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TO DATE DEBTORBOARDS MEMBERS HAVE COLLECTED $376,151.12 FROM CREDITORS
AND HAVE BEATEN BACK SUITS ATTEMPTING TO COLLECT $334,281 FROM THEM.

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Author Topic: Sol after being out of the country for the last four years  (Read 1746 times)

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justin1234

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I have two questions if you don't mind.

First of all we had bad credit card debt now in collections from California. We have been out of the country for the last three years and have returned to North Carolina. Does the SOL start anew since we have been out of the country. If not does the SOL pertain to California rules or North Carolina where we now reside. NC being three years to California's four years

Secondly I have heard that some CA are taking people to court with out serving people, lying and stating that they did serve the debtor. Winning by default as the debtor would not show to court. Is there any truth to this and how could I monitor the courts to see if anyone has filed with the courts to sue us.

Someone showed up to my parents house in California and were looking for my wife. They spoke with my brother, he asked why they wanted her as she had not been there in three years. They stated that they were trying to serve her. Since then I have not had anything mailed to us about this. We have had all of our mail forwarded to a a Mail box ect in Ca for the entire time we have been out of the States.

Kind regards Justin

Mischievous Smurfy

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Re: Sol after being out of the country for the last four years
« Reply #1 on: June 20, 2008 01:26:31 PM »
It is my understanding they have to have actually attempted to do something ... filing ... attempting to serve ... in order to toll the SOL.  Not just sit on their butts for 4 years and then whine that you were not in the country.

which state applies?  I don't know but there is likely at third state at play ... whatever state was choosen in the choice of law provision.

California is irrelevant since you no longer reside there.

Kitten

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Re: Sol after being out of the country for the last four years
« Reply #2 on: June 20, 2008 02:03:00 PM »
Someone showed up to my parents house in California and were looking for my wife. They spoke with my brother, he asked why they wanted her as she had not been there in three years. They stated that they were trying to serve her.

Sounds like she's been sued in California and they are trying to serve her personally.
Is service by publication allowed in CA?
I'd call the county courthouse there and find out if there are any cases filed against you.

Rottweiler

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Re: Sol after being out of the country for the last four years
« Reply #3 on: June 20, 2008 03:08:36 PM »
(This is going to be a long post, so bear with me.)

You are now resident in North Carolina.  How long have you been resident in North Carolina?  If you have been there long enough to establish yourself as NC residents, that is now where they must serve you if this involves consumer debt as defined in law (except real estate); it apparently is all consumer debt. (My answer is based on the assumption you are permanently resident in NC now.)  The fact that litigation is being attempted by someone who is trying to serve you in California has NOTHING to do with the running of the SOL at all except to put a temporary "hold", you might say, on its running out, in this case in CA.  Since they, obviously, cannot serve you personally in California (unless they do "sewer service" and lie about it on the certificate of service) they do have two choices, one which is by mail.

To serve you by mail, the plaintiff must follow California Code of Civil Procedure,  ccp 415.30 and 415.40 (all emphasis mine):

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=415.10-415.95

Quote
415.30.  (a) A summons may be served by mail as provided in this
section.  A copy of the summons and of the complaint shall be mailed
(by first-class mail or airmail, postage prepaid) to the person to be
served, together with two copies of the notice and acknowledgment
provided for in subdivision (b) and a return envelope, postage
prepaid, addressed to the sender.


   (b) The notice specified in subdivision (a) shall be in
substantially the following form:

      (Title of court and cause, with action number, to be inserted
by the sender prior to mailing)

      NOTICE

   To:  (Here state the name of the person to be served.)
   This summons is served pursuant to Section 415.30 of the
California Code of Civil Procedure.  Failure to complete this form
and return it to the sender within 20 days may subject you (or the
party on whose behalf you are being served) to liability for the
payment of any expenses incurred in serving a summons upon you in any
other manner permitted by law.  If you are served on behalf of a
corporation, unincorporated association (including a partnership), or
other entity, this form must be signed in the name of such entity by
you or by a person authorized to receive service of process on
behalf of such entity. In all other cases, this form must be signed
by you personally or by a person authorized by you to acknowledge
receipt of summons.  Section 415.30 provides that this summons is
deemed served on the date of execution of an acknowledgment of
receipt of summons.
                                       _____________________
                                        Signature of sender

      ACKNOWLEDGMENT OF RECEIPT OF SUMMONS

   This acknowledges receipt on (insert date) of a copy of the
summons and of the complaint at (insert address).

                                  Date: ______________________
                                      (Date this acknowledgement
                                             is executed)
                                     _________________________
                                 Signature of person acknowledging
                               receipt, with title if acknowledgment
                                is made on behalf of another person

   (c) Service of a summons pursuant to this section is deemed
complete on the date a written acknowledgement of receipt of summons
is executed, if such acknowledgement thereafter is returned to the
sender.

   (d) If the person to whom a copy of the summons and of the
complaint are mailed pursuant to this section fails to complete and
return the acknowledgement form set forth in subdivision (b) within
20 days from the date of such mailing, the party to whom the summons
was mailed shall be liable for reasonable expenses thereafter
incurred in serving or attempting to serve the party by another
method permitted by this chapter
, and, except for good cause shown,
the court in which the action is pending, upon motion, with or
without notice, shall award the party such expenses whether or not he
is otherwise entitled to recover his costs in the action.


   (e) A notice or acknowledgment of receipt in form approved by the
Judicial Council is deemed to comply with this section.

415.40.  A summons may be served on a person outside this state in
any manner provided by this article or by sending a copy of the
summons and of the complaint to the person to be served by
first-class mail, postage prepaid, requiring a return receipt.
Service of a summons by this form of mail is deemed complete on the
10th day after such mailing.


They can mail you the summons and you have to acknowledge you received it within the time allowed or you can be liable for the costs of serving you another way unless you have good reason for not doing so.  Apparently one of those "good reasons" applies to you:  You live out of state, so they can serve you CMRRR and the service is considered complete after 10 days from the date of mailing, apparently (according to the CA Code of Civil Procedure) regardless of whether the acknowledgment of service is returned on a timely basis or not.

Or they can use Service by Publication (CCP 415.50): 

Quote
CCP 415.50

(a) A summons may be served by publication if upon
affidavit it appears to the satisfaction of the court in which the
action is pending that the party to be served cannot with reasonable
diligence be served in another manner specified in this article and
that either:

   (1) A cause of action exists against the party upon whom service
is to be made or he or she is a necessary or proper party to the
action.

   (2) The party to be served has or claims an interest in real or
personal property in this state that is subject to the jurisdiction
of the court or the relief demanded in the action consists wholly or
in part in excluding the party from any interest in the property.

   (b) The court shall order the summons to be published in a named
newspaper, published in this state, that is most likely to give
actual notice to the party to be served.  If the party to be served
resides or is located out of this state, the court may also order the
summons to be published in a named newspaper outside this state that
is most likely to give actual notice to that party.  The order shall
direct that a copy of the summons, the complaint, and the order for
publication be forthwith mailed to the party if his or her address is
ascertained before expiration of the time prescribed for publication
of the summons.
Except as otherwise provided by statute, the
publication shall be made as provided by Section 6064 of the
Government Code unless the court, in its discretion, orders
publication for a longer period.

   (c) Service of a summons in this manner is deemed complete as
provided in Section 6064 of the Government Code.

   (d) Notwithstanding an order for publication of the summons, a
summons may be served in another manner authorized by this chapter,
in which event the service shall supersede any published summons.


   (e) As a condition of establishing that the party to be served
cannot with reasonable diligence be served in another manner
specified in this article, the court may not require that a search be
conducted of public databases where access by a registered process
server to residential addresses is prohibited by law or by published
policy of the agency providing the database, including, but not
limited to, voter registration rolls and records of the Department of
Motor Vehicles.

In other words, they have to try to find you using publically-available sources and fail before the court can allow them to use service by publication.  They can try service by publication AND another method of service at the same time.  BUT, if the other mode of service succeeds within the time limit for the service by publication to become final, that other method is considered to be the effective one and the rules pertaining to the other form of service (not the service by publication) are then the ones they must follow to make service "good".

If they do manage to serve you?  No problem. You then would motion for dismissal from the California court because of improper venue (NC is now proper venue).



“This is a court of law, young man, not a court of justice."
~ Olver Wendell Holmes

Rottweiler

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Re: Sol after being out of the country for the last four years
« Reply #4 on: June 20, 2008 03:18:17 PM »
It is my understanding they have to have actually attempted to do something ... filing ... attempting to serve ... in order to toll the SOL.  Not just sit on their butts for 4 years and then whine that you were not in the country.

which state applies?  I don't know but there is likely at third state at play ... whatever state was choosen in the choice of law provision.

Smurfy:

1.)  They can attempt to litigate at any time and if the action is commenced within the SOL for the type of dispute and the state/location where they file (in this case, it's California) they can toll the SOL, even if such suit is literally filed at the eleventh hour of the very last day before SOL runs out (as long as court is open then)!

2.)  Choice of law provisions apply to substantive law, not procedural law.  Commencement of litigation is procedural law, so even if there is a choice of law provision involved the plaintiff would have to be able to support the contention that the SOL is substantive law in the state/venue chosen for the choice of law provision IF such provision is actually invoked and can be proven to exist (which requires the original contract be available).

In other words, should the Plaintiff try this argument, it may also be easy to attack, especially if the plaintiff is NOT the OC.
« Last Edit: June 20, 2008 03:21:11 PM by Rottweiler »
“This is a court of law, young man, not a court of justice."
~ Olver Wendell Holmes

justin1234

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Re: Sol after being out of the country for the last four years
« Reply #5 on: June 20, 2008 03:30:13 PM »
Thanks we have rented a home and have been living in North Carolina for around 6 weeks now. Not sure if that and having utilities in our name classifies us as residents or not. I will get a new Drivers License on Monday as that must qualify us as residents

I tend to think that the person that came to the house may have been bluffing about serving us. This was six months ago, and we had a continual postal address in Ca, where all of our mail had been forwarded since out last home in Ca. The letters from the creditors have basically dwindled to nothing and we never relieved any mail stating that we were being served or that attempts to find us to serve us ect.

As far as the SOL is concerned I thought G Bush had changed the laws to state that the SOL is on hold if debtors leave the country and that it is reinstated upon return. Although if this had happened it may have happened after we left the states in Dec of 04.

Kind Regards, and thanks for you time and effort with this matter, Justin

Rottweiler

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Re: Sol after being out of the country for the last four years
« Reply #6 on: June 20, 2008 03:43:18 PM »
Why were you out of the country? 

Six weeks is a very short time period to establish residency and it may not be long enough; NC law might clarify this.  The fact that you have an active "mail drop" in California complicates things; service by mail is possible if a "mail drop" constitutes the equivalent of a street address for purposes of service of process.  I saw nothing in CA CCP that would preclude such service (to a mail drop/P.O. Box) so as long as it exists, they could serve you there if the location does not reject such mail.

However, you still could try to get the case dismissed for improper venue should service succeed.
“This is a court of law, young man, not a court of justice."
~ Olver Wendell Holmes

justin1234

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Re: Sol after being out of the country for the last four years
« Reply #7 on: June 20, 2008 04:04:48 PM »
We moved to Australia to try to start anew. Things actually worked out fairly well for us there, but it was too far from family. We left Oz in feb to come back and assist with my dad who came down with Really early Alzheimer's.
Only 61 and he is at stage six of seven. Stage seven is going to be a nightmare for my mom to cope with so here we are to assist.

The Mail box etc era in Los angles is how we were receiving all of our mail overseas. We would get it forwarded weekly, it is now sent to us here in North Carolina where we also have a public Mail box.

Should we cancel the mail box in California?

I still think that they would need to post us a letter to our last know address which would have been the Mail box ect, as that is where the collection agency had been sending correspondence.


Cheers Justin

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