Fill and Sign the Motion Set Aside 497314802 Form

IN THE CHANCERY COURT OF       COUNTY, MISSISSIPPI IN THE MATTER OF       THE CONSERVATORSHIP OF       CIVIL ACTION NO.       MOTION TO SET ASIDE ORDER FOR AN ACCOUNTING AND FOR OTHER RELIEF COME NOW       ,       and       , and file this their Motion to Set Aside Order Requiring an Accounting and in support thereof would show unto the Court the following: 1. On or about       ,       ,       ,       and       ("       ") were served with a summons and Petition for Appointment of a Conservator over the person and estate of       . Through said summons, the       were notified that a hearing on the Petition would be held on       ,       . 2. The       acknowledge that the aforementioned service of process with regard to the hearing for Appointment of Conservator was proper in all respects and consequently, that this Honorable Court had proper jurisdiction over the       with respect to the initial Conservatorship Proceeding. 3. On or about       ,       , an Order was issued by this Court naming       as the Conservator of the Estate and Person of       . After offering bond and upon taking the Oath of Conservator, this Court issued Letters of Conservatorship to       ("       ") on or about       ,       . 4. On or about       ,       , Conservator filed a Petition for an Accounting and other Relief. Pursuant to the Certificate of Service attached to the Petition, Conservator represents that service of the Petition was made upon the       and       in accordance with Rule 5 of the Mississippi Rules of Civil Procedure. 5. Aside from the service by mail, Conservator had       served personally with a copy of the Petition on       ,       . The Summons directed       to file an answer or response to the Petition within 30 days of service. No other next of kin were personally served with a copy of the Petition. 6. On or about       ,       , Conservator filed an Amended Petition for an Accounting and Other Relief. Here again, the       were allegedly served with a copy of the Petition by mail, but no personal service was made. 7. Mississippi Code Annotated § 93 - 13 - 281 (1972), as amended, provides: "In all proceedings involving a ward and brought under Chapter 13, Title 93, Mississippi Code of 1972, except as hereinafter provided, the proceedings shall join as defendants the parents of the ward then living, or if neither be living, two of his/her adult kin within the third degree computed according to the civil law. When such Petition shall be filed, the clerk shall issued process as in other suits to make such person or persons defendants, which process shall be issued and returned as in other cases process need not be served hereunder, however, if the parent or parents then living, or if they both be not living if any two (2) of his/her adult next kin within the third degree computed according to the civil law, shall unite with the guardian in his/her Petition...MCA § 93 - 13 - 281. 8. Accordingly personal service on       alone was insufficient to provide proper personal jurisdiction over the       with regard to the relief requested in the Petition for an Accounting and Other Relief as required by statute and by the Rule 4 of the Mississippi Rules of Civil Procedure. Service by mail of a Petition seeking new or additional relief, outside the relief requested with respect to the appointment of a conservator, was insufficient to make the       party defendants to the Petition and Amended Petition for an Accounting and for other relief. 9. On or about       ,       , Conservator filed an Application For Entry of Default Judgment against the       . Conservator, also on       ,       , filed a Notice of Hearing on Conservators Amended Petition for an Accounting, Motion for Authority to Pay Attorney's Fees and Motion for Entry of Judgment of Default. The hearing on said motions was scheduled for       ,       . 10. On       ,       , this Court entered an Order Requiring an Accounting. The       hereby respectfully move this Court to set aside this Order due to the fact that the Conservator did not obtain proper personal service on the       with regard to the relief requested in the Petition and Amended Petition for an Accounting or the relief granted in said Order. 11. On or about       ,       , the       were personally served with a Summons and attached copy of the aforementioned Order Requiring an Accounting directing them to file a full and complete accounting with the Court within thirty (30) days of service of a copy of the Order. Presently, the accountings will be due on or about       ,       . 12. The       were also served with a Notice of Hearing before this Honorable Court on       ,       ,       , at             .m. on Conservators' Amended Petition for an Accounting and Other Relief which the       understood was held on       ,       . The             ;       and a number of financial institutions have been served with subpoenae duces tecum directing the recipient to produce financial records and other documents pertaining to the financial history and dealings of       and the       . 13. The       respectfully request that the hearing on said matters be postponed until the       have been afforded a hearing on the instant motion and until counsel for the       has an opportunity to address the Court and opposing counsel concerning the nature of the matters to be addressed and the purpose for the hearing. Respectfully submitted, _______________________________________       Attorney for       Of Counsel:                         Telephone:       MSB #       Attorney for       CERTIFICATE OF SERVICE I,       , one of the attorneys for the       , have this day served a true and correct copy of the above and foregoing Motion to Set Aside Order Requiring an Accounting, via facsimile and by U.S. States Mail, postage fully prepaid to       ,       ,       ,       , MS       , (       )       . This the       day of       ,       . _______________________________