Win in court against debt collectors.
Summary: Are you being sued by a debt collector over a case of mistaken identity? Learn what to do if a summons was served to the wrong person and how to win your case.
When a summons is incorrectly served on the wrong person, the ramifications can be quite serious. For example, improper or ineffective service of a legal document like a summons can grind a legal action to a halt resulting in delay and even dismissal of the lawsuit. Before discussing the consequences associated with serving the wrong person with a summons, let's go over some basics about the summons and why it is a vital document in the realm of civil litigation.
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The U.S. Constitution requires service of process
The U.S. Constitution contains a “Due Process” clause that expressly prohibits courts from exercising personal jurisdiction over a defendant unless a defendant receives sufficient notice of the legal proceedings.
This is why courts across the country obligate plaintiffs to take the necessary steps for a defendant, or defendants, to be served with a summons and a copy of the plaintiffs' complaint. These legal documents comprise the “process” in service of process.
In most instances, it is not enough to mail the process to a defendant who is the subject of a lawsuit. The summons and complaint must be either given directly to the defendant or left with a suitable person at the defendant's residence. This is why process servers exist. This is also why process servers need to do the job right and serve the right person with a summons.
A summons is a legal document that provides official notice of a lawsuit. It typically includes information identifying the plaintiff who initiated the lawsuit, the defendant who is being sued, the location of the court, the jurisdiction, and the allegations that form the basis of the lawsuit. In addition, each court summons also states how long the person has to respond.
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How a summons is typically served
When a plaintiff decides to sue someone, the summons must be properly served to ensure the defendant is provided with notice of the lawsuit. “Service of process” is the formal name for giving a defendant a Summons to come to court. It is also worth noting that if a plaintiff sues multiple defendants, each defendant identified in the lawsuit is required to receive individual service of the summons and complaint. A summons is typically served in one of three ways:
- Service by a Sheriff
- Service by a Process Server
- Service by Certified Mail (in specific circumstances, with the permission of the court)
Serving the wrong person is a major error. Nevertheless, it occurs more often than you may think. Serving the wrong person could be because the defendant suddenly moved and the process server delivered the summons to the wrong person. Another common scenario is serving the wrong person who has the same name, or a very close name, as the defendant identified in the summons.
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Insufficient service means a defendant can file a motion to dismiss the lawsuit
A lawsuit can be dismissed (i.e. tossed out of court) if it is shown that there was a serious defect in the summons or if the defendant was not properly served with the summons and complaint. When the wrong person is served with a summons, it means the service was insufficient and could be used as grounds to have the lawsuit dismissed.
If you discover that you are a defendant in a debt collection lawsuit, but someone else was served with the summons and complaint associated with the collections case, you could use this improper service as grounds to file a motion to dismiss. Depending on the circumstances, it may be worthwhile to try and get the lawsuit dismissed with prejudice, which could prohibit the debt collector from turning around and filing another lawsuit against you.
When a summons is served on the wrong person, the consequences can be quite severe. It could result in the lawsuit that is the subject of the summons being dismissed, which means it gets tossed out. Here are some other key points about the service of process:
- Every defendant identified in a lawsuit needs to be served with the summons and complaint (i.e. the service of process)
- Service of process must typically be completed in person, but there are some exceptions
- Serving a summons on the wrong person is usually due to the wrong person having the same, or similar, name to the identified defendant, or the defendant moving to a different residence.
What is SoloSuit?
SoloSuit makes it easy to respond to a debt collection lawsuit.
How it works: SoloSuit is a step-by-step web-app that asks you all the necessary questions to complete your answer. Upon completion, you can either print the completed forms and mail in the hard copies to the courts or you can pay SoloSuit to file it for you and to have an attorney review the document.
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"First time getting sued by a debt collector and I was searching all over YouTube and ran across SoloSuit, so I decided to buy their services with their attorney reviewed documentation which cost extra but it was well worth it! SoloSuit sent the documentation to the parties and to the court which saved me time from having to go to court and in a few weeks the case got dismissed!" – James
>>Read the FastCompany article: Debt Lawsuits Are Complicated: This Website Makes Them Simpler To Navigate
>>Read the NPR story on SoloSuit: A Student Solution To Give Utah Debtors A Fighting Chance
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