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  1. #1
    Join Date
    Nov 2010
    Posts
    2

    Default Proper Service of Summons

    My question involves collection proceedings in the State of: Georgia

    First things first.
    1) Some names & addresses have been changed to protect the innocent.
    2) I consider myself to be a betting man.
    3) I live in Texas.
    4) #'s 2 & 3 are not one and the same.

    The rest of my family lives in Georgia. I have lived in Texas for exactly two years. Before that I lived in GA for almost my entire life.
    I am being sued for some credit card debt.

    I admit that I owe a few credit card companies some money that I borrowed from them about 4 years ago while I was living in Georgia. I went through a point in my life where I was not able to re-pay my credit card debts as agreed. I decided to walk away from some of the credit card debt almost exactly 3 years ago to this day while I was living in Georgia.

    Again, I moved to Texas two years ago. I've since been able to manage my finances more responsibly…But now it looks like i'm being sued by a law firm that deals in junk debt for one of the credit card companies (Chase).

    Specifically I recently received an envelope from my mother (who lives in GA) which contained a notice/summons from a GA debt attorney who wants to sue me for one particular credit card debt that I opened in GEORGIA.
    They are suing me for approximately $12,800.00
    The original amount is $11,600.00. Compounded interest and attorney's fees bring it close to $12,800.00

    Based on the info from the summons I believe that if the CA has anything, it is a dollar amount, a name, an address, and the original account number. NOTHING ELSE.

    I'm looking for a way to leverage the law in my favor in order to dismiss the lawsuit.

    I now have 9 days to respond to the summons.

    I'm betting on the fact that the plaintiff is hoping for a default judgement based on the least amount of information possible at this point. I believe that the plaintiff is fishing for a quick default judgement on some high risk loans that he believes few defendants will respond to. I believe that the plaintiff will not strongly pursue this case for several reasons……

    LET'S GET SOL OUT OF THE WAY FIRST:

    The SOL on CC debt in GA is either 4 years or 6 years depending on how it's prosecuted. The SOL for CC debt in TX is 4 years. I'm still within the SOL either way.

    Outside of that, the first thing that comes to my attention with this is the fact that I'm being sued in Georgia even though I now live in Texas. The person that served the summons was a Constable in Georgia who served the papers to my father.

    WHAT'S INTERESTING ABOUT THIS FACT IS THAT MY FATHER AND I SHARE THE SAME NAME.

    A little background: My parents have lived at the same home address for 40 years. Their home address is on my credit report and vice versa. My father has no real debt. He does not owe any credit card debt or home loans or anything. He is what we would call "old school".
    Based on this, I'm assuming that the summons was intended for me....it was simply served at my parents address since their address is on my credit report. It was served by a Constable to the person named on the summons……William J. Smith.

    The constable didn't think to verify whether or not it was William J. Smith Sr. (my father) or William J. Smith Jr. (me). He simply served the summons as it was written…..to a Mr. William J. Smith. WITH NO SUFFIX.

    The summons didn't specify whether or not it was intended for my father or me since we share the same name. There was no qualifying information on the summons such as a social security number or a date of birth. It only listed the name as William J. Smith as the defendant.

    The Constable served the summons to the person that he thought was the person that he should be serving the summons to at the correct address on the summons.
    Only it wasn't the correct person.
    The Constable was actually serving a summons intended for ME but actually to my FATHER at my fathers address. Now, because he and I share the same name (except for the suffix) and the same address (on our credit reports) it seems like a harmless mistake….. except when it comes to lawsuits (I hope).

    In my mind what they technically did was that they served my father (William J Smith Sr.) a summons for a lawsuit that he does not owe. Period. End of Story. In which case they are responsible and liable for the lawsuit.

    I'm trying to get clear on whether or not this is accurate and my due course of action if so.

    So I'm looking at my options. I have contacted several attorneys in Georgia. I have discovered a few things about the case.

    1) All of the attorney's that I have spoken to all want at least a $1,500.00 retainer to take the case.

    2) The defendant named in the lawsuit is William J. Smith at 123 Sesame Street. Technically this is my father. This means that he is being sued for a debt that he does not owe. Thus, he may be able to have the summons dismissed for improper service of summons. They served the wrong person. Furthermore he may be able to countersue for the hassle.

    Now, the reality of what I'm dealing with is:

    I DO NOT HAVE THE $1,500.00 FOR AN ATTORNEY'S RETAINER.

    I AM TRYING TO DEAL WITH THIS ON MY OWN. I AM WILLING AND ABLE TO DEAL WITH the Georgia Courts AS NECESSARY BUT I WOULD PREFER FOR THIS TO GO AWAY AS SOON AS POSSIBLE.

    IT WOULD MEAN A LOT TO ME IF YOU COULD OFFER SOME SOUND LEGAL ADVICE AT THIS POINT.

    AGAIN, I'm betting on the fact that the plaintiff is hoping for a default judgement based on the least amount of information possible at this point. I believe that the plaintiff is fishing for a quick default judgement on some high risk loans that he believes few defendants will respond to. I believe that the plaintiff will not strongly pursue this case for several reasons……

    Here's how I am planning on dealing with it at this point. Please tell me if you think this is the best way to proceed.

    1) I can ask my father to call the plaintiff and explain to them that they are suing the wrong person. He will be able to assert that he doesn't know who own's the debt…..but that it is definitely not him. At that point the plaintiff can either:

    1) dismiss the summons/suit.

    2) continue the summons/suit.

    If they dismiss it then all's well (Hopefully).

    If they continue with it I plan on asking my father to show up on the court date to ask them for the documents proving that the debt is his, i.e. a signed contract including a social security number proving that the debt is his……knowing that if there is a signed contract it will be in my name with my social security number with my previous address, NOT HIS. This info should win him the case.

    If he contests the case with the plaintiff and the plaintiff dismisses the lawsuit in GA…….only to turn around an pursue another lawsuit in TX against me, I am willing to deal with it as needed. I feel like too much time has passed since I opened the credit card in the first place. I feel like the original creditor has given up on me……that they sold the account and did not bother to reliably pass on the required documents to the collection agency who is now suing me. I would rather take my chances with this scenario in the possible future than risk not answering the current lawsuit in Ga.

    Again, I believe that if the CA has anything, it is a dollar amount, a name, an address, and the original account number. NOTHING ELSE.

    Again, I am betting on the fact that they are hoping for a default judgement based on the least amount of information possible at this point.
    I believe that at this point that they do not have the original documents to prove that I opened the credit card. Which means they have nothing to base their accusations on and if I show up in court asking for these documents at a later date that they will lose at that point also.

    Any and all responses are welcomed. Thank you.

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Proper Service of Summons

    I'm not going to wade through that.

    If you want to dispute service you will have to check the court file to see if substituted service was authorized by the court, or if the plaintiff is proceeding on the theory that you reside in the address where you were "served" and filed a proof of service based upon the receipt of service by an adult family member of your presumed household. We cannot investigate this for you.

    The statute of limitations is an affirmative defense. If you believe the action is time-barred, be sure to raise that as an affirmative defense when you answer your complaint.

  3. #3
    Join Date
    Nov 2010
    Posts
    2

    Default Re: Proper Service of Summons

    I found this:

    Types of Service:
    PERSONAL SERVICE

    In Georgia, an appropriate officer must personally hand the defendant a copy of the Complaint and Summons in order to effect personal service. Personal service is deemed accomplished when an officer, pursuant to directions of the defendant, placed the Summons and Complaint in an area adjacent to where the defendant was working. Service under the long-arm statute is made by any person authorized to make service by the laws of the foreign jurisdiction or by any duly-qualified attorney, solicitor, barrister or equivalent in such jurisdiction.
    SUBSTITUTED SERVICE

    The creature of statutory enactment, and is so named because the service thereby permitted is in substitution for personal service, the method of the common law. It is also commonly called "notorious service". Georgia Code states that substituted service shall be effected "by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the Summons and Complaint to an agent authorized by appointment or by law to receive service of process." The requirements of this section, that the process be left at the defendant's usual place of abode and with some responsible person, must be followed precisely or the service is void.
    CONSTRUCTIVE SERVICE

    The Georgia Code permits constructive service only in specified circumstances. These include "when the person on whom service is to be made resides out of State, or has departed from the State, or cannot, after due diligence, be found within the State, or conceals himself to avoid the service of the Summons. Additionally, Constructive Service is available in any action which relates to, or the subject of which is real or personal property in the State in which any defendant, corporate or otherwise, has or claims a lien or interest, actual or contingent, therein, or in which the relief demanded consists wholly or in part of excluding such defendant from any interest therein, and the said defendant resides out of the State or has departed from the State or conceals himself to avoid the service of Summons.

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