DEBT COLLECTORS AND CREDITORS ARE NOT ALLOWED TO SUE YOU WITHOUT GIVING YOU NOTICE THAT YOU HAVE BEEN SUED.
Has a debt collector or creditor sued you and failed to properly notify you of the lawsuit?
All lawsuits require proper service; meaning the plaintiff must provide the defendant a copy of the complaint against them and a summons, which tells them how and when to respond to the Complaint. While there are a few different options for proper service, the main one used in a new lawsuit is sheriff’s service. With this type of service, a sheriff’s deputy will personally deliver the summons and complaint to the address listed on the summons. If no one who appears to be at least 18 years old is home, the deputy will leave the documents on the door. Most sheriffs’ departments also mail a copy of the service documents. Once a person has been ‘served’ by the sheriff’s department, the sheriff will file a return of summons with the court, showing that it mailed and personally delivered a copy of the summons and complaint. The return will also generally say whether copies were personally handed to someone at the address or if they were left on the door. The other main type of service that may be used is certified mail. If a summons and complaint are mailed by certified mail someone at the address must sign for the documents and their signature is returned on a signature card to the court or to the person who mailed the documents. When the signature card has been returned to or filed with the Court, service has been completed.
It is not uncommon for a Plaintiff to have the wrong address for a Defendant nor is it unheard of for the person living at that address to accept legal service for someone else and then ignore it. However, if a Plaintiff cannot prove that the proper person was served, service it not complete and the Plaintiff cannot proceed to the wage garnishment part of the lawsuit.
Debt collectors and creditors may not care if they serve the proper person though, as long as it appears that service was completed or no one notices that it was not. This way, they can prevent you from responding and can go right to garnishing your wages. Not only does failure to properly serve a defendant notice of a lawsuit violate state rules of civil procedure, it violates the FDCPA and RFDCPA, which prohibit debt collectors and creditors from using any unfair or unconscionable means to collect or attempt to collect the alleged debt. Suing someone and not providing them with notice of the suite or allowing them a chance to respond in order to skip easily to garnishing their wages is clearly unfair.
Has a creditor or debt collector sued you and not properly served you with the summons and complaint? Contact our office today at 1-800-219-3577, for a free, no obligation consultation.