What is “Valid” Service of Process
What is “Valid” Service of Process
This question comes up a lot, and I have probably addressed it before. But for this set of videos I want to give a shorter, sweeter answer. Bear in mind that service of process is the way a court asserts jurisdiction over you – “process” is not the lawsuit, it’s the summons, the sheet of paper from the court, and “service” is the way it’s given to you. If it isn’t done correctly, the court lacks power to control your fate. As you’ll see, the rule isn’t some sort of absolute constitutional requirement – it is constitutionally required, but it can vary under circumstances of practicality. We’ll discuss some of those here.
If you’re in small claims court, there may be special rules regarding service of process. There often are. For example, service by certified mail, or even just first class mail, may be sufficient. If you receive a summons by mail, you should look up the court’s rules on service. Sometimes, even if service by mail is good, there may need to be some proof that you actually received it. Check your rules and see if what you got was good enough. Obviously you don’t want to call them, identify yourself, and ask if receiving service by mail was good enough, since that would be admitting you got it.
If you’re being sued in something other than small claims court, it’s probably going to take more than just the mail. They’re probably going to have to hand you the suit or offer to do so.
Here again, the rule is not absolute. If they offer you the summons, and you refuse it or run away, you will have been served. It isn’t necessary for you to take it for service to have happened, just for it to be offered.
But what if they tack it on your door? Or put it between the screen door and your front door? That’s normally not going to be enough, since there’s no certainty you will be the one getting it, but if that happens, you’ll want to research the question before deciding it wasn’t good enough. Incidentally, if we’re talking about a foreclosure or rent eviction, tacking the suit to the door might be enough to get jurisdiction over the property even if not over you, personally. That would mean that they could evict you if you don’t answer, but not hold you liable if there’s anything else owed.
What about if they give the summons to a neighbor? Probably not enough (check your state’s rules) and possibly a violation of the Fair Debt Collection Practices Act, too.
How about giving it to you child at the door? This, too, is going to be determined by state rule. Most states have rules that allow service upon residents at a place who are a certain age or above. So ordinarily that would not give a visitor a right to accept service on you, or a child under a certain age.
If you haven’t been served adequately, you may wish to oppose the court’s jurisdiction over you. I actually usually suggest you hire a lawyer to do that for you, since it’s just a more powerful statement and can be done without being tremendously expensive. You would file what’s called a “motion to quash service,” to have it deemed ineffective by the court.
What if they can’t find you or reach you at home? There are other ways you can be served, but usually the plaintiff has to ask for permission to do that. They could serve you “by publication,” which means posting notice in some legal publication. Since no one ever reads those publications, you won’t see that, but if you’re aware they’re trying to reach you, you should follow the case docket and see if they ask for permission to serve you that way. If so and the court gives them permission to do so, you’re probably going to want to go ahead and waive service and ask them to mail you the summons and complaint. But it’s quite rare for debt collectors to take all the trouble to serve by publication for a very good reason: if they can’t find you to serve you, they’re not likely to be able to find your assets to collect on them. Everybody in the debt collection business likes to get paid, and if they don’t think they will be, they usually won’t put in the effort.
As you can see, I generally think the debt collectors should have to put in the effort to serve you. If they can’t, there isn’t much reason for you to make that easier for them. They might drop the suit on you completely. That’s a winner.