served summons-- what's next?

Zwicker & associates is a hard collection agency to deal with. The CA will send the account to your creditor who in turn has to file a case against you. You will receive notice from the court before any legal actions take place.

Did you get the details of the debt in writing from this CA? You must have the accurate picture of your account and make sure that this agency is the one to legally accept payments from you.

Send a debt validation letter to the CA in writing before your account is sent back to your creditor. Once your letter is received by them, no actions can be taken against you till the details are served.

Thanks for the reply-here are the details so far. Debt is 2 1/2 years old from Cap 1. Zwicker picked it up in 2005. We found summons taped to our front door. Summons says we have 30 days to answer- 30 days are up this week. I called Zwicker and said we are willing to make monthly payments. He replied that they want to continue with the suit unless we pay it off in full. There was no date to appear in court. We are not disputing the original debt. What happens when this 30 days is up to "answer". Does that mean they get a judgement right away or does a court date still have to be set?

Should I send them a payment anyway and indicate that I will continue making monthly payments. If the cash the first check can they still go ahead with suit? I live in NY State.

A summons taped to your door??? That is not normal practice...you should be 'served' the summons, by a police officer...not have it taped to your door. Or you should recieve something by mail. That is very strange to me...I would check more into that summons thing.

I contacted the district county clerk and he said they are allowed to do that. You have 20 days to answer if it's served in person and 30 if it's left at the door. What I was surprised at was the lack of details in the summons. The clerk say I can only file an "Answer" if I am disputing the debt. I am not disputing it. What I am trying to do is set up a payment plan to avoid going to court. I can't pay it if full. If they get a judgement will the court set up a payment plan or will I be required to pay in full? I am concerned about protecting my house and car.

Most likely the court will set up a payment plan...if I am correct, I believe they can only take 25% of wages after taxes, but I think the judge takes into consideration your living expenses. Also, I would keep a log of all the calls you have made to them offering a payment plan, it would be great if you could record your calls. And take with you to court the proof that you paid most of it, and that you tried to make payment arrangements. This CA is wasting their time, the judge will probably see that. Just make sure you show up in court. Some of this idiot CA's will sue you, then never show up themselves...it would be great if that happens for you.

There was nothing in the summons about a court date. The summons was signed by the clerk on jan 3 and it says I have 30 days to answer. When do I hear about a court date and how long does that usually take.

SJ, you really should contact an attorney for some assistance. The summons, if real should have a court date.

Quote:

I wonder if the county clerks office would be willing to peak at the summons and tell you if it is even real...because doesn't it have to go through them? I am not real familiar with summons, but I would try that.

SJ- I just sent you a pm

TMD

SJ won't receive any PM from you because he is not logged in the forums. Guests do not have the facility of sending and receiving PM.

SJ, you can join the board and become a member. You will have a good time with the members.

Ok, was not aware of that...thanks for the info.

wow, no court date, guess they can do things differently but I've never heard of this. When I first read your post, between the fact that they taped it to your front door and then didn't list a court date, I would have thought it was bogus. I learn something new everyday! what would be the point in not having a court date? This way they can put fear in you and you'll do what they say? I'm not familiar with this at all. Anyone else ever heard of this? I had a summons served on me in November, the sheriff woke me up bright and early on a saturday morning. And it had a court date, of exactly a month from that day. I was to contact the lawyer on the paper. It went to court because I didn't have the money to pay it in full, but lawyer already asked me for an agreed set payment on the phone before hand and they just took that to the judge. everyone was happy--well besides the fact that I now have a judgement on my credit report for something that I was already paying to original creditor on! shirley

Depends on the State. Assuming its the same as in mine then the following applies.

Yes they can tape it to your door and I would highly advise calling the court to find out if a date has been set. If not then you will be notified.

This is actually can be a good thing if the creditor was not willing to work with you. I would tell the judge that when you appear. The judge will decide what the appropriate amount and payment plan will be.

Definelty show up and tell the judge how hard these people have been to work with. If you miss your date then the creditor will get whatever they are asking for and your wages will be garnished if you cannot pay the full amount.

thanks Glynnie11. I went to the court clerk yesterday and no date has been set yet. He said that when the date is set it could be 3-4 months from now. Should I send a registered letter to Zwicker offering to send in monthly payments as proof? Should I send one check to see if the accept it and cash it?

Do the judges usually go for payment plans or garnishment? I have a fairly new car with no loan on it and I don't want them to take it to force a sale on it.

My experience with courts and stuff is that they usually will not take your vehicle...as long as it is your only one. You have to have a vehicle to get around and a roof over your head...I doubt the judge would touch those things.

we have three vehicles. 1 for me and one for my spouse (who also works) and an older car for my son who starts driving next year.

I thought usually, after a collection agency tries to collect the debt, it went back to the original creditor for them to decide what to do. If they wanted to go on and sue you, they would hire a lawyer. BUT I thought the lawyer would talk to you first and let you know that they had been hired to take the case and try to get the money from you again before going to court? In other words, I didn't know it went quite so fast, lawyer then court, I thought there was a between time where the lawyer tried to get you to pay before you went to court? shirley

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What started this was they got my spouse on the phoen in october an we told them to contact us by mail only. They said we had to give them an answer right away or they would take us to court. So my spouse said "go ahead" and hung up. They are using that conversation as the basis for going to court now. When I called them and said "We don't want to go to court, we want to start paying it off" Zwicker said " We are just doing what your spouse requested in october" Either pay in full now or see what the court says but by that time there will be extyra legal fees added on such as the Zwicker attorney who gets $300 per hour. I would think that they would rather take a payment plan than go to court but so far they won't go for it over the phone. The summons was "served" on Jan 3 and the 30 day period to "Answer" is up friday. The court clerk said the only valid "Answer" is to dispute it. We are not disputing it we just can't pay it all at once. I am guessing after friday I will get another notice with a specific date to appear. I don't think they can get a judgement without me getting a chance to appear before the judge.

Does Zwicker or Cap 1 need the judgement in hand before they can garnish, or freeze a bank account or can they do that before hand?

SJ

You must take some legal advice from a lawyer. There are still some drawbacks of Zwicker and your lawyer will be able to ascertain them proficiently.

For any judgment to take effect, you will have to appear in the court and present your story. Only after the judge evaluates your financial situation, he will fix up a payment plan. A lawyer will be helpful here because he will present your case more accurately and cover the basis

Good advice but part of the problem is I can't afford a lawyer. If I could afford a lawyer I would take that money and pay off the original debt.

Until I appear before a judge is there any chance of a "surprise" bank account freeze, garnishment or lein on my car or home? Is everything "hands off" until I appear in court?

It varies from one state to another since each has its own laws regarding judgments. You must talk to the local AG's office and know the fact regarding this matter. In most of the cases, you are right, everything is hands off until you appear in the court. But you should confirm this fact with the AG's office

Does the collector have to accept my partial payments? No, they do not and many of them will claim that they won't accept a partial payment. Collectors want you to send them a lump sum payment and they don't care if you have to borrow it from a relative, skip your car payment or take a cash advance from your credit card. So they use very aggressive tactics to scare you in to paying the debt in full as quickly as possible. But the smarter thing to do is to pay them only what you can afford to pay them. Keep paying your house and car payments, don't borrow money from relatives or your credit card and pay them only what you can afford each month. Send it in every month even if they keep sending it back. Keep proof that you've been trying to send them money. This will significantly reduce your odds of being sued, as most collection attorneys know that a judge, when presented with evidence that you tried to pay the debt, will yell at the plaintiff for wasting his time with an unnecessary suit when the defendant was trying to pay the debt. Eventually, most collectors will give in and accept the partial payments.

Hope this helps. Do a Google on new york state attorney debtor laws.

the easiest thing to do would probably take the alleged summons to the Courts Clerks office and presnt it to them and ask them if it is in deed official or if it is made up. If made up, this would begin to build a case against them for false representation and false threats of legal action. If it is indeed officialm then they can give you first hand information on how to proceed next.

I did go to court. Clerk said it'd valid. It's was like pulling teeth to get any information from the clerk. All I wanted to know was some procedure questions like "what happens next". The clerk finally said to document the attempts to offer a payment plan and tehe judge will take that into consideration. At some point I will be notified of a future court date. They could not give me a timetable.

SJ, try sending Zwicker a written offer to settle the account with a payment plan you can afford. Ideally if you can swing it you could pay the debt over the time until the court date. If that wont work then propose what you can. If they see something in writing, something that they can show the creditor, then it may work. if they don't accept it, at least you have something to show the judge in writing. Showing up for your court date, with or without an attorney is the most impartant thing you can do if you cant pay it off. On emore thing, try searching the New york state bar for legal assistance. I fyour income is low enough, you may be able to find free or low cost legal help.

The door bell rang after 6 in the evening, someone asking for me. Well I asked this person what this is about, he told me he didn't know and that he just serves the summons. I then asked him who it's from he then told me it was from capital One. I told him she isn't here, I wasn't about to open the door, told him to leave it in the mail box, he hessitated and asked me when is she usually here, I said I don't know. I told him leave it in the mail box, he then told me he would try another day.
Something doesnt add up......sure I owe, but have no income, it's just the way it was done.
I live in Southern California

Lousie, It is not prudent to avoid a summons. It will ultimately go against you if you don't answer it within the mentioned time period in the summons. If you don't file an answer then the plaintiff (or creditor that filed against you) will get a default judgment against you and you have to pay the debt in accordance with the judgment.

It is better if you contact your creditor and try to settle the debt with them outside the court.

Another way is there to avoid any judgment against you and that is bankruptcy filing. If you file bankruptcy then any form of judgment will become ineffective.

I was scared, and well after I cried some, I looked out and there was the summons on my door. The date has 12/11/08 today is the 16th,does this mean I have to go by the 30 days starting from the 12?11?08? instead of today's date? So I have the summons now, are they allowed to serve you after 6 in the evening?
I have no clue to any of this, so do I file an answer if I want the Judge to know I have a financial hardship? I only get child support, I don't own my car, don't own a house. Could the judge make a lower decision on my part? If I file within the 30days.
I see that you state that it's better to contact the creditor to settle the debt before court. If they agree (which I doubt) to a small monthly payment or a lower one lump sum payment, then I don't have to attend court? Im I correct? sorry all of this making go crazy. Would I have to inform the court that a settlement has been reached?

Did a CA file suit against you or was it really from cap1? I would answer the summons and take my chances in court with the judge. If he grants a judgement against you, you will probably have to pay less money than the collector would ask, but they have to accept whatever amount the judge says. What can they do? You can't be arrested and they can't get money that you don't have.

It was a C/A representing Capital 1 ( Legal Recovery Services Inc. in San Diego)
Court Papers have the date 12/11/08 but I was served yesterday, do I go to the courts and ifnorm them or do you think the process server put the date on one of his papers?
I talked to someone who went through this with another C/A he called them and made arraingments.
should I see if this particular C/A work with me so I don't have to go to court.?
And if I do go to court, is the Attorney from Legal Revovery System there also?
They way I took it on the summons, I could be responsible for for the court fees and Attorney fees. I Don't get that because Legal Recovery only charges the clients in this case Capital One a fee if they get their money. So they are getting paid twice?
I looked at some forms on the computer and yet again I can't understand these forms. Is it better to go to the Court Clerk, and get the forms from them, will they explaine what I need to do.
If I do go in front of the Judge will he take into account my financial hardship, and the reason I hadn't been working for some years was in fact both parents were ill, recently my father passed.
The only income Im getting now is Child support, what would the Juge order.

I'm going insane, What a Christmas Present..........

You could try to work out a payment agreement to avoid court. One thing you need to find out as you said, if they can legally add attorney and collection fees to the amount owed. If it is not in the original contract or permitted by law then they can't. Also if they do not have the original signed contract, they can only charge interest as permitted by state law.

Do the Attorney/Legal Recovery Services Inc. in San Diego attend the court hearing also?
I shouldn't have to pay Attorney fee's, I'm not the one who hired them Capital One.
On the summons I read that if needed as a witness he would come down to testify, but does a rep come ?........

I know I qualify for the fee Waiver, but OMG you have to fill out a lot on the form.
Wondering if anyone out there has been sued by Capital one and been represented by Legal Recovery Services Inc. in San Diego and had to attend San Bernarino County Courts.? What was the outcome?
I have others telling me to make sure I go to court because the judgement won't be as much as what they are asking. But yet it will be on file that I was sued..........

Ok the summons that was left on my door, did not have the official stamp, and aren't you supposed to sign for it?
The summons was left by some young guy, not a Marshall.

There should be a docket number on the summons, something like 0023cv3345. If you find a docket number call the court house to make sure it is real. Otherwise bring it to the courthouse and show them.

I took the summons and showed it to the clerk,its real but there isn't a docket on file. She told me they havent filed yet,that's what the 30 days to respond is. I got the Fee waiver form and the proof of service form. But I can't afford to hire someone or go all the way to San Diego, I'm hours away. Can this form be used if my sister boyfriend fills it out and sends it Via certified mail? The Fee Waiver form is like applying for a loan.........Wow !!!!

You have to be sued in the county where you live, not a court in another county. If they are suing you in another county, motion the court to have it dismissed for improper service.

That should be a MTD for Improper Venue

I'm from California, and in the San Bernardino County area, so I've been sued in the proper county. But when I file my answer and then serve Legal Recovery System Inc. in San Diego they of course live in another County. The court clerk gave me a form "Personal Summons", but like I've stated about can't afford to get a process server. The clerk didn't know that the Plantiff was in San Diego. I looked up froms and there is one Via certified mail, as long as I'm not the one filling it out and sending it.
This mess is taking a toll on my health.......

I'm hoping I can use the Via certified mail instead of the Personal. It's a lot cheaper than hiring a server.
Do you think I should send a letter to the Attorney stating I'm in a financial hardship and I could only afford 20 per month, which is being taken from my Court Order child support.and if I default that to put back the interest.......and see what they say?

It's the same one but this time today 12/20/08 I recieved the summons through the mail, but it was not certified.
Can anyone one out there, show me a link where it clearly states the proper service of a summons in Southern California. I'm either told this way or that way, or I've read places and it's all confusing to me.

Did the best I could. go here:

leginfo.ca.gov/cgi-bin/calawquery?codesection=ccp&codebody=&hits=20


CODE OF CIVIL PROCEDURE
SECTION 414.10




CODE OF CIVIL PROCEDURE
SECTION 417.10-417.40



417.10. Proof that a summons was served on a person within this
state shall be made:
(a) If served under Section 415.10, 415.20, or 415.30, by the
affidavit of the person making the service showing the time, place,
and manner of service and facts showing that the service was made in
accordance with this chapter. The affidavit shall recite or in other
manner show the name of the person to whom a copy of the summons and
of the complaint were delivered, and, if appropriate, his or her
title or the capacity in which he or she is served, and that the
notice required by Section 412.30 appeared on the copy of the summons
served, if in fact it did appear.
If service is made by mail pursuant to Section 415.30, proof of
service shall include the acknowledgment of receipt of summons in the
form provided by that section or other written acknowledgment of
receipt of summons satisfactory to the court.
(b) If served by publication pursuant to Section 415.50, by the
affidavit of the publisher or printer, or his or her foreperson or
principal clerk, showing the time and place of publication, and an
affidavit showing the time and place a copy of the summons and of the
complaint were mailed to the party to be served, if in fact mailed.

(c) If served pursuant to another law of this state, in the manner
prescribed by that law or, if no manner is prescribed, in the manner
prescribed by this section for proof of a similar manner of service.

(d) By the written admission of the party.
(e) If served by posting pursuant to Section 415.45, by the
affidavit of the person who posted the premises, showing the time and
place of posting, and an affidavit showing the time and place copies
of the summons and of the complaint were mailed to the party to be
served, if in fact mailed.
(f) All proof of personal service shall be made on a form adopted
by the Judicial Council.


417.20. Proof that a summons was served on a person outside this
state shall be made:
(a) If served in a manner specified in a statute of this state, as
prescribed by Section 417.10, and if service is made by mail
pursuant to Section 415.40, proof of service shall include evidence
satisfactory to the court establishing actual delivery to the person
to be served, by a signed return receipt or other evidence;
(b) In the manner prescribed by the court order pursuant to which
the service is made;
(c) Subject to any additional requirements that may be imposed by
the court in which the action is pending, in the manner prescribed by
the law of the place where the person is served for proof of service
in an action in its courts of general jurisdiction; or
(d) By the written admission of the party.
(e) If served by posting pursuant to Section 415.45, by the
affidavit of the person who posted the premises, showing the time and
place of posting, and an affidavit showing the time and place copies
of the summons and of the complaint were mailed to the party to be
served, if in fact mailed.


417.30. After a summons has been served on a person, proof of
service of the summons as provided in Section 417.10 or 417.20 shall
be filed, unless the defendant has previously made a general
appearance.


417.40. Any proof of service which is signed by a person registered
under Chapter 16 (commencing with Section 22350) of Division 8 of
the Business and Professions Code or his employee or independent
contractor shall indicate the county in which he is registered and
the number assigned to him pursuant to Section 22355 of the Business
and Professions Code.






414.10. A summons may be served by any person who is at least 18
years of age and not a party to the action.

Thanks for the information....This link is a good one to keep handy......

Ok......My eyes are going cross eyed right now from all the reading. Since I cannot afford to hire a process server or find a friend to go all the way to San Diego. I am filing my answer via mail, question is, and this may seem pretty stupid, but hey I've been going through a lot.
Here it goes, does the person, who will be sending it out, does he or she have to be a San Bernardino coutny resident? or who ever the person I pick be a resident of that county he or she lives in?

OK I got a little lost here. Are you in San Bernadino county or do you want to mail something there?

I am trying to figure out the question you are asking, but if you want to mail your answer you do not need someone to mail it for you unless you have an attorney, then he would mail it for you. The above law only applies to the service of a summons.

Is that what you wanted to know? I tried to look thru the laws and I can't see where it says you need someone else to file your answer for you.

I live in the San Bernardino County area.....(To File an answer) The Clerk gave me a paper and it says Proof of Personal Service, and that " I can't fill it out" someone else needs to. But none of my friends I asked wants to head out all the way to San Diego, I can't afford to hire someone.
So I want to mail it, the form the clerk gave me won't work. But I did find a form "Proof of service by mail", late last night or should I say early this morning...(Ugh)

Below is what I was looking at....I get it now I think......lol

1. I am at least 18 years of age and Not a party to this action and I'm a resident or employed in the county where the mailing took place.

Anyone one out there know of a link where it has a sample Answer form for "Proof of Service by mail"
You know how to PROPERLY fill it out.....Step by step for dummies like Me :)

1.Could I get an extension to fill my answer? to get some free legal aide, you have to make an appointment, there is a wait.

2.How long does it take to get a court date after you file your answer?

Curious I'm about to propose a payment plan to the Attornedy/Collector and will be faxing it,(So I can have record) also sending via mail. My question is "Can we fax our answer" when it comes to a summons? I mean I've searched and I haven't found that you couldn't....