Is this a new case? Or old
If it's new current case. And you file a reply or appear. That's a waiver of improper service. Unless you take other steps to preserve the issue
Another approach would be to not show and not answer. If your correct about the improper service the judge should notice if its obvious.
Get a copy from the Court Docket.
Scrutinize it for errors in dates, addresses, descriptions, or methods used.
Support it with Evidence showing that the Service did not follow court Rules.
Check your specific court's Rules.
In my mind,I'd focus on the Motion (supported with the above), and shift the burden back to the Plaintiff, who must then prove Service was proper at the Hearing.
Scrutinize it for errors in dates, addresses, descriptions, or methods used.
Support it with Evidence showing that the Service did not follow court Rules.
Check your specific court's Rules.
In my mind,I'd focus on the Motion (supported with the above), and shift the burden back to the Plaintiff, who must then prove Service was proper at the Hearing.
Now is the time to prepare for battle.
Service will likely be effected sooner or later, and then when that happens you will need to know about what we call The Flurry of Motions:
Motion to Dismiss
Motion to Strike
Motion for More Definite Statement
Please learn about these as soon as possible so you are not overtaken when you ARE served and the clock starts ticking.
Do not fail to know these three motions and how to use them to avoid filing an Answer, because when it comes time to file an Answer you will NEED to also file at least some effective Affirmative Defenses, because Affirmative Defenses are the defendant's power.
Service will likely be effected sooner or later, and then when that happens you will need to know about what we call The Flurry of Motions:
Motion to Dismiss
Motion to Strike
Motion for More Definite Statement
Please learn about these as soon as possible so you are not overtaken when you ARE served and the clock starts ticking.
Do not fail to know these three motions and how to use them to avoid filing an Answer, because when it comes time to file an Answer you will NEED to also file at least some effective Affirmative Defenses, because Affirmative Defenses are the defendant's power.
elise:
Yes sir, I have that in the works. It’s a stupid move on their end and I gain by slowing it down that’s why I want a hearing on it this time. And so, they can expect me to use what you taught me even though I know they can serve me eventually. I’m already preparing beyond that.
I have my Answer prepared too so once that clock starts I’ll be ready. Now I’ll work on these motions (something I never thought I would but the party doing this all have themselves to thank them. They tried something similar before and I got those dismissed by the judge also. I’m using all of it against them when I need. All learned from you Dr. Graves Thank you!!!
Nelda Whisperer:
Well, it’s not really a stupid move on their part. You’re showing up, and so in the end that will meets the intended purpose for service.
You may be able to get it dismissed, but probably not with prejudice and so the plaintiff will simply refile it and ensure you get served properly again.
The only other thing you can argue is if the case happened to be in default against you because of the improper service, you can get the default removed because of that, without too much trouble.
Now if that default ended up in property being taken or something to that effect, this is really when you want to get the details of the service so that you can get your property (money, fines, etc) back and you can argue lack of due process if this is the case.
But just arguing improper service realistically is a moot point if you are now engaged in the proceeding and property hasn’t been taken. If you just missed some deadlines, you should be able to get the court to extend your time on those.
As for proving that you were not properly served, you really need to look at the rules of your state and for the thing they were serving you. If it was initial summons, there are specific steps that need to be taken and are outlined in the rules. You then simply file a declaration or affidavit with your motion / response that you did not receive the documents in the manner required by the statutes. You also argue that most courts are willing to extend time for this situation so that the case can be heard on the merits and you then provide that case law stating such for your state.
So you simply get yourself back into the game and move forward.
Joseph Smyth:
Nelda,
Wouldn’t an equitable remedy for unjust enrichment be a way to get property back rather than bringing up a lack of due process?
elise:
Thanks Nelda, I appreciate the content! FYI It’s not my intention to get it dismissed on just improper service, but it’s beneficial for me to get this done and properly served first (and it’s not beneficial for them).
Since they started this (what I call stupid aka meritless case) it’s in their hands to do it right (and there’s more to this, also indirectly, or possibly later directly, for others, so i’ll get them to spend some time and money on it by standing up and getting them to follow the rules too).
(it’s also Pre-Answer this is all part of the flurry of motions Dr. Graves taught me in Jurisdictionary)
Yes sir, I have that in the works. It’s a stupid move on their end and I gain by slowing it down that’s why I want a hearing on it this time. And so, they can expect me to use what you taught me even though I know they can serve me eventually. I’m already preparing beyond that.
I have my Answer prepared too so once that clock starts I’ll be ready. Now I’ll work on these motions (something I never thought I would but the party doing this all have themselves to thank them. They tried something similar before and I got those dismissed by the judge also. I’m using all of it against them when I need. All learned from you Dr. Graves Thank you!!!
Nelda Whisperer:
Well, it’s not really a stupid move on their part. You’re showing up, and so in the end that will meets the intended purpose for service.
You may be able to get it dismissed, but probably not with prejudice and so the plaintiff will simply refile it and ensure you get served properly again.
The only other thing you can argue is if the case happened to be in default against you because of the improper service, you can get the default removed because of that, without too much trouble.
Now if that default ended up in property being taken or something to that effect, this is really when you want to get the details of the service so that you can get your property (money, fines, etc) back and you can argue lack of due process if this is the case.
But just arguing improper service realistically is a moot point if you are now engaged in the proceeding and property hasn’t been taken. If you just missed some deadlines, you should be able to get the court to extend your time on those.
As for proving that you were not properly served, you really need to look at the rules of your state and for the thing they were serving you. If it was initial summons, there are specific steps that need to be taken and are outlined in the rules. You then simply file a declaration or affidavit with your motion / response that you did not receive the documents in the manner required by the statutes. You also argue that most courts are willing to extend time for this situation so that the case can be heard on the merits and you then provide that case law stating such for your state.
So you simply get yourself back into the game and move forward.
Joseph Smyth:
Nelda,
Wouldn’t an equitable remedy for unjust enrichment be a way to get property back rather than bringing up a lack of due process?
elise:
Thanks Nelda, I appreciate the content! FYI It’s not my intention to get it dismissed on just improper service, but it’s beneficial for me to get this done and properly served first (and it’s not beneficial for them).
Since they started this (what I call stupid aka meritless case) it’s in their hands to do it right (and there’s more to this, also indirectly, or possibly later directly, for others, so i’ll get them to spend some time and money on it by standing up and getting them to follow the rules too).
(it’s also Pre-Answer this is all part of the flurry of motions Dr. Graves taught me in Jurisdictionary)
Claiming unjust enrichment would not be considered an equitable remedy in our court systems. Unjust enrichment would be next to fraud and could impose pretty severe damages. Getting the property back begins with determining where in the process the due process was violated because property taking in the US cannot happen without proper due process.
Claiming unjust enrichment would not be considered an equitable remedy in our court systems. Unjust enrichment would be next to fraud and could impose pretty severe damages. Getting the property back begins with determining where in the process the due process was violated because property taking in the US cannot happen without proper due process.
Joseph Smyth:
Unjust enrichment is related to equity. How would it not be considered equitable in your court system?
What do you mean that unjust enrichment would be next to fraud? Yes, if someone deceives another to take property, that would be considered fraud and it would require an equitable remedy to get the property back.
I’m currently reading a book about unjust enrichment by an American law professor, Ward Farnsworth.
JJ:
Nope wrong. It's not the same thing
I pay my taxes with all due respect. The IRS keeps on sending the forms back though. They insist on payment with money.
Joseph Smyth:
How is it not the same thing? You make a general statement without actually providing knowledge and facts as to why it’s not the same thing.
I never mentioned the IRS in regards to equity and unjust enrichment. I also never stated that payment shouldn’t be based on promissory notes or money. Can you clarify why you thought that the IRS has anything to do with what I said?
Unjust enrichment is related to equity. How would it not be considered equitable in your court system?
What do you mean that unjust enrichment would be next to fraud? Yes, if someone deceives another to take property, that would be considered fraud and it would require an equitable remedy to get the property back.
I’m currently reading a book about unjust enrichment by an American law professor, Ward Farnsworth.
JJ:
Nope wrong. It's not the same thing
I pay my taxes with all due respect. The IRS keeps on sending the forms back though. They insist on payment with money.
Joseph Smyth:
How is it not the same thing? You make a general statement without actually providing knowledge and facts as to why it’s not the same thing.
I never mentioned the IRS in regards to equity and unjust enrichment. I also never stated that payment shouldn’t be based on promissory notes or money. Can you clarify why you thought that the IRS has anything to do with what I said?
Dear Friends …
You’ve encouraged me to press on with my mission to MAKE AMERICA WISE AGAIN.
Please set aside 9 minutes to hear the audio message in this LINK https://www.frederickgraves.com/Audio/TimeToChoose.mp3
Promoting this message promotes the dream of our Forefathers, the world George Washington, Abraham Lincoln, Winston Churchill, William Penn and thousands of other wise men and women believed possible … the world I know is possible.
My message calls for a decision – the choice to adopt its simple “First Light” premise as the essential Wisdom necessary to measure and constrain the methods by which governments and their elected officers operate.
Either we share what this message presents and ACT upon it, or we foolishly abdicate to be ruled by self-interested tyrants and relegate our progeny to eternal warfare, division, and hopelessness.
I’ve made my decision.
I pray that this “First Light” premise becomes Your Vision, that you share it in your own words with many others, and that together we effectively challenge the present darkness, promoting this sacred premise until its inviolable truth is adopted by millions, guiding and empowering us to act in unity, restoring the bonds of civilization, and promoting lasting global peace!
Thank you! 😊
Here’s the LINK again. https://www.frederickgraves.com/Audio/TimeToChoose.mp3
You’ve encouraged me to press on with my mission to MAKE AMERICA WISE AGAIN.
Please set aside 9 minutes to hear the audio message in this LINK https://www.frederickgraves.com/Audio/TimeToChoose.mp3
Promoting this message promotes the dream of our Forefathers, the world George Washington, Abraham Lincoln, Winston Churchill, William Penn and thousands of other wise men and women believed possible … the world I know is possible.
My message calls for a decision – the choice to adopt its simple “First Light” premise as the essential Wisdom necessary to measure and constrain the methods by which governments and their elected officers operate.
Either we share what this message presents and ACT upon it, or we foolishly abdicate to be ruled by self-interested tyrants and relegate our progeny to eternal warfare, division, and hopelessness.
I’ve made my decision.
I pray that this “First Light” premise becomes Your Vision, that you share it in your own words with many others, and that together we effectively challenge the present darkness, promoting this sacred premise until its inviolable truth is adopted by millions, guiding and empowering us to act in unity, restoring the bonds of civilization, and promoting lasting global peace!
Thank you! 😊
Here’s the LINK again. https://www.frederickgraves.com/Audio/TimeToChoose.mp3
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