Improper Service of Process

We estimate that 75% of our clients were not properly served. The problem is that if a creditor or process server is willing to lie, it is very hard to prove a negative. This page is to help you determine what you need to prove and if it is worth the cost.

What do I do if I was improperly served?

Fake service of process is a rampant problem. Due to how the legal system works, it is easy to fake service and hard to disprove. The first thing you need to know is that a defendant has a burden to prove their defense. For example, if you were accused of murder, the state does not have to prove you did it in self defense, you have to do that yourself. So if a process server merely claims they served you and submits this lie under penalty of perjury, you are held to the standard that you must prove you were not served.

The problem in proving you were not served is you are trying to prove a negative. Imagine you are home with your family. The process server drives by, sees your lights on and the car parked, and decides to lie. Maybe they are lazy, maybe they are scared of getting punched or yelled at, maybe they are just a bad person. Regardless of the reason, if they claim you opened the door, how do you prove that you did not absent video? Your other family members will be seen as biased if they try to claim you were not served and so will you. If it is word vs. word, the court is more likely to believe the process server. So the only way to prove you were not served is with evidence.

Evidence to prove you were not served:

You will likely need documentary or video evidence to prevail or someone whose testimony is very unlikely to be impeachable. Here are some examples:

Plane tickets or public transportation tickets showing you were out of the area
Receipts from a restaurant, toll bridge, coffee shop, etc. showing you were somewhere else
Testimony from a neutral third party (religious leader, professional, etc)
Testimony from co-workers that you were at work
Testimony from a teacher that you were in class
Video evidence from your front door showing the process server never came by or you never opened the door
Video evidence showing you were somewhere else
Video game log showing you were in the middle of a firefight or mission during the time of alleged service
Work log showing you were at work at the time of alleged service

If the testimony is from someone biased, such as family, close friends, people you are in a romantic relationship with, etc., the court will most often discount or ignore their testimony unless it makes sense (maybe everyone was at a family reunion down at the local park). In general, your best evidence is something that is written or in video form that is unimpeachable and neutral (receipts and work logs are our favorites).

Standard to vacate a default judgment:

Even if you have evidence that you were improperly served, there are several factors that also must be met under present legal standards and statutory requirements:

From the time of discovery of the false service, did you act with due haste to resolve? In general, the court wants to see that you acted anywhere from a few weeks to a few months. The very maximum is one year under a good faith standard but judges often cut this short if the circumstances warrant (like you were garnished three times already over a 180 day period and then finally you decide to act).
Is there evidence that you were not served (see above)
Is there a meritorious defense? So beyond just being served, is there something else such as statute of limitations, improper amount, mistaken identity, etc. where there is a basis of defense. The court will not vacate the default if all that is going to happen is the creditor will win immediately as there is no dispute in facts and no defenses.

In regards to Discovery (item #1 above), there are many ways that you are held to have known. So even if you were not served and can prove it, if you discover the false service and default judgment and do not act, you waive that defense. You can be held to know about the judgment via actual or constructive knowledge:

Actual Knowledge Examples:

They served your mom and your mom testified she gave the papers to you
They served a coworker at your job and the coworker testifies they have you the documents
You went to the post office and signed for the certified mail containing the legal documents
You testify you found the papers on your front door but didn’t do anything
You testify that you got the papers but thought they were fake

Constructive Knowledge Examples:

The creditor sent certified mailings to the correct address
The creditor lists the debt on your credit report
You have been garnished one or more times and did not act

To prevail on a motion to vacate a default judgment, you need to show:

You had no knowledge of the suit and were not garnished
That you have acted quickly to resolve once you do discover (from one month to no more than twelve months)
That you have a meritorious defense to the debt

Cost to vacate a default judgment:

Generally, it costs around $1,500.00 plus fees and costs to vacate if you retain our firm. You can also do it on your own though there are many pitfalls. Visit our free resource page if you want more information about doing it on your own.

Is it worth fighting a default judgment?

Before attempting to vacate a default judgment, you want to look at the cost benefit analysis. Here are our rules of thumb for when you should try to vacate the default judgment:

If you were to try to settle the debt, would that be cheaper than filing a motion to vacate? So if the total debt is $2,000.00, it would not make sense to pay $1,500.00 (with a risk of loss) when you could settle that matter for a similar or lesser amount. In this scenario, you should not try to vacate.
Do you have enough other debts to where if you filed for bankruptcy protection, it would be cheaper, more certain, and with better benefit? So if you owe $20,000.00 total across five accounts, one of which you were improperly served and received a default judgment upon, you could file bankruptcy on all of the debts for about $2,000.00 give or take. In this scenario, you should not try to vacate.
If the cost of the motion to vacate is about 5% of the debt and worth the risk and would save you from filing a bankruptcy. For example, there was a car crash where the insurance company obtain a $100,000.00 judgment against you without your knowledge and now you are past the statute of limitations if you vacate the judgment and you have no other debts. In this scenario, you should try to vacate.
If for license, security clearance, interest rate, political, or other reasons it is important that there is no judgment on your record. In this scenario, you should try to vacate (though it might not be cost effective) if you feel it is worth it, important, or essential.

If you have questions, please visit our debt defense scheduling page or call 206-535-2559.