Mann Bracken LLP did not receive summons

[Juls]

I received a letter today from Mann Bracken LLP. In this letter it states the following.

We have been notified by our process server that you have now been served with a summons and complaint.

We have not been served with a summons. Should we send them a fax letting them know we have not been served? How can I find out if there is a court date etc?

Thank you,
Juls

[optimistic1]

I know this is off topic and I wish I could answer this. But could you if you dont mind, list the original creditor, and the time since your last payment?

[Juls]

The original creditor is Beneficial and the last payment was June of 2008.

I found the court website and it does not have a court date yet but states that they served summons on February 1st. This was super bowl Sunday and we were home all day and no one came to serve us???

I just don't know if I should ignore it or advise them by fax or certified mail that we were not served?

[optimistic1]

They do that sh** all the time, they just drop it off at your front door and say it was served. You can possibly fight it in court, by simply mailing or filing a letter with the judge. Wait for some more to post an answer, they can help you more than I. Thanks for telling me how long since your last payment. That seems awfully quick to sue you already.

[treehugger1]

Well, the ball is in your court. You now have the burden of proof of "non-service" on your shoulders. What to do? I would first speak to your court clerk and see if he/she can help you to determine what steps have to be taken. The clerks cannot provide "legal" advice, but they might be able to help you with the details of process forms. You should also see if you can find an attorney who is a consumer advocate.

In some counties in some states, it may be a moot point if you actually owe the debt. The mis-service may simply be a technicality that the judge is willing to overlook if the outcome of a suit would be the same. I know some folks don't buy into this, but try living in conservative America where judges can overrule all sorts of things (if the outcome would not be changed by some slight technical issue.)

Go to the courthouse and get a copy of the signed service. Is it signed? Are there comments written by the process server?

What does it cost to file a motion to dismiss due to illegal process in your state? If it is free or cheap, then file the motion and file with the court and serve on Mann-Bracken and the process server. Your own state rules of civil procedure will guide you as to the process. I doubt that yelling at Mann-Bracekn or the process server will get you anywhere. You will probably need to file information as related to your own state and local rules of civil procedure. I can't help you there.

The fact that these folks moved very quickly suggests that they may be willing to take anything you throw at them. In such a case, you could be headed down a long dark path. File BK and have the last laugh!

[Juls]

Treehugger1,
Thank you for the reply. I am actually planning on filing BK around May 1st.

I am an independent contractor so it would be hard for them to garnish my wages but I do not want them to come take my car.

Can they do that? I owe my car out right and it has equity in it. I live in CA if that makes a difference.

Thank you,
Juls

[treehugger1]

Tough situation. First, check with your local CAL court clerk and se what "forms" might be available.

For the purpose and education of this board, would you be willing to answer a few questions?

1) You had to have heard from Mann-Bracken prior to the suit. Did you DV them?

2) Did the CA or collection attorney attempt to contact you? Did you ignore them?

TH

[Juls]

1) You had to have heard from Mann-Bracken prior to the suit. Did you DV them? What is a DV?

2) Did the CA or collection attorney attempt to contact you? Did you ignore them? They sent a letter on Dec 18th stating they are a collection agency collecting a debt for Benefical please call them and I did not call them.

[treehugger1]

Thanks!

In general a "DV" is your request for verification of debt as allowed by the federal Fair Debt Collection Practices Act. Upon receipt of your request all collection activity must cease until the CA (creditor included in some states) sends you "verification of debt" or a copy of a judgment. In addition, you have the right to request the full name and address of original creditor (not so easy to get from CA's and JDB's as one would think.) While the FDCPA does not refer to business debts, I don't think that most creditors make a distinction when they assign the debt to CA's. So, a DV request and name/address request can gain you weeks or months. It does not sound as if you bothered.

If you go back to the letter you received on the 18th of December and read the details, I would guess that they declare "this is an attempt to collect a debt." You were probably given 30 days to request verification and name/address information. You ignored your rights and the result was a near immediate move towad suit.

You do have rights as a consumer, but those rights are only protected if you choose to exercise them. While the law may not refer to business debt, I would guess that the CA does not know what type of debt they are collecting upon, and so you should always exercise your rights.

While none of the above will protect you from an eventual lawsuit, it does level the playing field for most debtors and CA's.

[Juls]

You are correct the letter did state that. I did not ask for verification since I knew it was a valid debt. I guess I screwed that up.

Once there is a judgement can they come after my assets (bank account, vehicles, etc.) immediately or do they have to go back to get a court order for that?

If they have to go back to court to get a court order does that take a while? Just trying to see if I can delay this until I can file BK.

Thank you for all your help.
Juls

[BigJohn]

Is this a business debt? And if it is, how is your business structured?

[Juls]

It is not a business debt. It is a personal non secure loan.

Thank you,
Juls

[BigJohn]

Does your State allow service to a door step or to an actual human being?

[Juls]

From what I can tell by searching the internet it is to a human of 18 years or older at my residence or place of business (I work out of my home) or by certified mail. I will need to double check with the court clerk to see if this is correct.

Thank you,
Juls

[ssdsco]

I received a letter today from Mann Bracken LLP. In this letter it states the following.

We have been notified by our process server that you have now been served with a summons and complaint.

We have not been served with a summons. Should we send them a fax letting them know we have not been served? How can I find out if there is a court date etc?

Thank you,
Juls

Same thing happened to me. A large national creditor and the Law office of Scum and Bag got a default judgment. I went to the county clerk and got a copy of the Affidavit of Service. It says they served a person I've never heard of and has description that doesn't come close to matching anyone in my house. We were home all day. No copy was left at the door.

As soon as my attorney gets back to me I'll probably pay the $45 and file a motion to vacate. If for no other reason than the principal of the thing.