By: Robert J. Nahoum
The cashier at the grocery store rings you up, you swipe your debit card and embarrassingly, the cashier tells you that your card is no good.Â You call your bank and are told that your bank account has been frozen.Â How can this have happened?Â Turns out, you were sued by a debt collector, you didnâ€™t answer the lawsuit, and a default judgment was entered against you.Â The reason you didnâ€™t know about the default judgment is because the court papers may have never been delivered to you, a practice known as “sewer service”.
Before a court can render a judgment against a defendant in a debt collection lawsuit, the court must first acquire PERSONAL JURISDICTION over the defendant.Â Personal jurisdiction is obtained by serving the defendant with a summons and complaint.
There are three ways to properly effectuate service of the summons and complaint in a debt collection lawsuit in New York:
- Personal Service â€“ Delivering a copy of the summons and complaint personally to the defendant;
- Suitable Age and Discretion Service – Delivering a copy of the summons and complaint to someone in the defendantâ€™s home to a person of â€œsuitable age and discretionâ€ (someone competent enough to pass the papers on to the defendant);
- Nail and Mail â€“ 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 defendantâ€™s door and mail a copy to his or her last known address.
The debt collectors proof that it served the defendant comes in the form of a document call an â€œaffidavit of serviceâ€ that is filed with the court. Â The affidavit of service states the date and time of each attempt at service and a description of the person served including the gender, approximate age, height, weight, skin color and hair color. If service was by â€œnail and mailâ€, the affidavit of service states the date and address of the nailing and the mailing.
If service of process is questionable, the defendant should examine the affidavit of service to see if the description comes close to anyone living at the home.Â The court will grant the process server some leeway in the description.
â€œSewer serviceâ€ is the practice common in debt collection cases where, a process server hired by a debt collection attorney, knowingly and deliberately fails to serve a debt collection lawsuit against a consumer defendant while submitting a fraudulent affidavit of service to the court claiming service was made.
WHAT YOU SHOULD DO
Default Judgments obtained through sewer service can be overturned by filing an order to show cause to vacate the default judgment.Â The defendant will have to demonstrate to the court that the affidavit of service is false.Â Often, to get to the bottom of a service of process dispute, the court will order a â€œtraverse hearingâ€ to determine if service was improper.
At a traverse hearing, the burden is on the debt collector to call the process server as a witness and testify in court as to what happened when service is alleged to have been made. The Court either decides at the hearing that service was improper as a matter of law and dismisses the case without prejudice or, orders the debt collector to re-serve the Complaint properly. The Court might allow re-service of the Complaint right there in court.
If youâ€™ve been the victim of sewer service, call an experienced consumer protection attorney to discuss your options.
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.Â 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.