John Smith®©™
Junior Member
Posts: 2
Joined: Aug 2004
Sunday 08/15/04 12:41 PM (NEW!)
Is Certified Mail or any other service (FedEx, DHL), considered legal ways to serve a summons? Or must I hire a process server?
-------------------------
Hi. My name is John...and I'm a Smith.
KAYKAY29
Junior Member
Posts: 20
Joined: Apr 2004
Monday 08/16/04 3:36 PM (NEW!)
Quote
Originally posted by: John Smith®©™
Is Certified Mail or any other service (FedEx, DHL), considered legal ways to serve a summons? Or must I hire a process server?
The nuts and bolts of the service and summons process is that if you use a process server he is an officer of the court and he has to swear before the court that he did the job properly each time he returns a service to the court.
That bolts it down pretty tight and that way the nuts can't claim they weren't served nor easily come up with any screwball theories about how they were improperly served in most cases.
Not even the almighty wrench nor the AOC bunch can come up a way to beat a service that was properly done by an officer of the court. And even if they can and get the case dismissed somehow it won't do them any good because all you have to do is refile the case and make sure it gets done right the next time.
And if you have to refile it to get jurisdiction just add the costs of the last service on top of the debt when you file it the next time.
KAYKAY29
Member
Posts: 21
Joined: Apr 2004
Monday 08/16/04 6:15 PM (NEW!)
Quote
Originally posted by: E. Normis Debtor
I agree you're entitled to the cost if their allowed by contract, however you can't claim them to be a part of the underlying debt or you're in violation. From Veach v. Sheeks:
Veach alleged that Sheeks sent him bill collection letters that included court costs and attorney’s fees, which misstated the amount of the debt Veach owed in violation of both the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and Indiana’s deception statute, IND. CODE 35-45-5-39(a)(2). We reverse the district court’s grant of summary judgment in favor of Sheeks as to Veach’s federal claim because court costs and attorney’s fees are not a component of a “debt” under the FDCPA, affirm the state law claim decided
Like so much of the wizardry found on message boards, your theory won't hold up under analysis.
First of all, Sheeks was trying to collect on a hot check, not a contractual obligation. Secondly, Sheeks tried to tack on charges for his anticipated costs, not his actual costs.
When I said that in the event the debtor challenged service of summons and got the case dismissed the agency could refile and tack on the added costs, those costs would not be anticipated costs but actual costs in refiling and a new service.
There is a lot of difference between a case involving a bounced check and a case involving an actual contract. There is also a lot of difference between actual costs and anticipated costs.
And there is a big difference between adding it to the stated amount of the debt and adding it into demand for reimbursement for court costs.
What Sheeks did was patently wrong and if he were a competent professional he would have stated the claim for costs correctly calling them what they were.
KAYKAY29
Member
Posts: 22
Joined: Apr 2004
Monday 08/16/04 7:17 PM (NEW!)
Quote
Originally posted by: E. Normis Debtor
Quote
Originally posted by: KAYKAY29
Quote
There is a lot of difference between a case involving a bounced check and a case involving an actual contract.
Wrench, every case I've ever heard of has held that an NSF check is a "debt" for the purposes of the FDCPA.
Again, I am not the wrench and in calling me that name which is abhorrent to me you are simply attempting to insult me. You are most definitely abusing your priviledges when you continue to insult me in that manner.
Yes, a NSF check is a debt under FDCPA. But that is not why the court ruled against Sheeks. The court ruled against Sheeks because he failed to properly inform Veach about the debt and it's components and he also misrepresented the amount of the debt.
Sheeks misrepresenting the true amount of the debt at the time he made the claim. To put it plainly enough that hopefullly even you can understand it, Sheeks lied about the amount of the debt. He included anticipated costs, not the actual current and present amount of the debt at the time he made the claim.
Chas420
Member
Posts: 138
Joined: Mar 2004
Monday 08/16/04 12:05 PM (NEW!)
none of that matters, whether the costs are classified as the original debt or not, if you expend them and obtain judgment, it gets TACKED ON. i know, i do it by the hundreds a week. interest, costs aaaaannd attorney fees all tacked on the the judgment, tacked on to the garnishment, tacked on to whatever. just b/c its not included or classified as the original debt, none of that matters when you obtain the judgment. if its in the contract every judge will tack it on the judgment and then guess what, its ALL debt after that. your case site shows how nonimportant this point is. the court ruled that the amount was misstated by being umped together. so, if Sheeks would have simply stated that the debtor owed X, plus X in costs and X in fees, he would not have been in violation. boy have to remember that one, oh wait thats why we spent thousands of dollars on software that calculates all of the amounts and generates all of the documents
KAYKAY29
Member
Posts: 23
Joined: Apr 2004
Monday 08/16/04 3:27 PM (NEW!)
Quote
Originally posted by: Stiffler
Quote
.... the almighty wrench
Gee, take it easy on him. Why so much negativity? He is elderly. You're a kiss arse.
Kiss??????
EEEEEEEEEEEEEEUUUUUUUUUUUUUUUUUUUUU!!!!!!!!!!!!!!!!!!!!!
Honey, that man is old enough to be my grandpa!!!!!
E. Normis Debtor
Senior Member
Posts: 229
Joined: Jun 2004
Tuesday 08/17/04 6:37 AM (NEW!)
Stiff, how does it feel to have the wrench himself call you honey?
-------------------------
If the bona fide error defense were interpreted as broadly as defendant suggests it should be, then every debt collector could avoid the FDCPA by simply asserting that it believed its offending conduct did not violate the Act. (CAPUTO v. PROFESSIONAL RECOVERY SERVICES, INC)
Junior Member
Posts: 2
Joined: Aug 2004
Sunday 08/15/04 12:41 PM (NEW!)
Is Certified Mail or any other service (FedEx, DHL), considered legal ways to serve a summons? Or must I hire a process server?
-------------------------
Hi. My name is John...and I'm a Smith.
KAYKAY29
Junior Member
Posts: 20
Joined: Apr 2004
Monday 08/16/04 3:36 PM (NEW!)
Quote
Originally posted by: John Smith®©™
Is Certified Mail or any other service (FedEx, DHL), considered legal ways to serve a summons? Or must I hire a process server?
The nuts and bolts of the service and summons process is that if you use a process server he is an officer of the court and he has to swear before the court that he did the job properly each time he returns a service to the court.
That bolts it down pretty tight and that way the nuts can't claim they weren't served nor easily come up with any screwball theories about how they were improperly served in most cases.
Not even the almighty wrench nor the AOC bunch can come up a way to beat a service that was properly done by an officer of the court. And even if they can and get the case dismissed somehow it won't do them any good because all you have to do is refile the case and make sure it gets done right the next time.
And if you have to refile it to get jurisdiction just add the costs of the last service on top of the debt when you file it the next time.
KAYKAY29
Member
Posts: 21
Joined: Apr 2004
Monday 08/16/04 6:15 PM (NEW!)
Quote
Originally posted by: E. Normis Debtor
I agree you're entitled to the cost if their allowed by contract, however you can't claim them to be a part of the underlying debt or you're in violation. From Veach v. Sheeks:
Veach alleged that Sheeks sent him bill collection letters that included court costs and attorney’s fees, which misstated the amount of the debt Veach owed in violation of both the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and Indiana’s deception statute, IND. CODE 35-45-5-39(a)(2). We reverse the district court’s grant of summary judgment in favor of Sheeks as to Veach’s federal claim because court costs and attorney’s fees are not a component of a “debt” under the FDCPA, affirm the state law claim decided
Like so much of the wizardry found on message boards, your theory won't hold up under analysis.
First of all, Sheeks was trying to collect on a hot check, not a contractual obligation. Secondly, Sheeks tried to tack on charges for his anticipated costs, not his actual costs.
When I said that in the event the debtor challenged service of summons and got the case dismissed the agency could refile and tack on the added costs, those costs would not be anticipated costs but actual costs in refiling and a new service.
There is a lot of difference between a case involving a bounced check and a case involving an actual contract. There is also a lot of difference between actual costs and anticipated costs.
And there is a big difference between adding it to the stated amount of the debt and adding it into demand for reimbursement for court costs.
What Sheeks did was patently wrong and if he were a competent professional he would have stated the claim for costs correctly calling them what they were.
KAYKAY29
Member
Posts: 22
Joined: Apr 2004
Monday 08/16/04 7:17 PM (NEW!)
Quote
Originally posted by: E. Normis Debtor
Quote
Originally posted by: KAYKAY29
Quote
There is a lot of difference between a case involving a bounced check and a case involving an actual contract.
Wrench, every case I've ever heard of has held that an NSF check is a "debt" for the purposes of the FDCPA.
Again, I am not the wrench and in calling me that name which is abhorrent to me you are simply attempting to insult me. You are most definitely abusing your priviledges when you continue to insult me in that manner.
Yes, a NSF check is a debt under FDCPA. But that is not why the court ruled against Sheeks. The court ruled against Sheeks because he failed to properly inform Veach about the debt and it's components and he also misrepresented the amount of the debt.
Sheeks misrepresenting the true amount of the debt at the time he made the claim. To put it plainly enough that hopefullly even you can understand it, Sheeks lied about the amount of the debt. He included anticipated costs, not the actual current and present amount of the debt at the time he made the claim.
Chas420
Member
Posts: 138
Joined: Mar 2004
Monday 08/16/04 12:05 PM (NEW!)
none of that matters, whether the costs are classified as the original debt or not, if you expend them and obtain judgment, it gets TACKED ON. i know, i do it by the hundreds a week. interest, costs aaaaannd attorney fees all tacked on the the judgment, tacked on to the garnishment, tacked on to whatever. just b/c its not included or classified as the original debt, none of that matters when you obtain the judgment. if its in the contract every judge will tack it on the judgment and then guess what, its ALL debt after that. your case site shows how nonimportant this point is. the court ruled that the amount was misstated by being umped together. so, if Sheeks would have simply stated that the debtor owed X, plus X in costs and X in fees, he would not have been in violation. boy have to remember that one, oh wait thats why we spent thousands of dollars on software that calculates all of the amounts and generates all of the documents
KAYKAY29
Member
Posts: 23
Joined: Apr 2004
Monday 08/16/04 3:27 PM (NEW!)
Quote
Originally posted by: Stiffler
Quote
.... the almighty wrench
Gee, take it easy on him. Why so much negativity? He is elderly. You're a kiss arse.
Kiss??????
EEEEEEEEEEEEEEUUUUUUUUUUUUUUUUUUUUU!!!!!!!!!!!!!!!!!!!!!
Honey, that man is old enough to be my grandpa!!!!!
E. Normis Debtor
Senior Member
Posts: 229
Joined: Jun 2004
Tuesday 08/17/04 6:37 AM (NEW!)
Stiff, how does it feel to have the wrench himself call you honey?
-------------------------
If the bona fide error defense were interpreted as broadly as defendant suggests it should be, then every debt collector could avoid the FDCPA by simply asserting that it believed its offending conduct did not violate the Act. (CAPUTO v. PROFESSIONAL RECOVERY SERVICES, INC)
posted by Creditwrench at 9:39 AM
