SERVICE OF PROCESS
Before a court can render a judgment against someone, the court must first acquire what is called “personal jurisdiction”. Personal jurisdiction is the courts ability to render judgment of an individual in a lawsuit. Personal jurisdiction is obtained by serving the party with a summons and complaint. However, to be effective, the summons and complaint must be properly served according to law.
Proper methods of service are:
- 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 three 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 debt collection cases, it often happens that a defendant (the person being sued) never properly receives service of the summons and complaint. Nevertheless, judgment is entered by default, called a default judgment.
A default judgment can be reversed or “vacated” if the consumer can show the court that he or she was (1) never served or (2) has a defense to the case (like “I don’t owe the money”, “I don’t owe that much money” or “I don’t know who the plaintiff is”) and that he or she has a reasonable excuse for defaulting (like “I didn’t know I had been sued”).
If a consumer can meet these requirements, he or she can make motion to the court to vacate the default judgment. If the judgment debtor can show that he or she was never served, the court should vacate the judgment and dismiss the case. If the judgment debtor fails to show that he or she was not served but can convince the court that there is a defense and reasonable excuse for defaulting, the case may returned to the beginning and the judgment debtor will be given an opportunity to answer the complaint and mount a defense.
If you have questions, concerns, or legal needs regarding service of legal papers, we urge you to contact The Law Offices of Robert J. Nahoum, P.C. today by calling 845-232-0202.