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Author Topic: Question about service OT  (Read 2195 times)

janM

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Question about service OT
« on: Nov 14, 2006, 05:59:22 PM »
A co-signer (parent) is served notice of a complaint for a judgement, by way of a notice of a certified letter left at the house (it was picked up and signed for), but the main defendant (son, who lives elsewhere) receives nothing.

1. Is that adequate notice? An answer to the complaint is expected before the end of next week.
2. If it is notice, should the answer mention that he was not served, but the parent was?


socrateaser

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RE: Question about service OT
« Reply #1 on: Nov 14, 2006, 06:44:44 PM »
>1. Is that adequate notice? An answer to the complaint is
>expected before the end of next week.

It's adequate notice for you, but if your son is an adult, and doesn't reside at your address, then it's not adequate service for him.

If your son is a minor and you have joint custody, then there's some gray area, but I'd say that because you have legal control over your minor child, that service on you is constructive notice to the child.

If your son is a minor and you only have visitation, then it's not adequate service on your son, because you have no legal control, so as to be obligated to provide notice to the child.

>2. If it is notice, should the answer mention that he was not
>served, but the parent was?

If the child is an adult or a minor and you only have visitation, then, it's up to the child or the child's legal custodian to move to dismiss for lack of effective service. If the child is a minor and you have joint custody, then it's effective service and your question is irrelevant, because the child has constructive notice.

janM

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RE: Question about service OT
« Reply #2 on: Nov 14, 2006, 07:03:15 PM »
Sorry, guess I wasn't clear.
Son is an adult (25), and resides elsewhere.

This is not related to custody. It's for a debt.

1. So, he files to dismiss the complaint? Even if I, as a co-defendant, was served properly?

socrateaser

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RE: Question about service OT
« Reply #3 on: Nov 14, 2006, 07:57:33 PM »
>Sorry, guess I wasn't clear.
>Son is an adult (25), and resides elsewhere.
>
>This is not related to custody. It's for a debt.
>
>1. So, he files to dismiss the complaint? Even if I, as a
>co-defendant, was served properly?

He can ignore the complaint entirely, because he hasn't been lawfully served.

You, however, as the co-signer, are stuck with the entire liability, and if you want to get any contribution for that liability from your son, then you will have to file a motion to join your son for contribution to the debt, and then serve him yourself.

Or, you can move to dismiss for failure to join your son as an indispensable party, and try to force the plaintiff to serve him directly. The problem with this argument is that as a cosigner, you are the only party necessary to provide complete relief to the plaintiff.

Only you are injured by not joining your son, so the court may just tell you that if you want contribution for the debt, that you better locate your son and serve him or get him to voluntarily waive personal service and defend against the action.

I'm just covering all the bases to be thorough. I really think you just need to get your son involved and either fight the action or try to settle it before it gets expensive.

janM

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RE: Question about service OT
« Reply #4 on: Nov 14, 2006, 08:49:03 PM »
I think we'll just pretend he was served and answer jointly, as we did in a letter to the plaintiff's attorney disputing the whole amount of the debt, before he filed.

Thanks for your help.


janM

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Question about service OT
« Reply #5 on: Nov 14, 2006, 05:59:22 PM »
A co-signer (parent) is served notice of a complaint for a judgement, by way of a notice of a certified letter left at the house (it was picked up and signed for), but the main defendant (son, who lives elsewhere) receives nothing.

1. Is that adequate notice? An answer to the complaint is expected before the end of next week.
2. If it is notice, should the answer mention that he was not served, but the parent was?

socrateaser

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RE: Question about service OT
« Reply #6 on: Nov 14, 2006, 06:44:44 PM »
>1. Is that adequate notice? An answer to the complaint is
>expected before the end of next week.

It's adequate notice for you, but if your son is an adult, and doesn't reside at your address, then it's not adequate service for him.

If your son is a minor and you have joint custody, then there's some gray area, but I'd say that because you have legal control over your minor child, that service on you is constructive notice to the child.

If your son is a minor and you only have visitation, then it's not adequate service on your son, because you have no legal control, so as to be obligated to provide notice to the child.

>2. If it is notice, should the answer mention that he was not
>served, but the parent was?

If the child is an adult or a minor and you only have visitation, then, it's up to the child or the child's legal custodian to move to dismiss for lack of effective service. If the child is a minor and you have joint custody, then it's effective service and your question is irrelevant, because the child has constructive notice.

janM

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RE: Question about service OT
« Reply #7 on: Nov 14, 2006, 07:03:15 PM »
Sorry, guess I wasn't clear.
Son is an adult (25), and resides elsewhere.

This is not related to custody. It's for a debt.

1. So, he files to dismiss the complaint? Even if I, as a co-defendant, was served properly?

socrateaser

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RE: Question about service OT
« Reply #8 on: Nov 14, 2006, 07:57:33 PM »
>Sorry, guess I wasn't clear.
>Son is an adult (25), and resides elsewhere.
>
>This is not related to custody. It's for a debt.
>
>1. So, he files to dismiss the complaint? Even if I, as a
>co-defendant, was served properly?

He can ignore the complaint entirely, because he hasn't been lawfully served.

You, however, as the co-signer, are stuck with the entire liability, and if you want to get any contribution for that liability from your son, then you will have to file a motion to join your son for contribution to the debt, and then serve him yourself.

Or, you can move to dismiss for failure to join your son as an indispensable party, and try to force the plaintiff to serve him directly. The problem with this argument is that as a cosigner, you are the only party necessary to provide complete relief to the plaintiff.

Only you are injured by not joining your son, so the court may just tell you that if you want contribution for the debt, that you better locate your son and serve him or get him to voluntarily waive personal service and defend against the action.

I'm just covering all the bases to be thorough. I really think you just need to get your son involved and either fight the action or try to settle it before it gets expensive.

janM

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RE: Question about service OT
« Reply #9 on: Nov 14, 2006, 08:49:03 PM »
I think we'll just pretend he was served and answer jointly, as we did in a letter to the plaintiff's attorney disputing the whole amount of the debt, before he filed.

Thanks for your help.

 

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