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What Happens If a Process Server Can't Serve You?

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.

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What happens if you can't serve someone court papers?

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.

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What if you successfully avoid a debt collector trying to serve court papers?

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:

  • Certified mail: After a process server makes multiple attempts to complete service of process in person and fails, they can send the legal documents through the U.S. Postal Service. Service of process can be completed via certified mail as long as the process server can provide proof that the papers were mailed and you reside at the mailing address.
  • Posting on the door of your residence: If in-person service of process is unsuccessful, the plaintiff in your debt collection lawsuit has the option to file a motion with the court seeking authorization that would enable the process server to post the legal documents on your front door. Some states require that the documents be mailed to you in addition to the ones posted at your door.
  • Notice in a local newspaper: If a process server has made repeated attempts to reach you and failed, another option is for the court to authorize the plaintiff (i.e. the debt collection agency or creditor) to complete service of process by publishing a notice in a local newspaper. Though, there is a prerequisite that the newspaper is circulated in the area where you reside, along with other criteria.
  • Substitute service: Some states allow process servers to utilize “substitute service” to complete service of process. Typically, substitute service is sought after other avenues to complete service have proven unsuccessful. When substitute service is authorized, a process server will be allowed to simply leave the legal documents with a relative or a roommate of sound mind and legal age at your address.

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.

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Professional standard for process servers

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.

Read more about what process servers can and cannot do.

Learn from Jack's example

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.

Don't be like Jack; accept the court papers and fight your case.

Frequently asked questions about process service

What happens if you can't serve someone personally?

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.

Can the debt collector serve papers?

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.

What happens if you are not properly served?

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.

Respond to a debt collection lawsuit

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:

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