George Simons | October 19, 2022
Summary: A process server will try their best to serve you personally. However, if they can't find you, the court may grant an order for substituted service, and the lawsuit may proceed without you.
When a debt collector files a lawsuit against a consumer, there is a legal requirement applicable in courts across the country that the consumer must be served with a notice of the impending legal action. Usually, this is called a Summons and Complaint. This requirement is in place to ensure that the consumer (known as the defendant in the lawsuit) is provided sufficient time to prepare a defense and respond to the allegations contained within the Complaint.
While it may be possible to avoid a process server physically for a specific period of time, avoidance does not do much of anything to halt the litigation. Additionally, it may make the process more costly for you if the court decides that you should cover the expenses for the repeated efforts to serve you.
The better option is to simply accept the legal documents from the process server and get to work crafting your response to the lawsuit.
If you think that avoiding the process server and never formally receiving legal documents means a lawsuit cannot move forward, you are mistaken. Keep reading to learn what happens if a process server can't find someone.
Despite what you've seen in movies and television shows, hiding from process servers does not make the lawsuit go away. There are alternatives to personal service that equally amount to proper service.
While the preferred form of process service is “personal” service, it's not the only option. Personal service entails a process server physically handing legal documents directly over to you. However, it is important to understand that service can be completed, even if you did not accept the legal documents from the process server or sign an acknowledgment.
In some instances, whoever answers the door at your residence can be the recipient of the service of process. This is known as “substituted service” (more on this topic below). Other forms of service can be utilized as well.
If a process server makes repeated attempts to physically serve debt collection legal documents and is unsuccessful, they have other options to complete service of process. Below are examples of some of the most common service options utilized by process servers.
Although you may think that avoiding a process server is a good way to keep a lawsuit from happening, you can't prevent the suit from proceeding. And if you don't show up to court, you could lose more than you would have if you'd accepted service and fought the case.
The plaintiff can request the court to allow an alternative process service. If the court grants the order, you risk a default judgment in your absence. If the plaintiff can prove that they tried every possible means to serve you in person but failed, the court may allow these alternatives of process service:
The only difference between in-person and substituted service is that you may have added time to respond to the lawsuit. For example, in California, you have 30 days to send an Answer to the court. However, in the case of substitute service, you have 40 days. Keep in mind that court holidays, public holidays, and weekends also count.
If you were not personally served with a Summons and Complaint related to a debt collection lawsuit and you did not receive the legal documents through an alternative form of service, you may be able to raise a lack of service as a defense in the case. However, it is important to understand the standard that is used to judge the performance of most process servers.
Generally, a process server is required to show that they engaged in sufficient due diligence when attempting to serve the legal documents to you. A process server is required to document that they utilized every available means to locate you. This means that you should expect a process server to make repeated visits to your residence, workplace, etc. if they have difficulty completing service of process.
Jack, a consumer in the state of California, fell behind on his credit card account payments. When the creditor reached out to ask for payment, he ignored them. He neither responded nor sent a Debt Validation Letter. Jack didn't realize it at the time, but it was a horrible mistake with long-lasting ramifications.
Matters got worse when the creditor sold Jack's debt to a debt collector who threatened to sue. Again, Jack did nothing. Unfortunately, the threats were real and he is now facing a lawsuit. His friends have advised him to avoid being served. So, he never answers the door for anyone other than his friends. In fact, he has a secret code for his friends just to be sure.
What is Jack doing wrong?
Although he has already made several mistakes (not responding to debt collectors and not sending a Debt Validation Letter), hiding from process servers could be his worst mistake yet. What he doesn't know is that someone else (a substitute) can be served instead of him. The process server can also post the documents at his door or send them in the mail. Jack has already ruined his credit and he now risks a default judgment which could lead to paycheck garnishment, property lien, and bank account freezes.
For a court case to proceed to trial, the defendant must be notified. The papers give you a fair chance at defending yourself during trial. Ideally, in-hand or in-person service is preferred. However, when that does not work, a substituted service can be utilized. After a reasonable number of failed attempts to serve you, litigation may continue without you. So, instead of playing hide-and-seek with process servers, accept the documents and file your response with SoloSuit.
No. The process server should be an "indifferent person." In other words, they should be someone neutral—without any stakes in the case. There are certified registered process servers. However, any individual over 18 years old (including a friend, relative, etc.,) can serve you with court papers, and in many states, anyone living in your home can accept the service of process. If you encounter a debt collector trying to serve papers, you may have cause to file a countersuit.
Even when you are the defendant in a lawsuit, you have rights. Sometimes process servers may be guilty of "bad service." In such a case, you can bring that up in court to defend yourself. Learn more about examples of bad service in New York state.
Avoiding personal service is not the answer to a lawsuit. Instead, file a legal Answer with the court. If you don't respond in time, you risk the debt collector receiving a default judgment against you. And remember that in-person service is not the only way to properly serve you.
Watch the video below to learn more about how to respond to a debt collection lawsuit:
SoloSuit makes it easy to fight debt collectors.
You can use SoloSuit to respond to a debt lawsuit, to send letters to collectors, and even to settle a debt.
SoloSuit's Answer service is a step-by-step web-app that asks you all the necessary questions to complete your Answer. Upon completion, we'll have an attorney review your document and we'll file it for you.
"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
You can ask your questions on the SoloSuit forum and the community will help you out. Whether you need help now or are just looking for support, we're here for you.
Here's a list of guides for other states.
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