Imagine a company trying to collect a bad debt from a customer. The company uses traditional methods including standard debt collection. When all else fails, they decide to sue. That company has a legal obligation to properly serve the debtor through its attorney or a third-party process server.
Serving the defendant is essentially providing copies of both the summons and complaint. The documents must be given to the defendant completely unaltered, and within a reasonable amount of time. This gives the defendant enough time to respond before a court hearing is scheduled.
Failing to serve properly could result in a default judgment. Moreover, the default judgment could be vacated if a court determines that the defendant was not properly served. Therefore, it is critical that creditors serve debtors properly should they decide to sue.
How Process Service Works
Serving the defendant in a lawsuit is pretty straightforward. The plaintiff’s attorney prepares the legal documents in accordance with state law. Those documents are served directly to the defendant by way of a face-to-face interaction or, where law allows, served by mail or left with third parties – like roommates, family members, etc.
Once served, a defendant has only so much time to respond. Again, state laws vary here. It could be as little as twenty days or as many as thirty-five. Failing to respond results in forfeiting the case. Courts almost always enter default judgments in the event of forfeiture.
Failing to respond is not the only way to wind up with a default judgment. Another possibility is to respond within the given time frame but never show up in court. Judges assume that a failure to appear equals a desire to forfeit. The end result is almost always a default judgment.
Vacating Default Judgments
Civil litigation attorneys know full well that default judgments can be vacated under the right conditions. Judgment Collectors, a Salt Lake City, Utah collection agency that specializes in outstanding judgments, says it happens all the time. They say that default judgments are vacated for a number of reasons:
No Service – Despite claiming to have served defendants, process servers sometimes do not always get the job done. When that happens, defendants are never actually served. Their judgments are vacated for the simple fact that they could not respond to litigation they were unaware of.
Improper Service – States have strict rules in place regarding how defendants can be served. If process servers break the rules, any resulting judgments can be vacated.
Substitute Service – Some states allow process servers to leave documents with other responsible adults if the defendant cannot be located. However, there are also strict rules controlling how this plays out. Judgments can be vacated if substitute service is either handled improperly or is not allowed under state law.
To avoid anything that could result in a vacated judgment, attorneys and process servers go to great lengths to make sure they do things by the book. This includes getting a defendant’s signature upon service of summons and complaint. A signature is proof that the defendant was properly served, at least in most cases.
Unfortunately, far too many defendants are served improperly. Judgments entered against them are vacated, forcing creditors to start over from scratch. Initiating civil litigation is already a costly and time-consuming endeavor. Having to start over due to improper service is both frustrating and completely avoidable.
So what is the lesson here? That proper service is important to successful litigation. You have to do things right from the very start. Otherwise, the entire case could be in jeopardy.
