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I'm still unclear on the jurisdictional issue. (Yes, I'm an attorney but I don't practice consumer law.) The OP never said how he learned about the alleged service of the summons. For example, in my state, you can serve anyone who is over 18 years of age and residing in the defendant's residence. When I briefly looked at CT's rules, it looked like the summons could be "left at" the defendant's last known residence. Will the defendant need to prove he was a permanent resident of FL at the time of alleged service? If so, would he not need to attach exhibits proving he was a FL resident at the time of alleged service? Also, I'm not sure proving the defendant lived in FL at the time of alleged service is sufficient to prove he was not properly served. I'd really want to see a copy of the affidavit of service. Just sayin'.
You are right that the efficacy of service is measured as of the time of service. "Last known address" is just a phrase, not a valid service technique. Service on an individual can be had in most jurisdictions by delivering a copy of the summons to the defendant at his residence. If he did not live there at the time of service there is no service. If his address is unknown, publication is required. And, in a perfect world, an affidavit with some proof of foreign residence is the best prooof of this. But, as I stated above, once you go down this road, the court is going to set this for hearing and if the defendant does not show up, he will likely lose for not showing up. When he sends an informal letter to the judge, the judge is put on notice that he may be exercising authority over a person not lawfully under his control because of faulty service. This is actually a serious matter for the judge. I have never seen a judge ignore a letter from a pro se defendant. I have however, lost a lot of objections to jurisdiction, some on pretty good facts.
If a motion is filed and litigated, it is res judicata if the case goes down to Fl on the UEFJA. If a letter is written to the judge, if he ignores it (which I doubt) it can still be litigated in Fl, if he accepts the premise of non residency, the collection lawyer will bail. Trust me, I gave the OP the right answer.
Here is the Rule in Ct.:
Sec. 52-57. Manner of service upon individuals, municipalities, corporations, partnerships and voluntary associations.
Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.
Last edited by Wilson513; 11-20-2010 at 07:08 AM..
"Service on an individual can be had in most jurisdictions by delivering a copy of the summons to the defendant at his residence. If he did not live there at the time of service there is no service."
In my state, service is accomplished by 1) hand delivering the papers to the defendant (anywhere) or to an adult that lives in the home OR 2) by certified mail, return receipt required. Affidavit of service certifying the identity of the individual served, date, time, and place is required. If no service, then motion for alternate service required. If I understand you correctly, there are states that would allow a creditor to claim service by mailing (or dropping off) the papers at the address of the debtor's last know residence? If that is correct, wow! Really. I do agree that there is no harm in the defendant writing a letter to the judge as long as he limits his appearance to contesting personal jurisdiction and you are absolutely right that if he concurrently pleas an affirmative defense, he is submitting to personal jurisdiction.
Next question, assuming the case is dismissed without prejudice, what prevents the creditor from immediately refiling in CT and serving the defendant at his current residence in FL? (I'm guessing the reason is found in the uniform act previously referenced in one of your prior posts?) TIA.
Last edited by lenora; 11-20-2010 at 07:11 AM..
Reason: deleted brackets from original quotes. Guess I'm a little ocd.
If I understand you correctly, there are states that would allow a creditor to claim service by mailing (or dropping off) the papers at the address of the debtor's last know residence? If that is correct, wow!
No, that's the opposite of my statement. The defendant must reside there at the time of service. "Last known address" is just a phrase lawyers use. It is not an acceptable method of service. It creates a presumption of correctness of service and fulfills the obligation of truthfulness in the attorney's affidavit for default judgment so that the lawyer is not actually swearing to the court that the defendant lives there. But, it means nothing from a legal standpoint as far as service is concerned.
Ohio has regular mail service, Kentucky does not. So, in my world everyone wants to sue delinquent debtors in Ohio if there are multiple addresses in both Ky. and Ohio (which is common here just like Ct. NY and NJ etc.). You start with certified mail or sheriff service then regular mail. Does Ct. permit regular mail? I don't know and it didn't seem relevant because the issue was if that was his residence in the first place regardless of how the summons got there.
Quote:
Originally Posted by lenora
Next question, assuming the case is dismissed without prejudice, what prevents the creditor from immediately refiling in CT and serving the defendant at his current residence in FL? (I'm guessing the reason is found in the uniform act previously referenced in one of your prior posts?) TIA.
No, its not in UEFJA. It is in Ct. Long Arm statute.
It is possible to get good service on a defendant by serving him in Florida under Ct.'s "long arm" statute. And, I'll look at that if it happens. But most states restrict long arm jurisdiction such that a credit card balance by a former resident of the forum state would not be able to be served in Florida. It mostly meant for litigants who have committed some act unique to the forum state like an auto accident in Ct. or ownership of property there. Second, others mentioned "forum non conveniens" or inconvenient forum and that would be a second basis to get the case dismissed.
What the creditor should do is send it to a Fl collection lawyer and do it right. But, once a case is in the hands of one collector and he gets a dead end, it often dies. Especially if the amount is small.
Last edited by Wilson513; 11-20-2010 at 08:40 AM..
Thanks to all that have provided advice, especially Wilson and Berdee, as I have learned alot from them and all of you on "Service", the SOL is still a little confusing though and it seems there is not a clear answer. I took the advice of others and asked a NACA lawyer on line with a full explanation and with one email they had the action withdrawn.
Thanks to all that have provided advice, especially Wilson and Berdee, as I have learned alot from them and all of you on "Service", the SOL is still a little confusing though and it seems there is not a clear answer. I took the advice of others and asked a NACA lawyer on line with a full explanation and with one email they had the action withdrawn.
Location: 23.7 million to 162 million miles North of Venus
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Quote:
Originally Posted by Stinger313
Thanks to all that have provided advice, especially Wilson and Berdee, as I have learned alot from them and all of you on "Service", the SOL is still a little confusing though and it seems there is not a clear answer. I took the advice of others and asked a NACA lawyer on line with a full explanation and with one email they had the action withdrawn.
Congrat's !!
It's nice to come back after being off for the weekend to see your good news. Kudo's to Bosco for suggesting you speak with a naca lawyer.
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