Expert: Regan Shinski - 7/30/2010

Question
QUESTION: Hi there.  Thanks for taking time to answer my question. So about 2 weeks ago, I received a summons for 3 parking tickets I believe I got at a University in Washington State ( I do realize I only have 20 days. The collection agency has added attorney fees and service fees to the original bill, and refuse to accept my offer to pay the full balance.  I just realized, however, when I called in today, that the bill is actually for my father- we both have the same name and address- however, I believe the tickets are probably mine.  The account representative says that we both need to call in to clear this issue up.  However, since it is their mistake in the first place, can I just have my father call in and say the debt is not his (and make sure they take it off his credit score) ?  Would the collection agency have to start all over again from the first place?  Could they not be able to take me to court since they technically sent the summons to him and not me? I am worried also because the 20 days are almost up!  Thank you so much, I really appreciate it.

ANSWER: Hello:

First of all, I am assuming you are strictly talking about a civil debt and not a criminal parking violation.  This entire response is based on that assumption.

I'm also a little confused about the summons.  You said "you received" a summons but later said it was technically sent to him.  This is a key.  Whoever was sent the summons needs to show up at the court or make alternate arrangements with the COURT prior to that date.  If not, whoever was served is going to get a default judgement on their credit.  These are nasty to deal with, you don't want them if it can be avoided.

Then, whoever was served has present a defense.  If it was your father who was served and he can prove it was not his bill, the case should be dismissed.  He also should not have to answer questions about you, only that the bill is not his - like where you live, your SSN, etc.

YOU should look up the servicing requirements in your state and for this court.  In some cases, sending a simple letter is enough others need to send a process server.  You don't want to have a situation where you THINK you were not properly served, only to get a default judgement against YOU because your father showed up in court instead of you.  The key again is whoever was LEGALLY served needs to show up for that court hearing or make other arrangements with the court - not the creditor.

If this collection agency has put a collection account on your father's credit reports, and it is clearly not his debt, they need to take it off - quickly!  He needs to send a dispute letter to the credit bureaus directly.  The collection agency has about thirty days to correct it.  He will receive a letter back from the credit bureaus telling him what they did.  If they didn't take it off and it is clearly not his debt, this is a MAJOR violation of the FDCPA and likely gives your father a strong lawsuit to collect damages from the collection agency.

BTW, one more thought on the court issue.  You may be able to complete SOME of the motions in advance over the phone or internet.  Most motions however will need to be done on site.  Your father may be able to get the court case dismissed before the court date by saying he either was not properly served or the wrong person was served.  These procedures and results will vary by court, but it may be better to just go down there in advance rather than take your chances on the court date.  You never can 100% predict what a court may do and, like I said, judgements are not things you typically want to be in a position to try and reverse.  You can also likely ask for a delay or continuance to give you more time.

Good luck, it's a little bit of a confusing situation for me to respond to, but I hope this helps.

Regan

---------- FOLLOW-UP ----------

QUESTION: Hi there.  Sorry to bother you again, but I just wanted to follow up on a few things if you don't mind.  First off, yes, I was properly served, the papers were handed to my mother who accepted them.  So basically, since they have these tickets under my fathers name, you would recommend my father calling them (I can't send a letter, because I only have 4 days left until my 20 days are up) and notifying them that these are not his tickets, and that he never parked there, and that that is not even his car, and make sure that he does not say anything about me, although they should already know that the tickets are probably mine, since when I was talking to them I said they were probably mine(*see note below).  If he does this, would he have to set up a court date to go?  So my father should go down to the courthouse and show them his summons, and explain the situation, correct? And possibly sent up a date to go to court before the 20 days are up (I'm not even sure if he will have time, because I only have 3 or 4 days left, and he works tomorrow and they are closed I believe on the weekend) ?  I am very scared that they will then just change everything on the account, change his social security number and date of birth to mine, since I have another account with them, which I have just paid off. *Note: I should note, however, that I never straight up admitted to the tickets being mine, my girlfriend talks to them over the phone on my behalf (she's better at it!), and she has said that they are probably mine.  I want to avoid a default judgement at all costs, I don't want to further damage my credit score or my fathers!  But I also really don't want to pay their extra 250 dollars of fines!  Sorry for all the questions, I just want to make sure I do things correctly!  Thank you so much, I really appreciate it!

ANSWER: Hi:

I believe this updates make it worse for both of you :(  If the court papers are in YOUR name, YOU are at risk for the judgement.  It doesn't matter whose tickets they were or who's name the tickets are in.  You were served, YOU will get the judgement if you don't show up or make other arrangements (continuance, dismissal, etc.# with the COURT directly.

I am also a little confused how this works in your state.  If they are parking tickets in your father's name, did he fight them criminally?  In other words did the state, local, or traffic court find that these tickets were legitimate?  This could have just been done by ignoring them, but the proper venue to fight them likely was in the traffic court.  The reason is traffic court finds guilt (or innocence) "beyond a reasonable doubt" where civil matters are by a "preponderance of the evidence" - which basically means 51% likely.  The bottom line is that if a traffic/criminal court found your father "guilty" of these tickets, he has no basis to win the civil case.  Getting both of your criminal and/or driving record will likely answer this question if you don't know.

YOU on the other hand can likely show up at the hearing (I would try and get information ahead of time as previously written) and say they are not your tickets because they are in your father's name.  This would likely dismiss this case but throw the burden back onto your father.

The exception is if they claim you have entered into a new civil contract to pay the fees.  Then it becomes a simple contracts case and it really doesn't matter whose name the tickets are in or who committed the violations.  If they have a contract with you to pay $XX.XX for any reason - even for your "father's" tickets - they can try and enforce it on you through the courts.

I would seriously look into getting a continuance of this court date.  Some courts grant them more liberally than others.  Some need medical reasons, others you can say you are gathering more evidence.  Regardless, make sure you work it through the court, not contacting the creditor and saying you need more time.

Good luck.  It's a confusing and interesting case - although I know it is very stressful for you.  Please keep me advised.

Regan
mbscompany@aim.com

p.s.  To clarify, you had mentioned having your father call the court and say they are not his tickets.  He likely will not get very far with this.  YOU were served and YOU have the hearing.  Technically, your father has nothing to do with the summons or court date.  He will not be able to change or petition the court for anything.  You must do this.

---------- FOLLOW-UP ----------

QUESTION: Ok Thank you so much for all of your time!  I do really appreciate it!  However, I'm sorry, but I am still a little confused.  Your second answer seems very different from your first.  Since we both have the same exact name, the court papers would technically be in both of are names. It is confusing who they sent the summons to but when I call them (the collection agency) they inform me that it is not my account, because the birthday and the social security numbers don't match up, but I know the birthday they have on file at the collection agency is my fathers. I never paid the parking tickets, because I went through a phase in my life where I just didn't care and didn't pay anything (which I have been working very hard to fix this year!) and thats why they went to a collection agency. Also, the court couldn't find my dad guilty, because they were my tickets, and not his. If I went to the court to ask for a continuance, would I have to file an answer to the summons, or would my dad have to? Or would I have to at all (I never filed an answer because I was never going to go to court because its too damaging to my already horrible credit score)? Also I have not agreed to pay the tickets at all, only over the phone (well, my girlfriend) who offered to pay everything except the lawyer fees.  I'm still not sure what to do really.  Sorry for bothering you again.  Thank you.

Answer
Hi Adal:

This is really too confusing for me to follow.  You wrote in your second post "So basically, since they have these tickets under my fathers name..."  I don't understand that because now you wrote they didn't "find my dad guilty, because they were my tickets."

I understand you physically committed the parking violations but who were the tickets WRITTEN TO by the police?  Someone was found guilty, didn't show up, or didn't pay and was found guilty of the parking violations.  Was that in YOUR name or your father's name?  Did the error to get your father's name tied occur at the point of the police writing the ticket, at the court hearing on the guilt of the tickets, at the collection agency, or at the servicing of this summons?

At this immediate point, it doesn't really matter. First, all that matters is the summons.  If you guys have the exact same legal name (no jr or sr?) and the summons was issued in a way that basically serves both of you, you both are potentially on the hook.  If you don't know who was served the summons, obviously I do not know and I wouldn't trust the court or collection agency to get it right.

So, if the summons was issued in a way that a reasonable person would think THEY have been served, that person has to go or make arrangements with the court in advance.  SO --- pretend you didn't exist and this arrived.  Would your father reasonably assume the summons was for him?  If so, he needs to deal with it.  THEN - assume your father doesn't exist.  Would a reasonable person assume YOU have been served?  If so, then YOU need to go as well or make arrangements in advance.

I do not believe there is a loophole here to get you both off the hook without doing anything - especially if the summons came to "both of your names" - because they are the same name.  The collection agency has his info linked to the debt but it sounds like you were likely found guilty of the criminal parking violations.  This puts you both at risk.  It seems a reasonable person could assume you were both or either one - served.  I don't know the defense without knowing who was legally served.

That is the bottom line, you need to find out who was legally served.  Whoever was legally served needs to make the proper arrangements and prepare a defense.  If it is your father, he basically says they are not his tickets and shows the criminal adjudication showing they are your tickets.  That will get him off this case.  If YOU were legally served, your defense is weak because you were already found guilty beyond a reasonable doubt in another court.  Your best defense at this point is if you were not legally served.

The court should be able to answer the question of who was legally served.  Explain the situation.  If they can't get you the information, petition for a continuance.  You don't need to give a long answer, just there are two people with the same legal name at that address and the servicing papers did not clarify who was served and therefore you have not been able to make a proper defense.  You don't need to answer or volunteer information about the guilt or conversations with the collection agency or who is linked to the collection agency's records.  The bottom line is WHO WAS SERVED?

If you can't get this accomplished in the court-ordered time, you both need to respond to the court's demands if you BOTH could reasonably assume you were served - as described above.

My point on all of this is the most important factor - again - is WHO WAS LEGALLY SERVED?  Until you know that, the direction of WHO does WHAT in terms of a defense cannot be decided.

Also, at this point you are focusing too much on what the collection agency says.  I would not even talk to them before the court hearing unless you are going to pay or try and settle.  The issue here is with the COURT, communication and motions need to be filed with them directly.

Good luck,
Regan
mbscompany@aim.com