What is an “Affidavit of Service” in a Debt Collection Case?
- March 9, 2016
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By: Robert J. Nahoum
Were you surprised to learn that your bank account has been frozen or your wages have been garnisheed? If your answer is yes, a debt collector likely has a default judgment against you from a lawsuit you had no idea had been filed.
In debt collection lawsuits, most cases are won on default where the consumer never answered the complaint. Many consumers don’t answer because they never knew they had been sued. Most don’t know they’ve been sued because the debt collector never properly served them with copies of the summons and complaint.
According to New York State law, before a court can render a judgment against you, it must first acquire PERSONAL JURISDICTION over you. Personal jurisdiction is obtained by serving you with a summons and complaint; but, you must be properly served. Here are the ways you can be served:
- Personal Service – delivering a copy of the summons and complaint to you personally;
- Suitable Age and Discretion Service – delivering a copy of the summons and complaint to someone in your home of “suitable age and discretion” (someone competent enough to pass the papers on to you);
- Nail and Mail – After at least two failed attempts at personal or suitable age and discretion service, the process server may post a copy of the summons and complaint to the door and mail a copy to your last known address.
In order to be awarded a default judgment, the debt collector must demonstrate to the court that it complied with the service requirements and properly served the consumer with copies of the summons and complaint. The way they do this is by filing an “affidavit of service”.
An affidavit of service is a sworn statement from the person who served the summons and complaint describing how, when and upon whom the summons and complaint were served. The statement is a sworn statement meaning that it subject to the penalties of perjury.
The person who serves the papers is usually a professional and licensed “process server” who was hired by the debt collector’s lawyers to serve the papers. Unfortunately, process servers have a long history of violating the service laws by engaging in the practice of “sewer service”.
“Sewer service” is the practice common in debt collection cases where, the process server knowingly and deliberately fails to serve debt collection lawsuits against consumer defendants while submitting fraudulent affidavits of service to the court claiming service was made.
Judgments obtained through sewer service can be easily overturned by filing an order to show cause to vacate the default judgment. A default judgment can be reversed or “vacated” if the consumer can show the court that he or she was never actually served with the summons and complaint or that he or she has an otherwise reasonable excuse for defaulting (like “I didn’t know I had been sued”).
If you need help settling or defending a debt collection law suit, stopping harassing debt collectors or suing a debt collector, contact us today to see what we can do for you. With office located in the Bronx, Brooklyn and Rockland County, the Law Offices of Robert J. Nahoum defends consumers in debt collection cases throughout the Tristate area including New Jersey.
The Law Offices of Robert J. Nahoum, P.C