How to prove you were not served properly

In civil or criminal lawsuits, proper service stands as a vital component of due process. It also relates to the issues of legal services and reasons for improper services.

The civil lawsuit would be considered invalid if the defendant is not served or has not received formal notice of the lawsuit. However, the query how to prove you were not served properly is of great significance.

In court proceedings, proper service is an important part of due process because it ensures that court documents are delivered to the defendant properly. Proper service makes sure that you are treated fairly.

In this article, we will learn about the legal requirements for proper service, how improper service can affect your case, and how to take legal action against improper service.

Understanding Legal Service

Proper service is a vital component that serves to notify the defendant of the lawsuit. When the defendant is served properly then the court can also established jurisdiction over them, thus making it mandatory for the defendant to respond to the lawsuit.

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Moreover, proper service also enables the person to prepare their defense and participate in the proceedings.

Depending on the case and the availability of the defendant, there are various methods of serving court documents.

Some of them are discussed as under: -

Personal Service

Personal service means that the document is physically delivered to the defendant by the process server. Personal service is, of course, the oldest but the most effective and reliable method because it involves direct contact with the individual.

Personal service leaves little room for disputes as it involves handing over the paper directly to the recipient.

Service by Mail

In this method, the court document is sent to the defendant via certified or registered mail. It is important to learn that this method is used when the personal service has proved useless.

Substituted Service

When the above-mentioned methods have failed, then the court document is delivered to the defendant’s residence or workplace. It must be delivered to someone mature enough to understand court documents.

Service by Publication

Service by publication is the last resort when all the above methods have failed.

Service by publication involves publishing the document in the newspaper or any other court-approved publication in the relevant defendant’s county or jurisdiction.

Legal Requirements for Proper Service

Usually, the service of the process often varies depending on jurisdiction. The rules and requirements differ according to different jurisdictions in different states.

For example, the Federal Rules of Civil Procedure (FRCP) usually govern civil legal proceedings in the federal jurisdiction.

In the United States, most states usually base their service of process rules on the FRCP with slight modifications. It includes;

Timeframe for Service

As we mentioned earlier, most jurisdictions vary depending on the area. The law provides enough timeframe for the serving party to deliver court documents to the recipient.

For instance, in California, the law holds that summons and complaints must be served within three years after the lawsuit is commenced against the defendant.

Similarly, in New York, the law states that you are required to serve the documents within four months after filing with the county clerk.

Person Eligible to Serve

It is important to state that any person can serve court documents but the individual must be at least 18 and a lawful citizen or resident of the United States.

However, it is suggested to hire a professional server in order to avoid service errors which may delay or hinder the legal proceedings.

A professional process server is someone who is trained to serve court documents. Also, the individual who is going to serve must not be a party to the lawsuit.

Proper Documentation to Prove the Service

To avoid any irregularities, the serving party must not be a part of the lawsuit. The serving party is required to properly document the proof of service.

The document must contain the name of the individual served, as well as the date, time, place, and method of service. For instance, in California, you are required to file a proof of service within 60 days after serving the defendant.

In New York, you should file the affidavit or proof of service as early as 20 days after serving the party. In Oregon, the proof of service must be submitted within 63 days after the lawsuit.

In any case, if you fail to file the proof of service, the court has the jurisdiction to send you a notice. The notice will state that the case is going to be dismissed if you do not file the proof of service within the next 28 days.

The U.S. Constitution On the Service of Process

It is important to mention here that the United States Constitution holds that every person has the right to be informed about the court summons through a regulated procedure.

According to the U.S. Constitution, every defendant has the right to be served the legal papers by a person who is above 18, even though the law may differ in different states.

What Happens if Someone is Not Served Properly?

Proper service is an integral part of legal proceedings because it allows the defendant time to ask for legal advice to prepare for the court hearings. If the service delivery is invalid, then it can lead to hindrance in the legal process.

To avoid court papers being served incorrectly, take the help of a professional process server. Hiring a professional process server is important because he would have a sound understanding of how the process service procedures work.

Another benefit of hiring a professional process server is that he will be able to track down any inconvenience quickly and accurately. Hiring a professional will make things easy and pave the way for smooth legal proceedings.

What if the Process Server on Wrong Person?

Sometimes, due to various reasons, the process server delivers the documents to the wrong individual. It happens when a server serves a process to an outdated address or a deceased defendant.

Importantly, mistaken identity can seriously hinder your case.

In any case, if the defendant becomes aware that the process server is being served to the wrong person then the person may contest it. The defendant can file a motion and solicit to dismiss the lawsuit or start the case all over again.

If there is an Incorrect Name on Legal Documents?

It is not uncommon that the process server serves the document to the right person and the defendant discovers that the documents do not contain the correct legal name.

When the court seeks to correct the name of the defendant, it must determine whether a reasonable person could determine that the individual identified on the legal document is, in fact, the defendant.

The court can then release a court order to correct the misspelling of the name.

What do I do if I am Improperly Served?

As we all know the legal process is pretty complicated and it is very easy to fake service and hard to disprove. In similar circumstances, the burden to prove the defense is on the defendant.

For instance, if you are accused of murder, the state will not do anything to prove that you did it in self defense. It is for you to prove that you did it in self defense.

Therefore, if a process server claims that they served you and submit this lie in the court then you must prove in the court of law that you were not served and that the server is lying.

It is important to understand that proving in court that you were not served is to prove a negative. Take this example; you are home with your family.

The server appears outside your home and sees the lights are on but due to laziness does not serve you and tells a lie in the court that they served you. In this case, even if your family member submits in court that you are not served, the court will consider it as a bias.

In similar cases, the court usually listens to the server and believes that you are being served. The only way to prove in court that you are not served is to present evidence.

Evidence to Prove You Were Not Served

If you want to prove that you are not served then you will need some sort of evidence, be that documentary or video evidence. Here we will give you some examples to start with: -

• Submit plane tickets or transportation tickets to show that you were out of the area.
• You can also present receipts from a restaurant, coffee shop, or toll bridge showing that you were somewhere else.
• You can also submit testimony from a third party such as a religious leader.
• Present testimony from a co-worker to enact that you were at work.
• You can also share testimony from a teacher to establish that you were in class.
• You can also share video evidence if you have a video camera installed at your front door
• You can also share a video game log showing that you were in the middle of a mission during the time of alleged service
• You can also submit a work log to show that you were at work during the alleged service time

You must note that if the testimony is from a family member or a close friend, then it is possible that the court may discredit the testimony unless it makes sense.

Usually, the best evidence that can help you in such matters is to submit written or video evidence that is neutral.

How Improper Service can Affect your Case?

It is significant to recall that a service is considered improper when the serving party fails to get in line with the rules and regulations that govern that service or process. Consequently, improper service may lead to the dismissal of your case.

The court can only move forward with legal matters only if the defendant is served properly within a set timeframe. If the serving party fails to serve properly, it can also lead to delays and financial losses.

In such cases, the respondent has the right to file a motion in order to contest the validity of the service. This can lead to delays in the hearings of your case.

In any case, if the court decides in favor of the defendant, you may have to face financial sanctions including reimbursement of the attorney fees.

Common Reasons for Improper Service

There can be many reasons which may lead to improper service on the part of the serving party or the part of the defendant party. In the following section, we will discuss some common reasons for improper service: -

Mistaken Identity

The first reason that may lead to improper service is mistaken identity. It is possible that the serving party may mistakenly deliver the court document to the wrong individual.

It may be due to similarity in the names or addresses of the defendants. Therefore, if you are a serving party, you should properly verify the identity or address of the defendant.

Incorrect Address

It is also possible that the defendant’s identity is correct but they have relocated to a new residence. If the serving party does not verify the recipient’s current address, resultantly you may deliver the court document to the wrong address.

If the current address is not verified properly beforehand, the document may not reach the intended recipient. This automatically affects your case badly.

Failure to Follow Procedural Requirements

If the serving party does not follow the procedural requirements within a specified timeframe then it may also lead to improper service.

Serving the defendant electronically without their proper consent and court approval can also result in improper service.

In such cases, you will have the right to file an affidavit to the court. If you fail to submit an affidavit within the specified timeframe, then it may also lead to the dismissal of the case.

Service to Unauthorized Individuals

Another reason for improper service is when the serving party hands over the court document to the relative of the defendant who is not mature.

It is also possible that the recipient may also not be related to the defendant which also leads to improper service. For instance, in many states, the defendant’s relative must be 18 or over 18 and understand the law.

Taking Legal Action for Improper Service

If you think you are not served properly then first of all you must prove it in the court of law. The laws of different states allow the defendant to file a motion and contest improper service.

Following are the legal actions that you can take if you are not served properly: -

Consult with your Attorney

As we have discussed earlier, there could be complications in cases where you are not served properly. Therefore, before taking any legal action, it is advisable to take help from your attorney.

The benefit of consulting a lawyer is that the attorney will entirely review your case and provide you an expert advice on how to proceed further.

The attorney will also discuss the hidden aspects of the case and will represent you in court to protect your rights during the hearings.

File a Motion to Dismiss or Quash

After consultation with the lawyer, the attorney will see if you have strong evidence to submit. In case, you have strong evidence then the lawyer can file a motion on your behalf to dismiss the service.

While filing a motion, you can include a caption that helps identify the court, the case name, and the case number.

Afterward, you can write a statement of fact to describe how the service was improper. The statement of fact is followed by a legally logical argument in order to explain why the court must dismiss or quash the case on the grounds of improper service.

Attend Hearings Related to the Case

Once you file a motion along with proof in the court of law, the court may fix a specific date for a hearing. You should attend all the hearings to present your side of the story along with the evidence.

The hearings will also give enough time to the other parties to present their own side of the story.

The Implications of Proving Improper Service

After filing a motion and submitting evidence in court, it is possible that the court may rule that you were not served properly. In this case, it can potentially lead to several implications, which include: -

Case Dismissal

The first implication is that the court may dismiss or quash the case, hence terminating the entire lawsuit. The court may state that they lack jurisdiction over you or the violation of due process.

Sanctions Against the Serving Party

In improper service, the court can also rule in favor of you while imposing sanctions on the serving party. These sanctions include financial fines and ordering the party to reimburse the attorney fees as well.

Re-establishing a Timeframe for Proper Service

In case, the court does not dismiss your case, they may release court orders against the serving party. The serving party will give a sort of warning to serve the documents in compliance with the procedural requirements.

Preventive Measures to Avoid Improper Service

In order to avoid improper service, here are some steps that you must follow to do so: -

keep an Accurate Record of your Address

As we have discussed, mostly improper service occurs due to the wrong address of the defendants. Therefore, to ensure the court papers are delivered to you on time, you must update your current address.

You can provide the correct address when you are registering with any government agency, bank, insurance, religious organization, social group, or any other relevant authority.

You must update your name and current address with these organizations.

Inform Close Contacts of any Pending Legal Issues

To avoid improper service, you must inform your family members, friends, or neighbors of any pending legal issues.

If they are aware that you are involved in any pending legal case, they may assist you by receiving the court document on your behalf.

Install Surveillance Measures

To avoid improper service and also store video evidence, you should install surveillance footage on your front door. It serves as strong evidence in the law because it records events without any manipulations.

Updating Address and Consulting Attorney

We have discussed in detail about improper service and what are the legal implications of improper service for your case.

As discussed earlier, improper service can lead to difficulties in your case. It can lead to delay in your case, can cost you financial losses, and may also weaken your case.

Therefore, it is significant to correct your name and the current address so that you receive the court documents at your exact address. In this way, you can avoid improper service and delays in your case.

Another important aspect is that you consult an attorney in such matters. As these cases can be complex and may lead to difficulties in hearings, therefore it is necessary to get an expert opinion from an established attorney.

Consultation with an established attorney is important because he/she can review your case entirely and give you an expert opinion. The lawyer can also help you record evidence that may strengthen your case in a court of law.

Conclusion

According to the United States laws, every defendant has the right to be served properly for a fair and transparent case trial. Due to mistaken identity, incorrect address, failure to follow procedural requirements, and service to unauthorized individuals you may be served improperly.

How to prove you were not served properly? It is possible that you may not be served properly, in which case you have the right to file a motion along with evidence to support your claim that you are being served improperly.

Improper service can be due to an incorrect name or wrong address and can implicate your case in various ways; it can lead to delays in your case and financial costs.

We have detailed improper service and common reasons behind it along with its implications for your case.

Frequently Asked Questions

What if I was not served properly in California?

In California, if you are not served properly within due time, then the case cannot move ahead. You have to prove in court that you are not served properly.

What happens if the process server serves the wrong address?

If a wrong address is served, then you have the right to contest the case in a court of law. You can file a motion along with the evidence to contest the process server.

How do you get around being served?

If you want to be served properly, you will need to update your name and current address to avoid improper service.

How do you serve someone who is avoiding you?

If someone is avoiding you, there are various ways through which you can serve them. You can serve them through mail, post address, or by publishing in a county newspaper.