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  #1  
Old 10-25-2010, 05:41 PM
Markxxx Markxxx is offline
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What Do They Do If They Can't Serve You Papers When Being Sued

OK let's say you're being sued for something and no one can find you to serve you.

I thought about this with all the foreclosures. I mean let's say the bank is going to foreclose but the family knows this and just packs up and leaves.

OK the bank hires someone to go to the house and serve papers on you but the house is empty and the neighbors don't know anything about where you've gone.

Obviously there must be a method of suing you anyway, as long as you can prove you at least tried to serve them, right?
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  #2  
Old 10-25-2010, 05:45 PM
Fubaya Fubaya is offline
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I'm not sure if it applies to foreclosures, but if you can't serve papers, the next option is sometimes public announcement through the area newspapers and/or the newspapers in the area where you think the person may be.

This surely varies by state and the steps/options for serving someone probably has it's own section in your state law.
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Old 10-25-2010, 06:05 PM
Spoons Spoons is offline
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In my jurisdiction, the next step would be to get a court order for substitutional service. This would allow the server to "serve" the papers by substituting a different method for personal service. Popular ways of doing this would include publishing a notice in the newspapers, or posting the paperwork on the door of the last known residence, among others. Note that you must have tried personal service a few times, and be able to prove it, before a judge will grant such an order.

However, service and the rules about it can differ from jurisdiction to jurisdiction. It's always best to check the rules in your location before you seek an order and/or attempt a non-standard method of service.
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Old 10-25-2010, 06:42 PM
suranyi suranyi is online now
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A related question that I've wondered about for many years:

About twenty years ago I was at my parents' home while school was on break. I was alone at home in the middle of a weekday, both my parents were at work. The doorbell rang, I answered it. It was a process server, who thrust a document into my hand and said: "You've been served."

The gist of it was that my Mom was being sued in connection with a car accident that had taken place some weeks earlier. In the end it was all handled by the insurance company; my Mom never even had to set foot in a courtroom.

But here's what I always wondered: Was my Mom really served? She never got the summons: I did. (Of course, I told her about it, but nobody needed to know that.) If anyone at the address gets it, is it presumed to be properly served?
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Old 10-25-2010, 07:24 PM
Fubaya Fubaya is offline
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Originally Posted by suranyi View Post
But here's what I always wondered: Was my Mom really served? She never got the summons: I did. (Of course, I told her about it, but nobody needed to know that.) If anyone at the address gets it, is it presumed to be properly served?
I just looked up my state's law and it says...
Quote:
...by delivering a copy of the summons and of the complaint to the individual personally, or if he or she evades or attempts to evade service, by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, whose name shall appear on the proof of service..
Again, your laws may vary, maybe they can leave it at the address in your state. But by my state's law it seems nearly legal. They didn't identify you, and you didn't technically live there.

The problem is that they have to record proof of service, so if they go back to the courthouse and sign a form saying they left it with her kid and if your mom doesn't show up for court, she might find it hard to prove she never got it.

I don't know what it's like being a process server, but giving it to anyone in the home was probably a safe bet. I would probably be more careful serving a 20 year old guy at an apartment when hung-over strangers answer the door.
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  #6  
Old 10-25-2010, 10:53 PM
robert_columbia robert_columbia is offline
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As mentioned by others, process can be made by publication, but a good faith effort needs to be shown before the judge is supposed to let you serve by publication.

This is, of course, a necessity in real life. Imagine a situation where your spouse abandons you and just disappears, and could have ended up living alone in a cave hidden in the mountains of Mongolia for all you know. Service by publication allows you to divorce them, otherwise an injustice would result.

Last edited by robert_columbia; 10-25-2010 at 10:54 PM..
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  #7  
Old 10-26-2010, 08:34 AM
Elendil's Heir Elendil's Heir is offline
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In Ohio, service may be by certified mail, by regular U.S. mail, in person, by the documents being left with someone "of suitable age and discretion" (the same phrase Fubaya used) at the residence, and by publication, in that order of preference. Court approval of any of the less-favored means of service is not required, but if someone later makes a stink about it, you have to be prepared to show that you tried the other, more-favored means first. Generally speaking, courts are not inclined to cut any slack for someone who's going through contortions to avoid being served legal papers.
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Old 10-26-2010, 10:48 AM
OldGuy OldGuy is online now
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Originally Posted by Elendil's Heir View Post
In Ohio, service may be by certified mail, by regular U.S. mail...
They can serve by regular mail? How would they ever prove service had been made? I'd think at the very least you'd want some signature at delivery.
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  #9  
Old 10-26-2010, 11:45 AM
Ferret Herder Ferret Herder is online now
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They can serve by regular mail? How would they ever prove service had been made? I'd think at the very least you'd want some signature at delivery.
WAG: An attempt is made via certified mail first, and the recipient refuses it, fearing the contents. Another letter is sent first class to avoid the "this is very important" flag on it and increase the chance that it'll be accepted.
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Old 10-26-2010, 12:53 PM
Elendil's Heir Elendil's Heir is offline
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Precisely. Unreturned regular mail is presumed to have been received by the person to whom it was addressed.
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  #11  
Old 10-26-2010, 12:59 PM
Darth Panda Darth Panda is offline
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My civ pro is a little rusty but they may be able to attach the property and proceed quasi in rem.
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  #12  
Old 10-26-2010, 01:40 PM
OldGuy OldGuy is online now
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Originally Posted by Elendil's Heir View Post
Precisely. Unreturned regular mail is presumed to have been received by the person to whom it was addressed.
But how do they prove it was mailed? How do they prove it was unreturned? Is just their word good enough?

If I can "refuse" certified mail, why can't I refuse first class mail, by returning it to the Post Office?

Don't worry I don't need answer fast. I'm just curious.

Can I file my taxes this way? Gee I sent my return in. It didn't come back. That proves you got it. (That's a joke!)

Last edited by OldGuy; 10-26-2010 at 01:42 PM..
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Old 10-26-2010, 01:45 PM
Ferret Herder Ferret Herder is online now
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Originally Posted by OldGuy View Post
But how do they prove it was mailed? How do they prove it was unreturned? Is just their word good enough?

Can I file my taxes this way? Gee I sent my return in. It didn't come back. That proves you got it. (That's a joke!)
Another WAG: They bring in a certified envelope with "rejected by resident" checked off by the postman (or something similar) and use that as proof that process-avoiding is going on, and that they're making an effort. Maybe if the person figures it out, the standard letter comes back marked "return to sender" and then they have that. If the ad goes in the paper, then they have that as further documentation.

Last edited by Ferret Herder; 10-26-2010 at 01:47 PM..
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  #14  
Old 10-26-2010, 02:03 PM
OldGuy OldGuy is online now
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Originally Posted by Ferret Herder View Post
Another WAG: They bring in a certified envelope with "rejected by resident" checked off by the postman (or something similar) and use that as proof that process-avoiding is going on, and that they're making an effort. Maybe if the person figures it out, the standard letter comes back marked "return to sender" and then they have that. If the ad goes in the paper, then they have that as further documentation.
You're answering the question that's the opposite of what I asked. Yes you can prove a letter was returned by showing up with the letter marked as such. Everyone seems to be thinking about this from the viewpoint of a scrupulous server and an unscrupulous servee.

I'm asking the opposite. An unscrupulous server claims to have mailed a letter and it wasn't returned. An innocent servee says it never came. How can the servee fight this if the server's word it was mailed and unreturned is accepted without question? And really what proof could the server have other than his word?

Last edited by OldGuy; 10-26-2010 at 02:04 PM..
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  #15  
Old 10-26-2010, 02:22 PM
bleibtreu bleibtreu is offline
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Originally Posted by OldGuy View Post
An unscrupulous server claims to have mailed a letter and it wasn't returned. An innocent servee says it never came. How can the servee fight this if the server's word it was mailed and unreturned is accepted without question? And really what proof could the server have other than his word?
I think the point is that they can't start by using First Class mail. By the time it gets to that step, they will have already documented attempts to serve you personally, and at least one refused or ignored certified letter. The pattern is established: they're attempting to properly serve, and the recipient is resisting. At that point, why would they not go ahead and send it through regular email, instead of just claiming to but not really doing it? They've already exhausted the more difficult and costly methods; it seems a reasonable assumption that if they claim that they next sent a First Class letter, they actually did so.

And "the server's word" -- or anyone else's -- under oath isn't simply dismissed by a court.

Last edited by bleibtreu; 10-26-2010 at 02:23 PM..
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  #16  
Old 10-26-2010, 02:24 PM
Mk VII Mk VII is online now
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There's no way to prove it either way. So a 'unscrupulous' server doesn't gain anything, fairly or unfairly, by doing it that way. That's why you use certified delivery. The mail man proves it's been received - or delivery has been refused.
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  #17  
Old 10-26-2010, 03:13 PM
Elendil's Heir Elendil's Heir is offline
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Yup, that's pretty much it. FWIW, I've never in 18 years of civil litigation seen a defendant allege, after dodging certified mail, that regular mail never reached them.
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  #18  
Old 10-26-2010, 03:32 PM
Bryan Ekers Bryan Ekers is offline
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At what point does the breakdancing start?
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Old 10-26-2010, 05:42 PM
Elendil's Heir Elendil's Heir is offline
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Only in the movies: Breakin' III: You Been Served! Litigious Boogaloo.
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  #20  
Old 10-26-2010, 07:19 PM
usedtobe usedtobe is offline
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before this deteriorates further:

don't try to dodge service - the court favors the party making ernest effort.
If you think you can avoid service, you are wrong.
Referred to above, "service by publication" - a 30-word blurb in a paper known only to the lawyers in your town COUNTS - if the court allows it, this service is the same as sticking the papers in your hand. You have been served, and the process commences.

Hiding from the process server is a really bad idea.
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  #21  
Old 10-26-2010, 07:34 PM
Fubaya Fubaya is offline
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Originally Posted by Elendil's Heir View Post
In Ohio, service may be by certified mail, by regular U.S. mail...
Are you sure? I did a quick google and found this which says Ohio allows certified or express mail with the return receipt as evidence that they were served. It's not on an Ohio government webpage so it could be out of date.
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  #22  
Old 10-26-2010, 07:39 PM
Markxxx Markxxx is offline
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I wasn't thinking about avoiding the service so much as moving away.

Or if the guy dies and doens't live there anymore.

I was thinking if the server can't serve it, there must be a way. It seems like as long as you can prove you tried that's enough.

And since you didn't show up in court you would lose by default

Last edited by Markxxx; 10-26-2010 at 07:39 PM..
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  #23  
Old 10-26-2010, 10:29 PM
Cyberhwk Cyberhwk is offline
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Originally Posted by suranyi View Post
It was a process server, who thrust a document into my hand and said: "You've been served."
Do they actually say that?
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  #24  
Old 10-26-2010, 10:46 PM
DxZero DxZero is offline
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Ugh...Civ Pro 1L year...horrible horrible memories. Service of process and attachment of property took up a good chunk of my first semester of law school.

About the "you got served", I don't think it has to be those exact words, but I seem to recall that the process server had to inform the party what exactly they were handing them. But my memory could be faulty on that.
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  #25  
Old 10-27-2010, 12:31 AM
The Second Stone The Second Stone is offline
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As others have mentioned, it depends on what the local jurisdiction requires. Herre is a California sampling of the festivities: When a case is filed, the lawyer delivers the papers to a professional process server who then tries to find the person and personally deliver the papers. If unable, they may try certified mail, if that fails, they can stake the person out, or they can try serving a adult at the home or place of business. Barring that, we try to get the court to order service by publication in a newspaper. Special legal newspapers are a lot cheaper. A copy is usually also mailed per these orders for service by publication.
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Old 10-27-2010, 12:32 AM
Monty Monty is offline
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From my days as an admin asst. at a collection agency, I recall the term Constructive Service. Is that term still in use?
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  #27  
Old 10-27-2010, 01:08 AM
Jophiel Jophiel is offline
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Originally Posted by OldGuy View Post
But how do they prove it was mailed? How do they prove it was unreturned? Is just their word good enough?
Not a lawsuit but my son recently had his last name changed. I sent his mother a certified letter informing her of the hearing but it was pretty close to the court date and the judge seemed apprehensive about whether she had been given sufficient notice. So the judge postponed the hearing two weeks and told me to mail the new documents and that I could do so via first class mail. I asked if I needed some sort of confirmation receipt and she said no, that my word under oath to have sent them would be valid for "proving" that I had done so.
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Old 10-27-2010, 01:19 AM
Whack-a-Mole Whack-a-Mole is offline
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Originally Posted by Spoons View Post
In my jurisdiction, the next step would be to get a court order for substitutional service. This would allow the server to "serve" the papers by substituting a different method for personal service. Popular ways of doing this would include publishing a notice in the newspapers, or posting the paperwork on the door of the last known residence, among others.
I believe you but reading this makes me shake my head.

I live in Chicago so there is almost no way in hell I would ever see such a notice in the paper. First there are two major newspapers and second, in a city this size, a section with such notices would be huge. Who they hell would read hundreds of such notices daily to see if one mentioned them?

I also live in an apartment building and short of the police getting past security no one else would get to my door without my say so.

Last edited by Whack-a-Mole; 10-27-2010 at 01:21 AM..
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Old 10-27-2010, 03:59 AM
cckerberos cckerberos is offline
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Originally Posted by Whack-a-Mole View Post
I also live in an apartment building and short of the police getting past security no one else would get to my door without my say so.
Depending on jurisdiction, a doorman can be given the notice if he refuses the process server access to a defendant's apartment. He becomes the person "of suitable age and discretion" mentioned above (even though he likely doesn't reside there).
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Old 10-27-2010, 05:16 AM
Darth Panda Darth Panda is offline
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I see a market for 'fire in the hole' service of processs videos.
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  #31  
Old 10-27-2010, 08:49 AM
Quercus Quercus is offline
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I was peripherally involved in a situation where a legally-important document was refused certified delivery, presumably because the recipient knew from the return address it was bad news. This was NOT a formal service of a legal notice, so it wasn't governed by any court rules, rather it was governed by lawyers saying "If this comes to a lawsuit, we'll need to prove that the recipient did get this. Certified mail is the best evidence." I think the lawyers then sent it by FedEx to the recipient's office, where someone (receptionist I assume) signed for it, thereby allowing the sender to establish it was received. As I recall there was some discussion of whether to hire a process server if the FedEx trick didn't work.


Of course, I was always wondering how you prove exactly what was in the certified letter envelope, but I decided the lawyers wouldn't appreciate me bringing that up...
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  #32  
Old 10-27-2010, 09:01 AM
Mk VII Mk VII is online now
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Some years ago there was a court case here to determine whether papers served by faxing them were legally valid. The court held that they were, providing both parties agreed that they had been received - no way to prove whether a fax had been legibly received or not. Telex, on the other hand, was a valid way of doing it.

The Small Claims Court here comments:-
It can be difficult for parties to litigation to understand that, in legal terms, service is not the same as delivery or receipt. A claim form is deemed to have been served on a defendant even if it has been returned to the court marked undelivered – provided that it was sent to the last known or usual address of the defendant. The claim form is even deemed to have been served if the claimant knows that the defendant has left that address – unless they know the defendant’s new address.

This rule is so strict that there is nothing the defendant can do to rebut it even if they have conclusive proof that they never received the document. There is even case law that says that service was still good where a document was sent to a property which had previously been destroyed.

http://www.aboutsmallclaims.co.uk/se...documents.html
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  #33  
Old 10-27-2010, 09:43 AM
Northern Piper Northern Piper is online now
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Of course, I was always wondering how you prove exactly what was in the certified letter envelope, but I decided the lawyers wouldn't appreciate me bringing that up...
Testimony, the same way as you would prove that the document has been put into the post, or sent by FedEx.

Normally, you can't just file a document with the court. It has to be introduced by someone testifying to it. The system I'm familiar with, the process server or legal secretary will swear an affidavit, with copies of the document and the copies of the post/FedEx tracking information as exhibits. The person swearing the affidavit swears that the copy of the document is a true copy; that he/she arranged for it to be sent by post/FedEx; that the tracking documents are those received from post/FedEx; that the affiant verily believes that the document is a true record of the attempts by post/FedEx to deliver it; and so on. Absent a statutory provision authorising a document to be entered on its own authority (and those types of provisions are rare in general litigation), all documents are tendered to the court via a witness, either in person or by affidavit.
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  #34  
Old 10-27-2010, 09:47 AM
Northern Piper Northern Piper is online now
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Originally Posted by Mk VII View Post
The Small Claims Court here comments:-
It can be difficult for parties to litigation to understand that, in legal terms, service is not the same as delivery or receipt. A claim form is deemed to have been served on a defendant even if it has been returned to the court marked undelivered – provided that it was sent to the last known or usual address of the defendant. The claim form is even deemed to have been served if the claimant knows that the defendant has left that address – unless they know the defendant’s new address.

This rule is so strict that there is nothing the defendant can do to rebut it even if they have conclusive proof that they never received the document. There is even case law that says that service was still good where a document was sent to a property which had previously been destroyed.
Yes and no. It depends on the jurisdiction, and on the nature of the claim in issue. For example, here in Canada, there is case-law that says when a constitutional right is at stake (life, liberty, or security of the person, for example), then personal service of the documents on the respondent is required as a general rule. There are exceptions (e.g. - attempts to evade service), but personal service is the general rule.
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Old 10-27-2010, 10:17 AM
Whack-a-Mole Whack-a-Mole is offline
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Originally Posted by cckerberos View Post
Depending on jurisdiction, a doorman can be given the notice if he refuses the process server access to a defendant's apartment. He becomes the person "of suitable age and discretion" mentioned above (even though he likely doesn't reside there).
Fair enough except I do not have a doorman. "Security" in my case are a locked gate and locked entryway.
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  #36  
Old 10-27-2010, 11:01 AM
Boyo Jim Boyo Jim is offline
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...The problem is that they have to record proof of service, so if they go back to the courthouse and sign a form saying they left it with her kid and if your mom doesn't show up for court, she might find it hard to prove she never got it. ...
Hmmm... If she shows up in court to claim she was never served, isn't her very appearance proof that she WAS served? How else would she know?
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Old 10-27-2010, 11:41 AM
AK84 AK84 is offline
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IIRC in most jurisdictions before substituted service can be ordered process server has to report to that service has been attempted and failed.
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  #38  
Old 10-27-2010, 12:01 PM
Elendil's Heir Elendil's Heir is offline
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Hmmm... If she shows up in court to claim she was never served, isn't her very appearance proof that she WAS served? How else would she know?
This happens in my court a few times a year. I will usually find that service was satisfactory if the defendant found out somehow, and came to court. The whole rationale for requiring service of process is so that the person being sued is made aware of it.
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Old 10-27-2010, 12:07 PM
Boyo Jim Boyo Jim is offline
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If the person doesn't show up, and the paperwork appears correct, then it is assumed the person was served, and the other guy gets a default judgment.

It the person DOES show up,then it is assumed the person was served.

What's the downside of not serving papers?
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Old 10-27-2010, 12:33 PM
Elendil's Heir Elendil's Heir is offline
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If you can't perfect service, one way or another, then the case can't go forward. If it sits on the docket for too long without perfecting service (and the length of time varies under state law and/or local rule), it will be dismissed.
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  #41  
Old 10-27-2010, 12:42 PM
Markxxx Markxxx is offline
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Originally Posted by Boyo Jim View Post
If the person doesn't show up, and the paperwork appears correct, then it is assumed the person was served, and the other guy gets a default judgment.

It the person DOES show up,then it is assumed the person was served.

What's the downside of not serving papers?
It would probably become obvious if a person that was hired to serve papers was lying as it would happen all the time. If it happens once or twice, it's one thing but if the court is finding it's happening all the time it'd be easy to pick out a lazy process server
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  #42  
Old 10-27-2010, 01:00 PM
ratmanizhere ratmanizhere is offline
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I know of an individual that was arrested for failure to appear. When questioned about why not appearing in court as requested, he claims he wasn't served.

The judge questioned the process server about the papers being served, the server provided a copy of the form stating the papers were left on the front step of the individual's residence.

The judge dismissed the case stating that the papers have to be actually given to an individual and not just left "sitting on the front stoop".
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  #43  
Old 10-27-2010, 01:25 PM
robert_columbia robert_columbia is offline
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Basically, I believe the law and the court is asking for good faith from both sides. If you are intentionally trying to evade process service by sneaking out of your home at 4 AM and wearing a disguise everywhere, the judge is going to take a dim view of that and is likely to allow alternate service (e.g. tacking on your door or publication). On the other hand, if you the plaintiff know that the guy you're suing is going to be going out of town, and you wait until their plane departs before attempting service, then march up to their home and knock and get no answer, then cry to the judge "OMG I can't serve plz helpp!", when the defendant gets back and realizes what you did, the judge is going to be very angry and may well dismiss the case and void any judgments that have already happened.

Last edited by robert_columbia; 10-27-2010 at 01:26 PM..
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  #44  
Old 10-27-2010, 01:41 PM
EristicKallistic EristicKallistic is offline
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Originally Posted by Boyo Jim View Post
If the person doesn't show up, and the paperwork appears correct, then it is assumed the person was served, and the other guy gets a default judgment.

It the person DOES show up,then it is assumed the person was served.

What's the downside of not serving papers?
Eventually, the lying, non-serving plaintiff is going to want to do something defendant will notice -- garnishing wages to satisfy judgment, sending in the sheriff to auction defendant's property, etc.

At which point defendant will be strongly motivated to point out that he was never actually served, and if he can at all prove it, not only is plaintiff back to square one when judgment is set aside, but they also lied under oath, which would tend to be a Very Bad Thing.
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Old 10-27-2010, 03:32 PM
Spoons Spoons is offline
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Originally Posted by Whack-a-Mole View Post
I believe you but reading this makes me shake my head.

I live in Chicago so there is almost no way in hell I would ever see such a notice in the paper. First there are two major newspapers and second, in a city this size, a section with such notices would be huge. Who they hell would read hundreds of such notices daily to see if one mentioned them?

I also live in an apartment building and short of the police getting past security no one else would get to my door without my say so.
Newspaper publication is often a method of last resort, used only when nothing else has worked. Chicago may be a big city, but I'm willing to bet that you'll find such notices in your local newspapers--look for classified ads headed "Legal Notices," or similar. Besides, if you know someone is trying to serve you, as in the case of someone trying to evade service, you might keep an eye on that part of the newspaper.

As for getting past security in your building, the court order would allow the server to enter. A court order is a powerful document, and ignoring or disobeying one can lead to contempt of court charges. Your security guard denies entry to the server bearing a court order at his own peril. It is more likely though that, if your security guard did not allow the server to enter, the server would simply return with a police officer to enforce the provisions of the order--that is, that the server can enter to do his job. Either way, you'd be served.
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  #46  
Old 10-27-2010, 03:36 PM
Spoons Spoons is offline
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Quote:
Originally Posted by Whack-a-Mole View Post
Fair enough except I do not have a doorman. "Security" in my case are a locked gate and locked entryway.
Just spotted this. In this case, the server would get in touch with the property manager, condo management, or whoever; and arrange a time to enter and serve or post the papers. Again, if the property manager etc. balked, the police could enforce the order.
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Old 10-27-2010, 04:33 PM
Elendil's Heir Elendil's Heir is offline
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Again FWIW, I've never heard of the police having to intervene to open an otherwise-closed door to let in a process server. But it could happen.
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Old 10-27-2010, 09:43 PM
Little Nemo Little Nemo is online now
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A tip for anyone who wants to serve papers on a prisoner who's incarcerated in a New York prison - you won't by allowed to. Ask for the Inmate Records Coordinator - that's who you'll end up serving the papers to.
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  #49  
Old 10-27-2010, 11:21 PM
Fubaya Fubaya is offline
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Originally Posted by The Second Stone View Post
Barring [all other options] we try to get the court to order service by publication in a newspaper.
This is a tidbit worth noting. My state's law on process service actually says nothing about notification by publication, but I know someone who did it and those legal notices in the classifieds often contain other examples. I assume it's done as mentioned above. The point being, service by publication isn't something that the server can decide to do on their own.

Quote:
Originally Posted by Boyo Jim View Post
Hmmm... If she shows up in court to claim she was never served, isn't her very appearance proof that she WAS served? How else would she know?
I didn't mean she would show up on the court date and claim she didn't know about it, but at a later time. She could be arrested for not showing up or have a judgement against her that is sure to get her attention and she will eventually end up back in court where the subject will come up, like the person in ratmanizhere's post.
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  #50  
Old 10-28-2010, 10:39 AM
Elendil's Heir Elendil's Heir is offline
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In Ohio, you cannot be arrested for failing to appear in court on a civil case (unless the judge explicitly holds you in contempt for FTA, which is very rare). You can be arrested for failing to appear on a criminal or traffic case, however.
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