DerryNews.com, Derry, New Hampshire

October 3, 2013

About the Law: Paperwork can't be served via voice mail

About the Law
Andrew Myers

---- — I applied for payday loans online, but I did not go through with it because it wasn’t enough. Now, they’re calling family members and threatening criminal charges. They called my parents and left a voice-mail that their law firm had officially served me via voice-mail.

No papers, court or otherwise, have been served on me, but I’m worried because they have my current address and some family members whose names I gave on the application. Can a lawsuit be served by voice-mail?

First of all, threatening to bring criminal action is a major violation of the Fair Debt Collection Practices Act. Second, contacting friends or family members is rarely permitted. The FDCPA allows such contact only if the debt collector does not know how to contact you.

However, when they make such a call, the collector is limited only to an attempt to obtain your location information. You have a legal cause of action which, if proven, would pay attorney fees and costs.

Lawsuits must be served in accordance with court rules and no rules anywhere I’m aware of allow service by telephone. Where, as here, they know your address, the papers would have to be served by a sheriff or appointed process service physically at your address. Leaving the papers is OK; they don’t have to be physically placed in your hands.

My friend was sued in a business dispute. After he figured out how to file an answer in court, they then settled, with my friend agreeing to pay $3,500 to settle the case if the lawsuit was dropped.

But, when we called the attorney on the other side and asked for something in writing, there was no one to talk to him and something about documents needed to be done and sent to court first. Shouldn’t we get some kind of receipt or letter of agreement that the case is dropped?

I know people resist retaining an attorney and want to “do it themselves,” but here’s why you don’t necessarily save money on your own. Any civil case is, in fact, settled only with two steps, a release between the parties and a proper court filing terminating the court case.

A release may be fancied up with the title “settlement agreement.” But, whatever you call it, this is a contract between the parties bringing a full final end to the claim forever, regardless of any future claims associated with the original matter even effects unknown at the time of settlement. This is signed by all parties and is usually private.

The court case does not end until a proper document is filed in court. Sometimes it is called a stipulation of dismissal. Sometimes it is called a “docket marking.” Civil litigation attorneys know which court accepts which document. These are the papers you need to walk away from the dispute.

Andrew Myers of Derry has law offices in Derry and North Andover. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.