Potential Defenses To Lawsuits

Defective Service Of Process

Service Of Process

The United States Constitution provides that no one shall be deprived of "life, liberty or property without due process of law." Due process means an established course for judicial proceedings designed to safeguard the legal rights of the individual. A major principle of due process is that parties whose rights are to be affected are entitled to be heard by the court, and in order to enjoy that right, must first be notified. The way that defendants in collection lawsuits are notified is by service of a summons and complaint.

Requirements vary by state as to what will constitute valid service. Personal service is almost always acceptable. Most states also allow service at a person's residence or place of employment. If no other type of service can be made, a court can also order service by publication in a local newspaper.

Until proper notice is given to the defendant, the court lacks jurisdiction to enter a judgment. A judgment entered without valid service of process is void, and can, upon the proper motion, be vacated.

A not-too-uncommon technique among process servers working for debt collectors is to pretend to serve the defendant without ever doing so. The defendant, not hearing about the lawsuit, never responds. Then the creditor, using the process server's sworn statement that the defendant was served, obtains a default judgment against the defendant, who may not find out about the judgment until years later when his wages are being garnished.

Then, it will be up to the defendant to file a motion with the court to vacate the judgment, and to be successful in such a motion, must convince the court that he never was served.

These can be "cured," but the court will generally not consider a defendant's motion if the defendant waits too long.