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Avoiding Service of Process in Debt Collection Cases

Avoiding the Process Server in Debt Collection Cases

The nearly universal advice of process servers and collection lawyers is that you should never attempt to avoid service of process. Many lawyers who represent people being chased by debt collectors also recommend the same thing. Is this good advice, though?

That depends.

Avoiding Process Could Make them Dismiss the Suit

Debt collectors are usually not the most energetic litigants, and anything that increases their costs of suit makes them think twice. On the other hand, getting you served by alternate means is not extremely difficult or expensive for them. Our conclusion is that avoiding the process server can have some benefits, but there are risks and costs. You must pay attention to the lawsuit if you avoid service.

Purpose and Effect of Service of Process

For a court to obtain jurisdiction, the plaintiff must serve you with the lawsuit. This is because of a constitutional requirement of “notice” any time the state exercises judicial power against a person.[1] The most effective form of service is physically handing a copy of the lawsuit to the defendant. The process server gives you the suit, fills out an “affidavit of service” (sworn statement you got it), and the case proceeds.

Is it Possible to Avoid the Process Server?

Given the lives most of us lead, it is not practical to avoid the process server if the process server is determined and a little bit resourceful. Many, and perhaps most, of them are, but debt collection is characterized by a factory approach at every level. You have a better chance of avoiding service of debt collection cases than other kinds of cases.

Even for process servers, time is money, and a very significant number of cases are dismissed for failure to obtain service. This is at least partly because so many debtors move from place to place – process servers are never sure whether you’re still living where they’re trying to find you, and they hate to waste the time looking if you aren’t.

Personal Service is NOT Required

Getting you physically served is obviously not always possible, and it isn’t always required.

Under some circumstances, other ways of serving the suit can be allowed. What these other things are is established by state law but can include giving the suit to certain members of your household, or serving you through mail or “publication” (which is basically advertising in a legal publication). None of these things would normally require any sort of acknowledgment by you to be effective – which means that the suit could go forward whether or not you ever heard about it. If you avoid service, this is the risk you take.

It is also true that publishing something in a legal periodical, for example, will not quickly (or ever) come to your attention. Unless you are looking for it.

Avoiding Process Server

Let’s consider the crudest way to avoid the process server. The service processor meets you in front of your house, says “Are you Mr. Smith,” and when you say “yes,” attempts to hand you the lawsuit. You run away without accepting it.

That would be considered “constructive service” – in the eyes of the law, you are “served” when you are offered the suit regardless of whether you take it or not. If you run away after the introduction and offer, you have probably been served. How far does that go? What if you see the process server and run away before the introduction, and the process server never gets closer than 20 feet? Or what if you see the process server coming and close and lock the door? He knocks and introduces himself, but you don’t answer or make a sound?

These are gray areas in the law. As a practical matter, sometimes the process server will swear that he served you, and the court will accept that unless you challenge it. Process servers do NOT always tell the truth. On the contrary, they frequently lie, and if they claim, rightly or wrongly, that you have been served, our suggestion, usually, is to defend yourself from the lawsuit.

Evading Service

What if you move to a different residence? Will that prevent the process server from finding you?

It might, and the wisdom of this would depend largely on what you’re trying to accomplish. If you don’t mind being served by publication, and you’re just hoping that the collectors won’t find you to collect the money, then moving might be effective. They have plenty of ways to find you even if you move, but the practical fact is that they often don’t spend the money.  A judgment would hurt you, though, in various ways other than just collection.

Of course, it is also very possible that if you move the debt collector will just drop the case – they often do.

If you think you may be getting sued sometime, it makes sense to watch the courts and see if you are. If you find that you are being sued, then the next question is whether they ever claim to have served you. Watch for that – if they do make that claim, then you will need to do something about it or else they’ll get a default judgment.

avoiding process server has a price
avoiding process server has a price

The Cost of Avoiding the Process Server

Process servers are one of the things that people hate most about being in debt. You never feel safe about  opening your door, you worry about strangers, and you’re afraid to answer your phone. As we discuss below, if you are being chased by a debt collector, there is no need to be afraid – you can and should win that case. We don’t suggest that you try to make the process server’s job easier, but there’s nothing to fear and no need to hide from strangers.

What if it Just Happens – they Just Never Reach You

We think you should never go out of your way to make things convenient or easy for the process server. It’s their job to get you. If they can’t do it, that isn’t legally your problem and in fact will benefit you.

Sometimes they leave you a note asking you to come get the suit or asking when you’ll be around to be served. You probably don’t have to answer and probably shouldn’t. This trick does show a willingness to use cunning and trickery, though. You must be careful that the process server doesn’t lie about serving you. Again, process servers often lie.

What to Do

The chief danger, once you have been sued, is that the debt collector will claim you have been served . If you have become alerted to a suit against you, you should monitor the case and see if that happens. Sometimes it will happen, but often it will not, and where it does not, the case will eventually be dismissed.

When it does happen, however, you will need to take action to defend yourself. Until it is dismissed, you must not forget about the case even if they never serve you. You are gaining some time. Use it to learn how to defend yourself. Or use it to put yourself in a better position to settle or win the case.

What Are You Running From

We have treated debt lawsuits as a danger and suggested that avoidance is not always a bad idea. It will result in delay of the suit and sometimes its complete dismissal, both of which are good things.

Lawsuits are always dangerous and usually expensive, so we’re confident our approach makes sense. On the other hand, lawsuits are not all the same. Your chance of winning a suit brought by a junk debt buyer is very good. Debt collectors would lose almost all their cases if they were fairly run and intelligently fought. Many original creditors should lose their cases, too. So fighting is a good idea.

Don’t make the process servers’ jobs easier. But if they do get it done, you should certainly not lose heart. Fighting will give you an excellent chance of winning. Even if you can’t win, fighting will still delay the suit and improve your chances of settling on better terms.

[1] In cases of real estate and certain other things, the thing being sued over – your apartment, for example, in an eviction action – is considered the “defendant” in the eyes of the law. Stapling or taping a notice of suit on the door, perhaps adequately serves the house.