When to Know if You Were Not Properly Served

March 14, 2022 Post a Comment

Improper Service of Procedure

We guess 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 aid you decide what you lot need to evidence and if it is worth the cost.

What do I do if I was improperly served?

Fake service of procedure is a rampant problem. Due to how the legal organisation works, it is easy to simulated service and hard to disprove. The first thing you lot need to know is that a defendant has a burden to prove their defense. For example, if you lot were accused of murder, the state does not accept to prove you did it in self defense, you lot have to do that yourself. So if a procedure server simply claims they served yous and submits this lie under penalty of perjury, you are held to the standard that yous must prove yous 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 unit. The process server drives by, sees your lights on and the car parked, and decides to prevarication. Mayhap they are lazy, maybe they are scared of getting punched or yelled at, perhaps they are just a bad person. Regardless of the reason, if they claim you opened the door, how do yous prove that you did non absent video? Your other family members will be seen every bit biased if they effort to merits yous were not served and then will you. If it is give-and-take vs. give-and-take, the court is more likely to believe the process server. So the but style to prove you were not served is with prove.

Prove to prove you were not served:

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

Aeroplane tickets or public transportation tickets showing you were out of the area
Receipts from a eating place, cost bridge, java shop, etc. showing you were somewhere else
Testimony from a neutral third political party (religious leader, professional person, etc)
Testimony from co-workers that you were at work
Testimony from a teacher that you lot were in grade
Video testify from your front door showing the process server never came past or you never opened the door
Video evidence showing you were somewhere else
Video game log showing you lot 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 courtroom will most frequently discount or ignore their testimony unless it makes sense (perhaps everyone was at a family reunion downward at the local park). In general, your best bear witness 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 accept evidence that you were improperly served, there are several factors that likewise must be met under present legal standards and statutory requirements:

From the fourth dimension of discovery of the false service, did y'all act with due haste to resolve? In general, the courtroom wants to encounter that you acted anywhere from a few weeks to a few months. The very maximum is 1 year under a good organized religion standard but judges oftentimes cut this short if the circumstances warrant (like yous were garnished 3 times already over a 180 twenty-four hour period flow and so finally you decide to deed).
Is there evidence that you were not served (meet above)
Is there a meritorious defense? And so beyond but existence served, is there something else such as statute of limitations, improper amount, mistaken identity, etc. where there is a footing of defense. The courtroom will not vacate the default if all that is going to happen is the creditor volition win immediately as there is no dispute in facts and no defenses.

In regards to Discovery (item #1 in a higher place), there are many ways that y'all are held to have known. So fifty-fifty if you were not served and can prove information technology, if you discover the false service and default judgment and exercise not human action, you waive that defense. You tin 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 lot
They served a coworker at your job and the coworker testifies they have you the documents
Yous went to the post office and signed for the certified mail containing the legal documents
You testify yous constitute the papers on your forepart door but didn't do anything
You show that y'all got the papers simply thought they were fake

Constructive Cognition Examples:

The creditor sent certified mailings to the right address
The creditor lists the debt on your credit written report
You have been garnished 1 or more times and did non act

To prevail on a motion to vacate a default judgment, you lot demand to evidence:

You had no cognition of the suit and were non garnished
That you lot have acted chop-chop to resolve once you do discover (from one month to no more twelve months)
That you have a meritorious defense to the debt

Price to vacate a default judgment:

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

Is information technology worth fighting a default judgment?

Earlier attempting to vacate a default judgment, you want to expect at the cost do good assay. Here are our rules of thumb for when you should attempt 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 $one,500.00 (with a risk of loss) when you could settle that matter for a similar or lesser amount. In this scenario, y'all should not attempt to vacate.
Exercise you have enough other debts to where if y'all filed for defalcation protection, information technology would be cheaper, more certain, and with better benefit? And so if you lot owe $20,000.00 total across five accounts, i of which you were improperly served and received a default judgment upon, yous could file bankruptcy on all of the debts for about $2,000.00 give or take. In this scenario, yous should non try to vacate.
If the cost of the motility to vacate is nearly v% of the debt and worth the risk and would salve you from filing a bankruptcy. For example, there was a car crash where the insurance company obtain a $100,000.00 judgment confronting you without your cognition and now you are past the statute of limitations if you vacate the judgment and you have no other debts. In this scenario, you lot should try to vacate.
If for license, security clearance, interest rate, political, or other reasons it is important that in that location is no judgment on your record. In this scenario, you lot should try to vacate (though it might not be price effective) if y'all feel information technology is worth it, important, or essential.

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

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Source: https://wadebtlaw.com/improper-service/