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, they 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.

In California, a summons may be served by personal delivery [California Code of Civil Procedure (CCP) Sec. 415.10], or by leaving a copy at the person’s office, [CCP Sec. 415.20(a)] or at the person’s dwelling house, usual place of abode, or usual place of business, with a person over age 18, and thereafter mailing a copy to the person to be served. [CCP Sec. 415.20(b)].

A summons may also be served by publication, if the plaintiff files a motion with the court stating that the defendant “cannot with reasonable diligence be served in another manner,” then obtains a court order authorizing service by publication. [CCP Sec. 415.50].

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.

Unfortunately, bogus service of process is a fairly common practice among process servers working for bill collectors. The technique 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.

One of the worst cases of bogus service I’ve seen is a process server’s declaration that he personally served the defendant, at the defendant’s residence, at 7:00 a.m. on a certain date. It turned out that the address for the defendant’s “residence” was a drug store that rented out personal mail boxes, and that this drug store never opened before 9:00 a.m.

To summarize, in California, you are served properly if (a) you personally are given a copy of the summons and complaint – it need not be placed in your hands. Dropping it at your feet is sufficient, or (b) someone over age 18 at your residence or place of business was delivered the summons, and then you were mailed a copy.

Just mailing you a copy, or leaving a copy in your mailbox or in your bushes, is not proper service.
A later newsletter will discuss your options if you were not properly served.

The foregoing has been excerpted from Mr. Crowder’s book, Lawsuit SURVIVAL 101, available for purchase here.