Title: January 16, 2008
Q. I purchased several Christmas gifts online to be shipped to my sister’s kids in New York. I ordered the gifts at the beginning of December. I just received my credit card bill and the same gifts were billed on my card twice. I called the online company but I am being given the total runaround. What should I do?
A. You need to call your credit card company and file a complaint. Then you need to write a letter to the company you ordered the gifts from and put your complaint in writing. Make sure you address your letter to the President or CEO of the company, and send it by registered or certified mail. Keep a copy of your letter. I would suggest that you mention you will contact the attorney general of the company’s state if you do not obtain a satisfactory result. If you haven’t received a reply within a reasonable time (give it a month), then contact the attorney general of the state in which the company is located and file a complaint with the attorney general. Not only can you get the information online, but with most attorney general’s offices, you can file the complaint online.
Q. I was sued in Superior Court. I filed a cross-complaint at the beginning of December and served it on the attorney. I have yet to receive an answer to my cross-complaint. Isn’t the “answer” time barred by now?
A. Typically, a cross-complaint has to be served on the party himself, unless the attorney informs you that he had permission to be served on behalf of his client. A cross-complaint must be answered 30 days after it was served, the same timeframe as a regular complaint. You should call this attorney and find out if it is was permissible to serve the attorney rather than the attorney’s client. Not every attorney is retained to file a lawsuit on behalf of a client, and to represent him as a cross-defendant as well. If the attorney tells you that he cannot accept service on behalf of the client, then you have to serve the cross-complaint on the cross-defendant. Hire a process server or a sheriff to do that. Even better, hire an attorney so that the entire lawsuit can be handled properly.
Maxine de Villefranche is an attorney and civil general practitioner with 15 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
Showing posts with label process server. Show all posts
Showing posts with label process server. Show all posts
Tuesday, March 24, 2009
Legal Eaze #79 Process Server Charges/ Overturn Custody Judgement/Sales Commission
Title: October 24, 2007
Q: I hired a professional process service to serve divorce papers on my wife. They attempted to serve her 3 times but were unsuccessful. Now they want to charge me more to serve her. What do I do?
A: I cannot advise you as to whether or not the process server charges are proper. After several attempts to serve personally, a process server can then serve the paperwork by substitute service i.e. on another adult who can be found at the same address as your wife, either at home or at work. The process server must also fill out a form called “reasonable diligence” to the effect that several attempts were made to effect personal service, but to no avail. Another way is to leave the paperwork in an appropriate place where your wife would be most likely to see it, such as a few feet from where she is standing if she is avoiding service, or by substitute service at a private post office box where she regularly receives her mail. A copy of the paperwork must also be mailed to your wife. It is established law that a Defendant will not be permitted to defeat service by rendering physical service impossible. If your wife resides in a gated community, by law, registered process servers, upon proper identification, must be granted access to a gated community, staffed by a guard. There is also service by publication available if you cannot find your wife’s location.
Q: Is it possible to overturn a judgment of full custody?
A: Yes it is. If the circumstances have changed, you can make a Motion to Modify custody. However, there must really be a change of circumstances. If the situation is exactly the same as when the judge made his decision and you make the motion to modify custody, the Judge could order you to pay for opposing party’s attorney’s fees. But if the situation is now different, your ex-spouse is ill, or wants to remarry an ex-con who was convicted of child molestation or something the Judge should know about, then go for it.
Q. I recently resigned from a sales position with an insurance company. They refuse to pay my sales commission because I am no longer an employee. Their sale manual clearly states that one must be an employee at the time the check is cut. We are talking about more than $10,000 here. What can I do?
A. Go to the Labor Commission and make a claim. This practice is clearly unethical. The company is violating the contract terms you surely entered into when you began working for it. The employer has a contractual duty to pay the earned commission, and you should not be penalized because your commission is paid several weeks after you earned it.
Maxine de Villefranche has been an attorney for 14 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
Q: I hired a professional process service to serve divorce papers on my wife. They attempted to serve her 3 times but were unsuccessful. Now they want to charge me more to serve her. What do I do?
A: I cannot advise you as to whether or not the process server charges are proper. After several attempts to serve personally, a process server can then serve the paperwork by substitute service i.e. on another adult who can be found at the same address as your wife, either at home or at work. The process server must also fill out a form called “reasonable diligence” to the effect that several attempts were made to effect personal service, but to no avail. Another way is to leave the paperwork in an appropriate place where your wife would be most likely to see it, such as a few feet from where she is standing if she is avoiding service, or by substitute service at a private post office box where she regularly receives her mail. A copy of the paperwork must also be mailed to your wife. It is established law that a Defendant will not be permitted to defeat service by rendering physical service impossible. If your wife resides in a gated community, by law, registered process servers, upon proper identification, must be granted access to a gated community, staffed by a guard. There is also service by publication available if you cannot find your wife’s location.
Q: Is it possible to overturn a judgment of full custody?
A: Yes it is. If the circumstances have changed, you can make a Motion to Modify custody. However, there must really be a change of circumstances. If the situation is exactly the same as when the judge made his decision and you make the motion to modify custody, the Judge could order you to pay for opposing party’s attorney’s fees. But if the situation is now different, your ex-spouse is ill, or wants to remarry an ex-con who was convicted of child molestation or something the Judge should know about, then go for it.
Q. I recently resigned from a sales position with an insurance company. They refuse to pay my sales commission because I am no longer an employee. Their sale manual clearly states that one must be an employee at the time the check is cut. We are talking about more than $10,000 here. What can I do?
A. Go to the Labor Commission and make a claim. This practice is clearly unethical. The company is violating the contract terms you surely entered into when you began working for it. The employer has a contractual duty to pay the earned commission, and you should not be penalized because your commission is paid several weeks after you earned it.
Maxine de Villefranche has been an attorney for 14 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
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