What Counts as Proper Service
Each state has specific rules for how a lawsuit must be served. Generally, proper service requires: personal delivery to you (in-hand service), leaving papers with a person of suitable age at your dwelling, or in some cases, service by certified mail with return receipt. Tacking papers to a door, leaving them with a neighbor who does not live with you, or serving the wrong person at the wrong address is defective.
Sewer Service -- The Debt Collection Epidemic
Sewer service is the illegal practice where a process server falsely claims to have served you. The server files a fraudulent affidavit of service, and the creditor obtains a default judgment. Studies have found this practice is widespread in debt collection cases, particularly in New York, Illinois, and other high-volume courts. If you never received any papers, sewer service may be the reason.
How to Prove Defective Service
Obtain the affidavit of service from the court file. Check: Does the physical description match you? Were you at the address on the date claimed? Does the server claim personal service but you were at work (get employment records)? Was service made at an old address? Gather evidence -- travel records, work schedules, utility bills showing your actual address, witness statements.
Filing the Motion Based on Improper Service
Your motion should argue that the judgment is void under Rule 60(b)(4) due to lack of personal jurisdiction. Attach your declaration with specific facts contradicting the affidavit of service, plus supporting evidence. Request a hearing -- judges take service issues seriously because due process is at stake.
Frequently Asked Questions
What if the process server says they served me but I know they didn't?
The burden shifts based on the type of service claimed. If the server claims personal service, you can challenge with evidence you were elsewhere. Courts can order the process server to testify. Consider filing a complaint with the state's process server licensing authority.
Can I sue the process server for sewer service?
Yes. Filing a false affidavit is a crime in most states and can give rise to civil liability. If you can prove fraudulent service, you may also have claims against the creditor's law firm under the FDCPA.
Is service by mail valid?
It depends on the state and court. Some states allow service by certified mail with return receipt. Check whether your state allows it for the type of case and whether the specific requirements were followed exactly.
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