction, please remember to leave a positive rating when prompted, as that is how attorneys on this site are credited for the help we provide.

Good luck!

Best,

Attorney 1

Customer: replied 1 year ago.
Attached is what I see when searching the electronic court docket with the assigned case number. Can you help me make sense of this? A hearing date of 12/12/2018?As I was improperly served (they went to my mother's house and handed the papers to her and she called me with the info.), I did not have these details in time to file an appropriate response. Tomorrow 02.13.16 is the supposed deadline. Would love some advice...thanks!
Expert:  Attorney 1 replied 1 year ago.

Thanks for the additional information. It seems the lawsuit was filed, the case was opened and the court unilaterally set a very future hearing date at the expiration of the time the creditor has to actually serve the lawsuit and pursue the case. The court often does this just to have something in place to make sure that, under no circumstances, does the case just linger indefinitely. On the 2018 hearing date, if no activity has occurred in the case, the court will just dismiss it. It has no bearing on your obligations now.

If your deadline to file an answer or motion to quash in is due tomorrow, it needs to get filed right away. Filing a motion to quash will give you about an extra ten days to file an answer if it is denied. If the motion is granted the creditor has to properly serve the documents and the clock starts from there. It would be a good idea to call the courtroom clerk (you may not get through after 3:30 PM) and get a hearing date for the motion to quash (if you choose to go that route) and get either a motion to quash or an answer filed with a proof of service today. The answer may be easier because there's a judicial council form to fill in for it, and I don't think there is a form for a motion to quash (although it's worth checking - http://www.courts.ca.gov/forms.htm).The document can be served on opposing counsel by mail, so if you deposit it in the mail today, a proof of service with today's date will be valid, even if actually postmarked tomorrow. If you don't file something today, you can bet that opposing counsel will request entry of default by Monday or Tuesday.

You can fax file the motion or answer, though it's a bit risky because, with the recent court reorganization, timely fax filing is somewhat undependable. It's safer to file your document in person. You would need to bring two copies of the document, stapled, two hole punched at the top to the filing clerk window. One will be filed by the clerk and the other will be "conformed" which means stamped with the date and returned to you. That conformed copy is proof of timely filing. It's important.

The filing window may close at 3:30 PM, which may also be the fax filing cut off time.

I hope this helps. If you need additional information or clarification, please let me know and I will continue providing assistance. If I have addressed your concerns or pointed you in a positive direction, please remember to leave a positive rating when prompted, as that is how attorneys on this site are credited for the help we provide.

Good luck!

Best,

Attorney 1

Expert:  Attorney 1 replied 1 year ago.

To clarify, an answer to the complaint may also be served by mail.

Customer: replied 1 year ago.
I am not finding a form for a motion to quash, nor do I know what I need to include in a mailed answer. Please advise.
Customer: replied 1 year ago.
Please also let me know what the 12/12/2018 date means if I do not mail a motion to quash or answer by tomorrow.
Expert:  Attorney 1 replied 1 year ago.

You can ignore the 12/12/2018 date. It is not relevant. It only becomes relevant if the other side sleeps on this for two years, which they will not do. It's the date by which the court will unilaterally dismiss the lawsuit for failure to prosecute if nothing happens by then. It is nothing to be concerned with.

Expert:  Attorney 1 replied 1 year ago.

I doublechecked for you.

Chatsworth filing window is open until 4:30 p.m.

Fax filing is also accepted until 4:30 p.m., but it often takes hours to get through and should be used only as a last resort. If not received on their end by 4:30, it will not be marked with a filing date earlier than Tuesday, since Monday is a holiday. And sometimes fax filings are lost.

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