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a question from florida

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  • a question from florida

    i recieved a letter from a plaintiff attorney representing one of my unpaid credit cards. enclosed was a DEFAULT FINAL JUDGEMENT and a blank form ( small claims rules form 7.343 ) for me to fill out, of course asking my income, check stubs etc...The letter was sent by the Plaintiff attorney and although it looks like real court papers it was not sent by the courts. also it was sent in the mail and not hand delivered. i plan on getting legal advice but would like to hear from others who may have gone through this. i plan on BK in the future but not yet as the means test is an obstacle for now. Can i ignore this letter and wait for an official letter from the courts ? any penalities ? thanks from florida

  • #2
    That is the official paper. I'm in a small-ish town in New York and the judgment was filed with a local court who sent it to me by regular mail. If you call the court, I'm pretty sure they'll have your judgment on file. You can ignore, but if I were you, I'd be worried about them freezing my bank accounts and garnishing my wages, unless your state is one of those where that can't happen.

    Also, that sounds like an income judgment, the one where they threaten to garnish your wages if you don't respond in 20 days.
    Filed August 20 341 on September 23 Report of No Distribution - September 24 Case Discharged and Closed on November 23!!!

    Comment


    • #3
      For my Florida friend, you can go to your County Clerk of the Court's website and search for a civil case, if there is such a case. Just go to that Clerk's website for your County and look for online searches. Under online searches, just Search Court Records. If your County specifically separates Civil and Criminal matters, then select the Civil Court side. Otherwise, just use the Search Court Records and enter your last and first name. It should return any Civil (and criminal) cases that were filed with you as either Defendant or Plaintiff.
      Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
      Status: (Auto) Discharged and Closed! 5/10
      Visit My BKForum Blog: justbroke's Blog


      I am not an attorney. Any advice provided is not legal advice.

      Comment


      • #4
        jb...so they actually "serve" one in person as well in florida...??

        we also rec'd a "summons" via mail and not in person at one time whie living here in foridia.
        8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! http://www.bkforum.com/blog.php?32727-tobee43 and all are welcome to bk forum's Florida State Questions and Answers on BK http://www.bkforum.com/group.php?groupid=9

        Comment


        • #5
          Originally posted by tobee43 View Post
          jb...so they actually "serve" one in person as well in florida...??
          In Florida, the summons must be served by the Sheriff and in person. That's from Florida Rules of Civil Procedure Rule 48.021. Sometimes, they can use "alternate" service, but some other criteria must have been met. I don't know what those conditions are, but it's usually for non-residents or service upon certain entities that is not a natural person.
          Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
          Status: (Auto) Discharged and Closed! 5/10
          Visit My BKForum Blog: justbroke's Blog


          I am not an attorney. Any advice provided is not legal advice.

          Comment


          • #6
            Originally posted by justbroke View Post
            In Florida, the summons must be served by the Sheriff and in person. That's from Florida Rules of Civil Procedure Rule 48.021. Sometimes, they can use "alternate" service, but some other criteria must have been met. I don't know what those conditions are, but it's usually for non-residents or service upon certain entities that is not a natural person.
            Actually, service of summons by certified mail can and is permitted in Florida. It is permitted under FRCP 1.070 Process, section (i). There is a waiver process to service by mail, that is you can refuse service by mail, and pay the additional costs for service by a process server. Obviously few would do this. Also for Small Claims Court up to $5,000, summons by certified mail is permitted. I'm not sure whether 1.070 (i) applies to the $5000 small claims limit or not, since there is no mention of this limit in the rules.

            Florida Rules of Civil Procedure
            1.070 Process
            This rule was published on October 23, 2009
            ...

            (i) Service of Process by Mail. A defendant may accept service of process by mail.

            (1) Acceptance of service of a complaint by mail does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant.

            (2) A plaintiff may notify any defendant of the commencement of the action and request that the defendant waive service of a summons. The notice and request shall:

            (A) be in writing and be addressed directly to the defendant, if an individual, or to an officer or managing or general agent of the defendant or other agent authorized by appointment or law to receive service of process;

            (B) be dispatched by certified mail, return receipt requested;

            (C) be accompanied by a copy of the complaint and shall identify the court in which it has been filed;

            (D) inform the defendant of the consequences of compliance and of failure to comply with the request;

            (E) state the date on which the request is sent;

            (F) allow the defendant 20 days from the date on which the request is received to return the waiver, or, if the address of the defendant is outside of the United States, 30 days from the date on which it is received to return the waiver; and

            (G) provide the defendant with an extra copy of the notice and request, including the waiver, as well as a prepaid means of compliance in writing.

            (3) If a defendant fails to comply with a request for waiver within the time provided herein, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure is shown.

            (4) A defendant who, before being served with process, timely returns a waiver so requested is not required to respond to the complaint until 60 days after the date the defendant received the request for waiver of service. For purposes of computing any time prescribed or allowed by these rules, service of process shall be deemed effected 20 days before the time required to respond to the complaint.

            (5) When the plaintiff files a waiver of service with the court, the action shall proceed, except as provided in subdivision (4) above, as if a summons and complaint had been served at the time of filing the waiver, and no further proof of service shall be required.
            In addition there are many Florida county small claims court web sites that state either the Sheriff or certified mail may be used for initial service of the summons. For example:

            Brevard County - Service
            You can have your summons served by the Sheriff, a process server, or by certified mail. Certified mail can only be served within the State of Florida.

            Pasco County - Service Costs
            Copies of your claim and other related documents must be provided to all defendants named in your case. You have the following options to serve your Summons/Notice to Appear and other court documents:
            * Certified Mail/Return Receipt issued by the Clerk & Comptroller (Current rates apply and are subject to postal increases.)
            * Pasco County Sheriff service fee per defendant (Out of Pasco County service costs will vary from county to county.)
            * Process Server (requires a Court Order)
            Mailing costs are payable to the Clerk & Comptroller and may be included with the filing fee and summons fee. Costs for Sheriff's service is paid with a separate check made payable to the Sheriff and is remitted at the time of filing.

            Miami-Dade County
            There are two methods which you may use to summon the other party or parties to court:
            * The sheriff or a certified process server may serve the summons and a copy of your lawsuit on a defendant within Miami-Dade County for a fee. To obtain a list of process servers in Miami-Dade County, you should contact the Administrative Office of the Courts at 305-349-7369.
            * You may attempt service of a summons on parties within the State of Florida by certified mail-return receipt requested. A deputy clerk can assist you with this procedure at any of the filing locations. There is no fee for this except the actual cost of mailing.

            I have helped several Florida seniors who have been served only by certified mail for a credit card related debt.

            And this little ditty, which doesn't have anything to do with a certified mail delivered summons, but I thought was interesting anyway:
            Effective July 1, 2010, the Pinellas County Sheriff will no longer serve summonses, subpoenas or Writs of Garnishments for non-governmental entities. It will be the responsibility of the filing party to obtain a private process server to have the necessary paperwork served.
            Last edited by WhatMoney; 12-11-2010, 08:45 PM.
            “When fascism comes to America, it’ll be wrapped in a flag and carrying a cross” — Sinclair Lewis

            Comment


            • #7
              WhatMoney, thanks for the update and detailed information. I think it varies by County, and yes, service by mail (what I called alternate service) is allowed, but I didn't know under which circumstances.

              The Pasco County one is strange though... the Clerk has to send it certified.
              Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
              Status: (Auto) Discharged and Closed! 5/10
              Visit My BKForum Blog: justbroke's Blog


              I am not an attorney. Any advice provided is not legal advice.

              Comment


              • #8
                Originally posted by justbroke View Post
                WhatMoney, thanks for the update and detailed information. I think it varies by County, and yes, service by mail (what I called alternate service) is allowed, but I didn't know under which circumstances.

                The Pasco County one is strange though... the Clerk has to send it certified.
                i have found it rather difficult to really understand why each county and in some cases, districts use different methods. it' makes it somewhat difficult to follow, that's for certain.
                8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! http://www.bkforum.com/blog.php?32727-tobee43 and all are welcome to bk forum's Florida State Questions and Answers on BK http://www.bkforum.com/group.php?groupid=9

                Comment


                • #9
                  Originally posted by SquareOne View Post
                  i recieved a letter from a plaintiff attorney representing one of my unpaid credit cards. enclosed was a DEFAULT FINAL JUDGEMENT and a blank form ( small claims rules form 7.343 ) for me to fill out, of course asking my income, check stubs etc...The letter was sent by the Plaintiff attorney and although it looks like real court papers it was not sent by the courts. also it was sent in the mail and not hand delivered. i plan on getting legal advice but would like to hear from others who may have gone through this. i plan on BK in the future but not yet as the means test is an obstacle for now. Can i ignore this letter and wait for an official letter from the courts ? any penalities ? thanks from florida
                  If the final judgment has been signed by the judge and includes the language that you are ordered to fill out the fact information sheet, than you need to either send it in, or file for BK prior to your 45 day deadline. If you ignore it, the creditor can file a motion to compel, and if you don't answer or appear at that point, you'll be held in contempt.

                  Comment

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