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Re: Collections, Time clock started August 20, 2009 - CCP337 Me:

Re: Collections, Time clock...
Re: Collections, Time clock started August 20, 2009 - CCP337
Me: I am not an attorney but have some understanding of the law and filed my own docs....

Been Legally disabled for over 10 years, Living on social security, no home, no property, no stocks, no bonds, and have about $150.00 in the bank to my name..

Had credit cards terminated in 2009 or earlier. Past victim of identity theft on several occasions, too. I have documents to this effect. Last recorded activity was in Aug 20, (((2009)))

In Aug 20, 2010 a law office filed suit but service was invalid and My Motion to Quash granted ; the hearing ((Never)) took place, nor any ADR. Bank has history of violations of the FDCPA. Also, had about 5 different collections after me for the (same) debt in different Jurisdictions - which is illegal. My past Dismissal with Prejudice against them in 2010 was overturned this month, but my Quash was in place from 2010. Again, no hearing ever took place and NO Judgment against me at this time.. sitting in limbo.

CCP 583.210(a) says Summons with 3 years which was done in 2010 but invalid, and the Summons date has come and gone (due to Quash) with NO new date. 583.310 says action must trial w/in 5 years but the Statue of Limits CCP 337 says 4 years for written agreement.

Issues: CCP 704 bans them from taking my Soc Sec money, deposits, etc.. 407 Soc Sec Act also bars them from taking my money. B&P 17206.1(a)(1) - Cannot take disabled person money/things.

Anyway, if I am NOT taken to trial and there is no new court date, then does Statute of Limitations go into effect this coming week? They have tried to have a hearing in the past but have not told me when the hearing is.... hoping I would default. But checking court records...I am cautious and won so far. Doesn't Rules of the Court require them to notify me of a new hearing date and Service Required.

Is there an argument to 583.210(a) ? How can they claim I was served with a Summons in 2010, and they do not have to tell me when to appear in the future - makes no sense to me. Help !
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Answered in 10 hours by:
8/10/2013
Lucy, Esq.
Lucy, Esq., Attorney
Category: Legal
Satisfied Customers: 31,006
Experience: Lawyer
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Hi,

My name is XXXXX XXXXX I'd be happy to answer your questions today. I'm sorry to hear about your situation.

First, you are essentially judgment proof if your only income is from disability or Social Security and you have no other assets. That means that even if they do manage to get a judgment against you, they cannot collect it.

The statute of limitations resets each time that a payment is made, a card is used, or the person agrees to pay it. That last part is extremely important - an agreement to pay an expired debt is binding and enforceable on you, so do not let them trick you into agreeing to pay. Otherwise, if you have not paid anything or agreed to pay since August 2009, the statute of limitations is about to expire.

In addition, when your dismissal was vacated, the filing date of Aug. 20, 2010 is reinstated. If the summons is not served on you properly within three years, you can move for dismissal under Cal Code Civ. P. Section 583.250. If the case is dismissed under that section, they are prohibited from refiling it. However, it's not going to necessarily by Aug. 20, 2013. Take a look at the exceptions in Section 583.240. The clock does not run during the time that prosecution of the case was stayed, during any time that you were avoiding service or living out of state, or while you were disputing the validity of service. That means that they'll end up getting a little bit more time due to all the motions that have been filed.

If you have any questions or concerns about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.
Lucy, Esq.
Lucy, Esq., Attorney
Category: Legal
Satisfied Customers: 31,006
Experience: Lawyer
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Lucy, Esq. and 87 other Legal Specialists are ready to help you
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Customer reply replied 4 years ago


Hi:


 


I know my Soc Security cannot be lien, attached, levied, taken, etc...


 


I understand about the time clock starting on the date of the last payment made.... Statute of Limitations CCP 337.


 


583.240 if fine but was not out of state, etc....


 


I guess I should re-phrase it.........


 


In 2010 I was served a suit, the service was not given to me, I filed a Motion to Quash which was granted. Since that time they have not been given a judgment against me, nor have we had an actual court hearing or ADR..... My quash and Findings and Orders After the Hearing were granted and fine in 2010, but I made mistakes writing the Judgment papers.


 


Now, 2 1/2 years later they file a Motion to Vacate Judgment of my issue of 2010 due to my errors in the doc. So basically this re-sets everything over.....


 


((They)) are claiming that under 583.210(a) they only have to serve a Summons upon me one (1) time and that NO other service is needed.


 


*** This is somewhat confusing 583.210(a)..... if NO OTHER SERVICE is needed, and the original hearing Vacated, then how do you know when to go to court in the future? They are claiming they do not have to tell me... which contradicts the Rules of the Court.


 


583.220(b): states that a Motion to Dismiss, Quash, Set Aside judgment, etc... does NOT constitute a "general appearance"


 


If we never had a formal court hearing since 2010, they never got a judgment against me..... the original hearing was Vacated due to service issues... and the ONLY thing they got was my original 2010 Judgment Vacated.... then their time limit to file for a new hearing has to be by Aug 20, 2013 before the Statute of Limitations ?


 


I also completed my Bankruptcy papers and classes.... I have my documents. Bankruptcy would trump or stop the current court action as it take priority..... but no sense for BK if they cannot take my Social Security - you see there is a catch 22 here. Also, again, CCP337 statute of Limitations is up shortly....


 


Since they know I am disabled and living on Social Security, and cannot collect, it seems that this is "Abuse of the Courts" and nothing but harassment by them.


 


To constantly file or take action against a disabled person that they cannot collect from, is (to me) harassment and causing me harm. I cannot afford to keep filing court papers as I do not have the money - so they are causing me harm because that takes away from my food money.


 


I hope this makes sense.

I'm sorry that you're in this situation.

Most companies settle these cases for pennies on the dollar - they're willing to take whatever they can in some cases. That means that they're basically pursuing it in hopes that you'll agree to pay something to make it go away.

Again, the time between when you filed a Motion to Quash the subpeona and when it was quashed is not counted in the three years. So, their time limit won't be up on August 20 - they'll get more time, depending on how much time that took.

If the original summons was not quashed, no, they won't have to serve you with a new summons. They only need to serve you with copies of all documents filed in the case going forward, and the court will notify you of any hearings by mailing you copies. Just make sure that the court has your current address. If the dismissal was vacated and the Summons was never quashed, then the next step is to file an Answer to the Complaint to avoid having the judge enter another default.

You are correct that filing for bankruptcy would make the judgment go away, if they get one. You would have to evaluate whether you wanted to do that in light of the fact that there is no way for them to collect it.
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Customer reply replied 4 years ago

Hi Lucy:


 


You said: "If the original summons was not quashed, they won't have to serve you with a new summons"....


 


That is what is confusing..... the original Summons (was) quashed and No hearing ever took place - it was vacated, and No judgment against me. My motion to quash was a separate court date and hearing.


 


But they are claiming they do not have to serve me any new documents, nor any future court date - that the Summons "carry's NO expiration date", that it only be served within 3 years. This does not make sense to me.


 


How can there be an "open" Summons with NO court date to appear. I did originally file an Answer Contract disputing what they said and cited all the various violations of the FDCPA, violated the Truth in Lending Act, and other laws.....


 


The purpose of a Summons is to be ordered to appear in court at a given date and time (per the Rules of the Court, and under the Federal Rules).... but they are NOT telling me of any court date, not since 2010 and claim they do not have to inform me of any future hearing dates.....


 


This is what I do not understand and I have been searching the Civil Code and CCP that would compel them to "inform" me of any future hearing dates . The only way I have found out is by looking at the Courts "Open Access" and watching what is going on.... and filing a response. I have never seen anything so crazy and wrong.


 


If I was a person that did not know about Open Access, I would be screwed because they never advised me or served me documents for any court date.... How can they get away with this?


 


After the above answer.... I think I will let you be in peace :) and appreciate your feedback.


 


 


 

Once the Complaint is filed and served, it's not the opposing party's responsibility to notify you of court dates - it's the clerk of the court that has to do that. The opposing party has to serve you with copies of all documents filed in the case, which will include hearing requests. When a hearing is granted, then the clerk is supposed to notify both sides of the date.

There is a caveat in the statutes where the opposing party has put in an appearance. If you have already filed motions and an Answer, it's entirely possible that the judge would refuse to dismiss the case based on the amount of time since the summons was filed and force the case to go forward on the merits.
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Customer reply replied 4 years ago


Ok, now we are getting somewhere..... the problem is the court clerk has never notified me of anything, and I have never seen them do so in other matters involving friends - it has always been on the Petitioner to do so via a Process Server or 1st Class Mail, then they file the POS with the court.


 


Ok on going forward..... if it did, it would go to ADR and there hopefully the mediator would understand my issues on 407 of the Soc Sec Act and 704 of CCP - cannot take my disability money; It is considered "uncollectible". My whole case is a mess and sounds like it will be a tit-for-tat on filings and responses.


 


Still seems like an Abuse of the Courts by them constantly filing and trying to create a hardship on something they cannot legally collect.


 


Thanks for your time...... I am sorry I took so much of your time. My mind is spinning and trying to get it all out that would make sense to an Attorney (as I am not an attorney) is difficult for me....


 


Have a good weekend !


 


Take Care,


 


Norm

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