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
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”.
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.
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.
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.
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.
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.
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.
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.
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.
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.
In theory, no.
A process server needs to verify that the person he’s serving is either
- the actual person or
- a person who lives at the same residence and is over 18 years of age.
So your mom was not properly served.
In actuality, what would have happened had your mom ignored it is that the court case would have proceded. The case gets called in the initial hearing and the attorneys for the litigants - having already claimed there was proper service in their pleadings - would note that your mom wasn’t there in the courtroom and ask the judge for a default judgment. This would be granted.
Then, your mom may or may not have gotten notice of the judgment and could then go to the court to attempt to claim improper service and seeking to set aside the default judgment. Good luck to her in getting a judge to listen to that.
A better tactic would have been to go to the initial hearing, claiming improper service. In an absolute best case scenario, she gets the judge to believe her and enough time has now passed that the case has passed whatever timelimits are set within civil procedure and the case needs to be tossed.
More likely, the attorneys get a slap on the wrist, they end up serving your mom for real this time, and the case goes on.
Even more likely, the judge doesn’t believe your mom about improper service because your mom showing up in the first place is a pretty good indication she got served. Hooray for catch 22s!
Suppose the mother played it out and doesn’t show up in court on the appointed day. And she doesn’t send an attorney or other representative.
As you note, the plaintiff’s attorney will note her absense and request a default judgement, which would probably be granted.
What avenue would the mother then have for appealing the judgement based on her claim that she was not served notice of the appearance? Or is it a case where you have to appear in court in order to complain that you weren’t notified that you needed to appear in court?
There are, after all, bad plaintiffs and crooked lawyers in the world. What would keep them from throwing a summons into the shredder and really not telling somebody they’re suing them? Then they show up at court without the unaware defendant present, lie and say they served the papers, and get awarded a default judgement.
You do eventually have to appear in court to complain if a default judgment is entered against you due to your not having been served.
As mentioned above, the Plaintiff has to swear, in his pleading, that he did attempt to serve you as required under law. So if he didn’t, he has perjured himself. Which may or may not go over well with the judge. It may not go over well with the Bar Association if it can be shown that the Plaintiff’s lawyer knew about it and sponsored it. So the process server may have both his livelihood and liberty in jeopardy, as might the lawyer. Or he might not, he might just get a slap on the wrist and then have to actually prove his case.
If a particular plaintiff makes a habit of this, they may attract even further attention and become the focus of unpleasant attention, as recently happened in New York state:
“That’s what we in the legal profession call a lie.”
Obviously prejury is involved. But I’m wondering what avenue would expose the perjury. The whole point of the lie was to create a situation where the defendant is not represented in the courtroom. So who’s going to speak up and say the plaintiff is lying?
Eventually, the defendant.
The plaintiff is going to court to get something, by force of the legal system, from the defendant. They’re not just there because they want to get a judgment to frame and put up on the mantle.
Eventually they’re going to take that judgment, garnish the defendant’s wages, send the sheriff in to collect his belongings to auction off, or otherwise attempt to collect the judgment.
The defendant will notice his paycheck being smaller, a sheriff at his house carting off his TV, or etc. At that point, he will be motivated to speak up.
And, to elaborate on what can happen after the defendant speaks up saying they were never served, there can be an evidentiary hearing (essentially a mini-trial) where testimony is taken (typically the process server and the defendant, or whomever is alleged to have accepted the service) and other evidence is presented on the issue, and then the judge makes a ruling. I’ve never actually seen it done, but I saw it go to the brink once.
Thing is, it’s usually cheaper and easier for all involved to avoid such a hearing. What happened in my case was that we agreed to vacate the default judgment, the defendant’s attorney agreed to accept service on behalf of his client, and then we proceeded to the case on the merits.
ETA: I should note that the judge was strongly pushing us to make the deal. He didn’t want to take up his time with a hearing on whether service was proper, and he made sure we knew it. Judges have a lot of leeway to make life very uncomfortable for litigants when they want to.
So it is an issue that can be raised and appealed retroactively?
Yes. Lack of service means the court never gained jurisdiction over the individual, which means any judgments entered against that person are void.
In practical terms, what that means is that when you discover a default judgment has been entered and you were never served, you bring a motion to vacate the judgment before the judge on the basis that you were never served.
Most grounds to vacate a judgment have time limits attached to them, but not lack of service.
And presumedly the burden of proof is not placed on the defendant to prove that the papers were not served? I mean beyond the normal standard.
99% sure you’re correct, but I haven’t looked at the case law for a long time.
What I’m curious about now and can’t recall ever seeing discussed is whether a defendant has any kind of duty or timeframe in which they must bring a petition to vacate a judgment after they discover its existence.
Let’s assume I’m a crafty and sophisticated individual, with a real skill for hiding assets. If I know you have a void judgment against me, can I watch you spend thousands of dollars attempting to enforce your judgment, only to pop out of the woodwork later and say: “Sorry, there was no service.” Or do I have an obligation to come forward when I discover your efforts to collect against me.
It’s sort of analogous to a laches argument.
My gut is that no service=no jurisdiction, the judgment is void full stop, but I can see a judge reacting very poorly to a defendant who has known about a suit for years but waited to come forward and challenge it.