Please answer! Need options for Summons

Whattodo · 04-21-2008, 05:45 PM

Hi,

I really need help. I am in the state of California and yesterday my mother (who lives in CA as well) gave me a summons that she received about one month ago. I called the courthouse this morning and was told that April 16, 2008 was the last day I could respond to the summons. Now, I'm not sure what to do. I've heard that I might still file a motion so I can get the case heard in court (a judgment has not been entered, but from what I understand there does not have to be a hearing at this
point) or just contact the plaintiff directly and try to work out a
payment agreement. If I'm able to work something out with the
lawyer/plaintiff, what wording should I include in a letter? From what I understand, I should stipulate that the judgment should be "vacated". I feel I'm over my head and not sure what to do. Your help would truly be appreciated.

rastoma · 04-21-2008, 06:26 PM

How did your mother get the summons? The defendant is the one that has to be served and if there's no proof you've been served you may be able to get it tossed out.

Whattodo · 04-21-2008, 06:38 PM

It was delievered to my mother's home and the person asked that she would give it to me so she did accept it.

Whattodo · 04-21-2008, 06:39 PM

Also, I contacted the courts this morning and talked to a clerk regarding the case. Would this be proof that I knew about the summons?

Enigma · 04-21-2008, 06:51 PM

If your mother was properly served and she did not inform you and you did not timely file an answer, you may have a difficult time in getting a default judgment vacated,

If a default has not already been entered, you by some time by filing an answer ASAP, ie tomorrow morning as soon as the clerks office opens.

rastoma · 04-21-2008, 07:06 PM

I still don't see how someone can accept a summons in behalf of someone else. It sounds like you do not live with your mother from the wording in your OP. So it would be crazy if they can serve an address you don't even live at to someone who is not you and then still be held in contempt for not responding on time.

centex · 04-21-2008, 08:21 PM

Quote:

Originally Posted by rastoma

I still don't see how someone can accept a summons in behalf of someone else. It sounds like you do not live with your mother from the wording in your OP. So it would be crazy if they can serve an address you don't even live at to someone who is not you and then still be held in contempt for not responding on time.

You need to spend some time reading the rules associated with service of process.

rastoma · 04-21-2008, 10:07 PM

I'm not disputing the fact, just saying it's crazy that they are allowed to it.

If a default judgement does get entered, rule 317 of the process laws in NY says he'll have a year after the fact to show he didn't receive the summons in a timely manner:

Rule 317. Defense by person to whom summons not personally delivered.

A person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense. If the defense is successful, the court may direct and enforce restitution in the same manner and subject to the same conditions as where a judgment is reversed or modified on appeal. This section does not apply to an action for divorce, annulment or partition.