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I'm totally worried
- Thread starter mattyndavidsmom
- Start date
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being a total knucklehead here, I don't really know... "BUT"...
Isn't "Service" of a/the SUMMONS held to a different standard than service of all subsequent documents? I don't think just flopping a SUMMONS into a mailbox constitutes proper service of a SUMMONS, it may/is proper service of "Other" documents, but not a SUMMONS. My uneducated thought is, it sounds to me like it MAY be IMPROPER SERVICE of a *SUMMONS*.
Isn't "Service" of a/the SUMMONS held to a different standard than service of all subsequent documents? I don't think just flopping a SUMMONS into a mailbox constitutes proper service of a SUMMONS, it may/is proper service of "Other" documents, but not a SUMMONS. My uneducated thought is, it sounds to me like it MAY be IMPROPER SERVICE of a *SUMMONS*.
mattyndavidsmom
Member
improper service
See that was what I was thinking ...the whole way they did this was improper. I called an attorney and he looked at the file. In August of this year they "mailed" me court documents that they were going for Sum**** Judgement. Now I don't know if that included a hearing as I don't know the procedure or what is done for them to get sum**** judgement. But in October of this year sum**** judgement was given in their favor...of course...because I didn't respond or do anything....BUT I DID NOT recieve any of these mailings they claimed were mailed to me....NONE Now the summons that they keep trying to deliver is for assets. For them to determine what they can get. Wouldn't this all be improper since they didn't send me anything? They can say they did, sure...but don't doesn't the burden of proof then lie with them to show they properly got documents to me so I could defend myself? I am waiting to be referred to an attorney in my area so I haven't spoken with one that will be assigned to me yet but the other attorney I spoke with said I have 90 days from the sum**** judgement to ask for a set aside. Can I get one if they didn't follow procedure.
It will be easy to show that as they didn't follow procedure on anything. They were taking advantage of me as I was doing my own court papers and filings and they figured I didn't know procedure.
This whole thing makes me so worried...I feel like I am being bull dozed over and didn't get a chance to get out of the way...no warning. So I guess I am just wondering how you can get a set aside and what the reasoning has to be.
See that was what I was thinking ...the whole way they did this was improper. I called an attorney and he looked at the file. In August of this year they "mailed" me court documents that they were going for Sum**** Judgement. Now I don't know if that included a hearing as I don't know the procedure or what is done for them to get sum**** judgement. But in October of this year sum**** judgement was given in their favor...of course...because I didn't respond or do anything....BUT I DID NOT recieve any of these mailings they claimed were mailed to me....NONE Now the summons that they keep trying to deliver is for assets. For them to determine what they can get. Wouldn't this all be improper since they didn't send me anything? They can say they did, sure...but don't doesn't the burden of proof then lie with them to show they properly got documents to me so I could defend myself? I am waiting to be referred to an attorney in my area so I haven't spoken with one that will be assigned to me yet but the other attorney I spoke with said I have 90 days from the sum**** judgement to ask for a set aside. Can I get one if they didn't follow procedure.
It will be easy to show that as they didn't follow procedure on anything. They were taking advantage of me as I was doing my own court papers and filings and they figured I didn't know procedure.
This whole thing makes me so worried...I feel like I am being bull dozed over and didn't get a chance to get out of the way...no warning. So I guess I am just wondering how you can get a set aside and what the reasoning has to be.
There must be some small piece missing here. Failing to answer a SUMMONS would entitle the plaintiff to DEFAULT JUDGEMENT. You have stated that they were given a SUM**** JUDGEMENT. Again, in my sincerely stated lack of knowledge in this, I don't believe that SUM**** JUDGEMENT can be given without the case being in (lack of better words) process. Which to me, makes a very strong implication that someone believes (IE - Court and Plaintiff) a SUMMONS had already been properly served at some point.
Since you seem to be able to interact with the Plaintiff's Attorney, see if he is willing to produce the court's record of the SUMMONS and its claimed SERVICE upon you.
MAILING you ANY document is quite by Hoyle, again... someone (Court and Plaintiff) are operating on the assumption that there was a properly serviced summons at some point in time PRIOR to the mailings you are refering to here and now.
Last POINT here... don't think for one second that I represent sound legal advice... I am merely a everyday citizen, thrown by no choice of my own, into a federal civil case, and have only done novice research. This is only what this situation appears to be to me, with my EXTREMELY limited knowledge.
Since you seem to be able to interact with the Plaintiff's Attorney, see if he is willing to produce the court's record of the SUMMONS and its claimed SERVICE upon you.
MAILING you ANY document is quite by Hoyle, again... someone (Court and Plaintiff) are operating on the assumption that there was a properly serviced summons at some point in time PRIOR to the mailings you are refering to here and now.
Last POINT here... don't think for one second that I represent sound legal advice... I am merely a everyday citizen, thrown by no choice of my own, into a federal civil case, and have only done novice research. This is only what this situation appears to be to me, with my EXTREMELY limited knowledge.
Shucks, kmckenn, you got flammed in another post. Don't be so humble when you're right about the motion for S/J.
OP - a motion for S/J, doesn't simply imply that "the case is in process", it implies that an Answer, defendant's response, was filed. It implies that a/the defendant denied liability and the the plaintiff is telling the court "my evidence proves liability regardless of what the defendant says and there's no need to go further". They're operating on more than the assumption that there was a properly served Summons; a response is assumed, if they filed that motion.
Since you assert that you weren't served and didn't file anything, that leads me back to my question of whether they took judgment against your ex?
I think that we're going around in circles and perhaps because of language (the terms). And you haven't seen what they're trying to deliver, but the language is important in this context. We can respond to your questions, but it's becoming less clear to me that they fully address the problem.
Still, you asked about relief from the judgment. The grounds are "mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc." It's covered by Rule 60 of the Utah Rule of Court and you can find it here:
http://www.utcourts.gov/resources/rules/urcp/60.htm
mattyndavidsmom
Member
thank you
There is a judgement against me. Not my ex husband who is in Alaska. The attorney I talked to looked up the file and they did get a sum**** judgement...without me receiving ANYTHING or being able to respond. So, it seems then that I should be able to get this dismissed. Does that seem like a fair statement?
There is a judgement against me. Not my ex husband who is in Alaska. The attorney I talked to looked up the file and they did get a sum**** judgement...without me receiving ANYTHING or being able to respond. So, it seems then that I should be able to get this dismissed. Does that seem like a fair statement?
mattyndavidsmom
Member
sum**** judgement without summons?
Are you saying then for them to have gotten sum**** judgement, I should have been properly served. The court records show that they "Mailed" me documents...they don't show anything about summoning me to get this judgement. They went to the judge asking for the sum**** judgement. Me, and not my ex.
What if they simply say they "mailed" me the documents. Don't they have to prove that I "received" these documents? As I keep saying, I didn't get anything. I never received anything. They got this sum**** judgement in October, supposedly "mailed" me documents in August. Now and only now am I getting a summons to show how I am going to pay for this. Can they for instance take away my only car? That is my only asset besides my house. Or would they just put a lien on my house? What if my house sells before the lien is put on, then could they take my only car? I say that because it is worth more then the judgement and it is paid for.
Are you saying then for them to have gotten sum**** judgement, I should have been properly served. The court records show that they "Mailed" me documents...they don't show anything about summoning me to get this judgement. They went to the judge asking for the sum**** judgement. Me, and not my ex.
What if they simply say they "mailed" me the documents. Don't they have to prove that I "received" these documents? As I keep saying, I didn't get anything. I never received anything. They got this sum**** judgement in October, supposedly "mailed" me documents in August. Now and only now am I getting a summons to show how I am going to pay for this. Can they for instance take away my only car? That is my only asset besides my house. Or would they just put a lien on my house? What if my house sells before the lien is put on, then could they take my only car? I say that because it is worth more then the judgement and it is paid for.mattyndavidsmom
Member
One More Question
I still haven't heard from an attorney so I have one other question....if I ask for relief on the grounds of "mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc." will it be closed for good or could the attorneys reopen on their whim? I'm referring to Rule 60 of the Utah Rule of Court http://www.utcourts.gov/resources/rules/urcp/60.htm
I still haven't heard from an attorney so I have one other question....if I ask for relief on the grounds of "mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc." will it be closed for good or could the attorneys reopen on their whim? I'm referring to Rule 60 of the Utah Rule of Court http://www.utcourts.gov/resources/rules/urcp/60.htm
mattyndavidsmom said:Are you saying then for them to have gotten sum**** judgement, I should have been properly served.
Yes. For them to have any case whatsoever, they have to prove that you were properly served.
The court records show that they "Mailed" me documents...they don't show anything about summoning me to get this judgement.
By them "mailing" the summons, that was their way of "summoning" you.
They went to the judge asking for the sum**** judgement. Me, and not my ex.
Yes. Proof of Service must be documented with the Court Clerk. This should be part of the documents that they have on file.
Can they for instance take away my only car?
I believe for Utah they can take your car, depending on how much it's worth. For example, if it's a paid off 2000 Lexus than they might consider it. If it's a 1992 Honda on its last legs than taking the car would be worthless. It really depends on how much it's worth. And I couldn't find any exemptions for cars.
That is my only asset besides my house. Or would they just put a lien on my house?
They could.
if my house sells before the lien is put on, then could they take my only car?
See my answer above.
I say that because it is worth more then the judgement and it is paid for.
See my answer above.
Sorry it's took me so long to respond. And just like kmckenn said, I too am not a lawyer....
mattyndavidsmom said:
No, this kind of relief will only put the judgement aside and reopen the case based on you not being properly served. At that point, you'd have to prove that you weren't properly served.
To find out the proper procedures of sevice for your state, contact your court clerk's office and ask if they have any small claims court handbooks that will outline what "proper service" is. Sorry I couldn't get anything online about Utah's service procedures..
mattyndavidsmom
Member
Proper Service
Yes. Proof of Service must be documented with the Court Clerk. This should be part of the documents that they have on file.
Ok, so would proper service simply be them "saying" they mailed me? Or would they have to have sent the documents return receipt or certified to prove this? Anyone can say they put something in the mail and that's the part I worry about. I didn't geta summons and I didn't get anything in the mail. So how do they have to prove it with the court?
Yes. Proof of Service must be documented with the Court Clerk. This should be part of the documents that they have on file.
Ok, so would proper service simply be them "saying" they mailed me? Or would they have to have sent the documents return receipt or certified to prove this? Anyone can say they put something in the mail and that's the part I worry about. I didn't geta summons and I didn't get anything in the mail. So how do they have to prove it with the court?
mattyndavidsmom
Member
proper service
Ok, this is what I found for proper service:
R641-106-500. Proof of Service.
There will appear on all documents required to be served a certificate of service in substantially the following form:
I hereby certify that I have this day served the foregoing instrument upon all parties of record in this proceeding (by delivering a copy thereof in person to ) (by mailing a copy thereof, properly addressed, with postage prepaid, to ).
Dated at , this day of , 19 .
Signature
or
I hereby certify that I have this day served the foregoing document by publication of a notice thereof in the (name of newspaper), a newspaper of general circulation in Salt Lake City and County and in (name of newspaper(s)), (a) newspaper(s) of general circulation in the County of . Copies of the notices are attached to this certification.
Dated at , this day of , 19 .
Signature
Does this mean I am hosed if their secretary or whoever says they mailed it? Like I said, anyone can say they mailed something and not do it. If it were posted in the newspaper, I wouldn't have see it as I was out of town due to my son's death
Ok, this is what I found for proper service:
R641-106-500. Proof of Service.
There will appear on all documents required to be served a certificate of service in substantially the following form:
I hereby certify that I have this day served the foregoing instrument upon all parties of record in this proceeding (by delivering a copy thereof in person to ) (by mailing a copy thereof, properly addressed, with postage prepaid, to ).
Dated at , this day of , 19 .
Signature
or
I hereby certify that I have this day served the foregoing document by publication of a notice thereof in the (name of newspaper), a newspaper of general circulation in Salt Lake City and County and in (name of newspaper(s)), (a) newspaper(s) of general circulation in the County of . Copies of the notices are attached to this certification.
Dated at , this day of , 19 .
Signature
Does this mean I am hosed if their secretary or whoever says they mailed it? Like I said, anyone can say they mailed something and not do it. If it were posted in the newspaper, I wouldn't have see it as I was out of town due to my son's death
mattyndavidsmom
Member
I've been reading
Should I have gotten a summons for them to get sum**** judgement? When is a summons required and when is just a mailing of documents required? Sorry for all the questions and I do APPRECIATE all the help and responses.
Should I have gotten a summons for them to get sum**** judgement? When is a summons required and when is just a mailing of documents required? Sorry for all the questions and I do APPRECIATE all the help and responses.
mattyndavidsmom
Member
Talked to Attorney
I have talked to an attorney and he believes I can get a set aside. Anybody have any idea on how I can get help to do this myself instead of paying him 2000 that I don't have? Any help is appreciated. Thanks!
I have talked to an attorney and he believes I can get a set aside. Anybody have any idea on how I can get help to do this myself instead of paying him 2000 that I don't have? Any help is appreciated. Thanks!
mattyndavidsmom said:Ok, this is what I found for proper service:
R641-106-500. Proof of Service.
There will appear on all documents required to be served a certificate of service in substantially the following form:
I hereby certify that I have this day served the foregoing instrument upon all parties of record in this proceeding (by delivering a copy thereof in person to ) (by mailing a copy thereof, properly addressed, with postage prepaid, to ).
Dated at , this day of , 19 .
Signature
or
I hereby certify that I have this day served the foregoing document by publication of a notice thereof in the (name of newspaper), a newspaper of general circulation in Salt Lake City and County and in (name of newspaper(s)), (a) newspaper(s) of general circulation in the County of . Copies of the notices are attached to this certification.
Dated at , this day of , 19 .
Signature
Does this mean I am hosed if their secretary or whoever says they mailed it? Like I said, anyone can say they mailed something and not do it. If it were posted in the newspaper, I wouldn't have see it as I was out of town due to my son's death
Again, what did you find in the court documents. Like I said, i'm not sure what validates Proof of Service for your state so go to the courthouse and request copies of your case. When you look over the documents, you will find how/where/when they supposedly served you.
We can't make assumptions when there has to be proof of service since they did receive a sum**** judgement.