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Proof of Service

Started by crayiii, May 25, 2005, 03:46:50 PM

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crayiii

The family law facilitator in Spokane just sent me a message letting me know that she didn't see a "proof of service" on the other party for the June 3 hearing.

On both the Motion and the OSC I included the following:

STATE OF OREGON, County of COUNTY   ) ss.

CERTIFICATE  - TRUE COPY
   I hereby certify that the foregoing copy of MOTION/DECLARATION TO SHOW CAUSE and ORDER TO SHOW CAUSE are a complete and exact copy of the originals.
   
   MY NAME
                Respondent, Pro Se

   DATED this ______ day of May, 2005.





CERTIFICATE OF SERVICE - MAILING
   I certify that on May _______, 2005, I served a certified true copy of MOTION/DECLARATION TO SHOW CAUSE and  ORDER TO SHOW CAUSE by depositing said true copies thereof, certified by me as such, contained in a sealed envelope, with postage prepaid, addressed to the following at his last known address, to-wit:

ATTORNEY NAME
ATTORNEY ADDRESS

   And deposited in the post office at CITY, Oregon, on said May _____,2005.


   
   MY NAME
                Respondent, Pro Se


I sent it return recipt and have the return part back showing the attorney received it.  Is there something else I need to do?  I sent a message back to the facilitator but I don't usually hear back from her for a few days.

...I just got this back from the facilitator:

Mr. NAME:
 
Normally a show cause is to be personal service on the Petitioner and if service by mail was allowed, I don't think you could send a copy that has not even reached the court and been considered or signed, so I cannot tell you if the court will accept this or not.  Sorry you will have to wait and see what happens on the day of your hearing or get Mr. Attorney to agree that it is OK I guess?  I really can't help you there.


crayiii

I am considering sending this fax to the attorney:

Mr. Attorney,
This is to confirm our June 3, 2005 hearing in Spokane.  I noticed that I sent you my copy that did not have the commissioner's stamp on it.  I am aware that that oversight may invalidate the hearing on June 3.  If you plan on taking advantage of that oversight, I would appreciate a courtesy call or fax letting me know so I can save the travel expenses and re-file my motion.

I feel that my proposed temporary parenting plan is a fair one and one that is in Cortland's best interest.  I feel that the plan is one that the court will agree to and I urge you to talk to your client and explain the time and money that will be saved by stipulating to the plan.

Respectfully,

socrateaser

>I am considering sending this fax to the attorney:
>
>Mr. Attorney,
>This is to confirm our June 3, 2005 hearing in Spokane.  I
>noticed that I sent you my copy that did not have the
>commissioner's stamp on it.  I am aware that that oversight
>may invalidate the hearing on June 3.  If you plan on taking
>advantage of that oversight, I would appreciate a courtesy
>call or fax letting me know so I can save the travel expenses
>and re-file my motion.
>
>I feel that my proposed temporary parenting plan is a fair one
>and one that is in Cortland's best interest.  I feel that the
>plan is one that the court will agree to and I urge you to
>talk to your client and explain the time and money that will
>be saved by stipulating to the plan.
>
>Respectfully,
>

Has the attorney acknowledged the hearing in writing in any way?

crayiii

He sent a fax saying he see's my motion and wants to know if this means I wish to litigate.

socrateaser

>He sent a fax saying he see's my motion and wants to know if
>this means I wish to litigate.

He's jerking you around -- it's all stall tactics. You need to decide whether you want to set a new date for the hearing and serve it personally or not. You could get a certified copy of the motion and have it served personally, now, and take a chance that the court will accept the late service with the fax as evidence of "actual" notice of the hearing. But, no guarantees. You could find yourself alone at the hearing.

crayiii

Yeah, it looks like I should have used this form, then I wouldn't have had to personally served it.  

http://www.spokanecounty.org/superiorcourt/sc/pdf/NoticeMotionFamilyLaw.pdf

I'm going to get everything ready to file again and show up on the 3rd.

Do I need to refile the parenting plan and declaration?

socrateaser

>Yeah, it looks like I should have used this form, then I
>wouldn't have had to personally served it.  
>
>http://www.spokanecounty.org/superiorcourt/sc/pdf/NoticeMotionFamilyLaw.pdf
>
>I'm going to get everything ready to file again and show up on
>the 3rd.
>
>Do I need to refile the parenting plan and declaration?

If they were filed separately, then no. If they were attached to the original motion, then you should attach them all to the new motion, so the court has everything at its disposal. However, I would just ask the court to continue the hearing on the existing motion to a new date, and then serve the notice of hearing and the original motion together.

I don't remember your original motion being styled as an OSC, otherwise I would have told you about personal service.

crayiii

Okay, so what I'll do then is send him a fax tomorrow letting him know that unless I hear back from him in writting, I will continue the hearing and provide him with proper notice.

socrateaser

I checked the court rules. It appears that you only need to provide 5 days notice of the hearing (8 days, if service by mail), and only on the attorney. So, you still have time to make the June 3 hearing if you mail it tomorrow. If your first service by mail to the attorney was a copy of the order to show cause without the judge's signature, then make a copy of the signed and stamped order, and serve that one on the attorney by certified mail, return receipt requested, tomorrow (5/26). Your certified receipt is evidence to the court of the timeliness of service.

If you've already served the attorney with a "true copy" of the order to show cause (signed, stamped and filled in by the court), then you have already effected timely service.

Personal service of an OSC is only needed when a party is being restrained and there is no attorney of record representing them on the case.

You shouldn't have filed an OSC, and frankly the judge shouldn't have signed it, because everything except temporary restraining orders in Spokane Superior Court are to be filed upon motion.

So, if you get to court and there's some objection raised by your opponent, your response is that you now realize that your request should have been on motion, but the fact is that the court signed the OSC, everyone is present, and opposing counsel was served with the OSC as if it were a motion in a timely manner, so there is no reason not to proceed.

As for the attorney's fax, re litigation, your response is simply, that you wish to see your son, and you have seen no positive movement whatsoever from him or his client to facilitate this, therefore, until you see some show of good faith, you are forced to seek a judicial resolution of the matter.

crayiii

Okay, I'll put it in the mail today.  There is a service in spokane that will also personally serve if I fax them a copy, should I do that as well?  I could also fax the signed copy to the attorney.