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What If a Summons Was Served to the Wrong Person?

George Simons | October 19, 2022

George Simons
Co-Founder of SoloSuit
George Simons, JD/MBA

George Simons is the co-founder and CEO of SoloSuit. He has helped Americans protect over $1 billion from predatory debt lawsuits. George graduated from BYU Law school in 2020 with a JD-MBA. In his spare time, George likes to cook, because he likes to eat.

Edited by Hannah Locklear

Hannah Locklear
Editor at SoloSuit
Hannah Locklear, BA

Hannah Locklear is SoloSuit’s Marketing and Impact Manager. With an educational background in Linguistics, Spanish, and International Development from Brigham Young University, Hannah has also worked as a legal support specialist for several years.

Getting served court documents like ^^

Summary: Being sued isn’t fun, but it’s even worse when you don’t know you’re being sued. When the court Summons is not properly served, it can cause major issues like default judgment, which can lead to wage garnishments and liens. If you are sued but never served, use SoloSuit to respond to the lawsuit and protect your rights.

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 default judgment. 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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What is a Summons?

A Summons is a legal document that notifies someone that they are being sued. The plaintiff, or the person/company that initiates the lawsuit, must properly deliver the Summons to the defendant, or the person/company being sued.

The Summons document outlines some of the specifics of the case, like which court it is in, the parties involved, the attorneys representing the parties, court and hearing dates, and deadlines for the defendant to respond. It is typically delivered with a Complaint document that outlines the specific claims against the defendant.

If you are being sued for a debt you owe, you should be served a Summons and Complaint. Debt collectors are known for improperly served Summons, or purposefully not serving someone successfully, also known as “sewer service.”

If you’ve been sued by a debt collector, but you never received the Summons, you have rights that can protect you. Below, we discuss how a Summons should be served and the laws that surround service of legal documents.

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:

  1. Service by a Sheriff
  2. Service by a Process Server
  3. 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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The U.S. Constitution requires service of process

The Fifth Amendment of the U.S. Constitution contains a “Due Process” clause that states:

“No person shall be… deprived of life, liberty, or property, without due process of law;”

This law expressly prohibits courts from exercising personal jurisdiction over a defendant unless a defendant receives sufficient notice of the legal proceedings. In other words, the court can’t make a decision on a debt collection case unless the person being sued was actually notified of the case.

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.

As a reminder, 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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What happens if the process server served the wrong person?

Getting sued by a debt collector is not fun. It’s even less fun when you don’t even know you’re being sued.

Debt collectors are infamous for improperly serving court documents. There are many reasons that you might experience court papers served incorrectly, including:

  • Incorrect name on court Summons
  • Improperly served Summons
  • Court Summons sent to wrong address
  • Summons lost in the mail

Regardless of the reason for improper service, you have rights when it comes to being sued. Improper service violates the rules of civil procedure for most states, usually Rule 4, which outlines the law surrounding proper service. You can double-check your state's service laws under Rule 4 here.

If your court documents were served to the wrong person, or if they never made it to you for any other reason, there can be serious consequences. Each state has a deadline for defendants to respond to a court Summons and Complaint, and if no Answer is filed within that deadline, a default judgment can be ordered against the defendant.

A default judgment gives the plaintiff the right to garnish wages, seize property, and freeze bank accounts in order to collect the money they claim is owed.

Avoid default judgment by filing an Answer into your case.

Use improper service as an affirmative defense in your Answer

If you have proof that you were improperly served court documents, you can bring it up as a defense in your case. In your Answer document, include improper service as one of your affirmative defenses. This gives you leverage in your lawsuit, granting you the right to explain why you missed any deadlines to respond or court hearings.

If you believe that you are being sued for debt and you were not properly notified, or worse, a default judgment has been placed against you, then you need to take action.

If you have already lost the lawsuit by default judgment, then you can file a Motion to Set Aside Judgment. If the deadline has not passed to respond to the Complaint, then you can file an Answer arguing you should win because of improper service.

Let’s consider an example:

Example: Jason is sued by a debt collection agency in California for an old credit debt of $900. The process server hired by a debt collection attorney deliberately fails to serve Jason with the Summons and Complaint and fraudulently submits an affidavit of service to the court claiming service was made. Months later, Jason receives a notice in the mail that he has lost the case by default because he didn’t respond in time. After some investigating, he finds out that he was sued and never notified about it. Jason uses SoloSuit to file a Motion to Set Aside Judgment and an Answer document where he explains he was never properly served. The court accepts the motion and Answer and eventually, the case gets thrown out.

Improper service is also known as sewer service, which is a common practice among debt collectors. This is the practice of intentionally failing to serve court documents to a defendant in order to win a case automatically.

The diagram below outlines your options if you are a victim of sewer service:

SoloSuit Sewer Service

Insufficient service means you 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 lead to the case 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 happens when the wrong person has the same, or similar, name to the identified defendant, or the defendant has moved to a different residence.

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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.

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