There has been a dramatic increase in creditor lawsuits flooding the courts in an attempt to collect bad debt since debt collectors have discovered phone calls are not making the grade. The increased volume has led to carelessness on the part of the debt collectors in the lawsuit process which can give the consumer a chance to have the case thrown out on a technicality. The manner in which the defendant is notified of an impending lawsuit is called proper service. The court will not allow the case to proceed if there is improper service. In addition, a judgment for a debt can be vacated (successfully appealed) if the defendant was not properly served.
For example, it is usually not sufficient to notify the defendant by phone, or in most jurisdictions, even by first-class mail. The timing of the notice requires the plaintiff to notify the defendant in advance of the court date, within a certain period of time, or as otherwise proscribed by that jurisdiction’s rules of procedure. Finally, where the defendant is notified can also determine whether or not the plaintiff has properly “served” the defendant.
Each state has its own rules and laws that dictate how a plaintiff must serve a defendant. There are also slight differences when the plaintiff is suing corporation or other entity. It can also become more complicated when one party tries to sue another party in another state.
In most states, “personal service,” or hand delivering a copy of the summons to the defendant, is the required method of service. In some states, you can hire a process server, someone who hand delivers the notice to you and then submits a sworn statement testifying that you were served. In other cases, a state or county will require a Sheriff to serve the Defendant in a lawsuit.
Other forms of service which exist in this country:
- Posted Service A Sheriff can post a copy of the lawsuit to the entrance to the defendant’s home if the plaintiff also sends a copy of the lawsuit to the defendant by mail. This is referred to as “posted service.” If the defendant is not home, the Sheriff simply tapes the lawsuit to the door and reports to the Court that the lawsuit has been served upon the Defendant. The plaintiff can then go forward with the lawsuit. It is important to note, however, that the Sheriff must first try to serve the Defendant personally. Also, the Sheriff cannot post a copy of the lawsuit to the door if a resident at that address advises the Sheriff that the defendant no longer lives there.
- Service by publication Publication is also called constructive service because the court construes it to be effective whether the defendant actually reads the notice or not. Generally, service by publication is allowed only by leave of the court, which usually grants permission only when the plaintiff can show that no other method of service utilized (like if the Plaintiff cannot be found). Usually the legal notice must be published in at least one newspaper of general circulation where the defendant is likely to be found or where the court is located, or in both places. Ordinarily the notice must be published on more than one occasion, such as once a week for three weeks.
- Registered Mail In some states, a Plaintiff can mail the notice of a lawsuit to the Defendant by means of registered mail. The proof of receipt in included in the court paperwork.
- Regular Mail A handful of states only require that the notice of an impending lawsuit be sent to a Defendant by regular first-class mail. No proof of receipt is required, the law assumes the mail was received 6 days from the postmark.
References:
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Can you get the credit bureau to drop the balance due to zero on a charge-off for secured debt that was repossessed?
yes you can if they charged it off there should be no balance but they may show it as the charged off amount high balance the balance should be zero, also if it were repossed and charged off and given to a collection agency collection agency and original creditor should not have a balance that is a fcra, fdcpa violation.
After reading all this information I realized that a collection may have sued me for a debt that was not theirs, what if anything can I do at this point?
Thank you
So, i have a small loan that i defaulted on about half way through payments…. I was not properly served…. they left the affidavit at my door and said that they served my brother…. – on that note…. they took it to court after that and now my wages age getting garnished BAD….
reguardless of the owed amount, they served me illegally, can this low debt get thrown out of court for them serving me illegally??? PLEASE HELP!
It’s possible you could get the judgment vacated – but sometimes a state’s laws allow a summons to be left with a family member or roommate who is an adult:
Here is a link to help you determine this:
http://www.creditinfocenter.com/legal/process-service-requirements.shtml
The problem is, is that it was left out in the rain, we didnt find it till a couple days later while we were mowing the yard and it was under a bush…. they stated they “Left with family member” with no signature.
What state do you live in and did you read the requirements?
I live in oklahoma – They have to serve it to someone living in the same house above the age of 14.
Pull the court records and see what it says in the affadavit of service. If they said they spoke to someone or the description of the person these supposedly spoke to doesn’t match a family member – then you may have a case. It could wind up being their word against yours which is tough.
I WAS SERVED WITH A LAWSUIT, FROM THE DEBT LAWYER, NOT CAPITAL ONE (I JUST LEARNED THAT FROM THIS SITE!) MY CREDIT REPORT SAYS “CHARGED OFF”BUT IT SAYS $6,206 AND THE AMOUNT PAST DUE SAYS $10,106
DOES THAT MEAN I STILL OWE $4000?
Well, i am sure that on the affidavit they have to had gotten a signature of the person recieving it for me…. well i called the lawyer who was the plaintiff. His dumb secretary kind of slipped up and while i was asking her who had signed it, she said there is no signature, it just says “Gave to brother”
It can’t hurt to look…
I received a summons from my neighbor. Appearantly the server came to the front of our apartment building and was greeted by her. Eventhough she said I was not home, because she knocked on my door while waited, he gave it to her and aked her to give it to me when I came home. The summons was not private. There was no envelope and all my personal information about this debt could have been read by her. I felt my rights were violated since the fair credit and debe collection law requires that debt collectors could not publish or disclose my debt to any one not named on the account. To my suprise a legal aid representative told me that this was not enough to get the case dismissed. I am being sued by Capital One Bank for a debt that was charged off in 2007. The amount of the suit is for 1012.00 however my credit report shows that they have been increasing the balance every month since 8/07 even though it shows charged off. I really only should owe 500.00 since that was my balance when I notified them that I lost my job and filed a claim for credit insurance which they made impossible to use. I my reply I disputed the service of the summons. A week later I got another copy by first class mail. I am in California, does this sound legal?
My credit report shows that I have a high balance of 1874.00.
07/2009 -1874.00
06/2009 -1849.00
05/2009 -1825.00
04/2009 -1731.00
03/2009 -1700.11
and so on, it increases aprox 25.00 ea mo. but some months almost 94.00 or higher. Can they still be appling fees to a closed account. The credit report shows it was charged off and the account is closed. I will dispute this with the credit bureau. Can I have Capital One mail me proof of the current balance? Since it was “charged off” and I no longer have that acct.