Welcomer to "Sewer service"!
"Sewer service" occurs when a process server, who is paid per defendant served, tosses the Summons & Complaint "into the sewer" and then swears under oath that you were properly served. It's easy money for the process server - just think of the time saved trying to actually locate people - with virtually no downside......other than for you.
When the "unserved" defendant fails to respond to the complaint, plaintiff gets a default judgment. The defendant finds out about the judgment for the first time when his or her bank account is levied.....usually the day before the mortgage is due.
This happened to a client of mine when her entire life savings - $26,000 ! - was snatched to satisfy a 2008 judgment. The non-service in this case was so phony, so unrelentingly dishonest, that.…well….I can't even find the right words. Here’s what happened.
First, this: A default judgment taken without proper service is void, and can be set aside with a motion based on lack of service. Before attacking a judgment for non-service, though, one needs to know exactly how service was supposedly made. This information can be found in a document entitled "Proof of Service of Summons" (POSS), filed by the process server, who states under oath the date, time and location of service, and the identity of the person served. It's in the case file at the court, and it's where you start.
In my client's case, the POSS, stated that my client was served on May 5, 2008 at her home by "substitute service". Substitute service occurs when the summons and complaint are delivered, not to the defendant, but to an adult co-occupant of the defendant's residence. Here, the POSS identified the person served as Jane Doe, white female, 58, 5'6", 145 lbs, brown hair brown eyes, co-occupant.
So, now we know that the process server has lied, because my client has always lived alone.
Ordinarily, I'd have my client sign a declaration under oath that there was no co-occupant of her home at the time (or ever). A judge may or not buy that. Keep in mind that judges are totally overloaded with collection cases; they don’t tend to favor debtors;and, many, if not most judges, simply won't re-open an old, closed case based on the defendant's word alone. In this case, it would ordinarily be an uphill fight.
One minor detail, however, changed the odds in my client's favor. That detail?
Eight months before the “co-occupant” of my client’s residence was served, my client's home was burned to the ground in a catastrophic wildfire which destroyed hundreds of homes in northern San Diego County. It was all over the news.
Thus at the time of service, my client and her "co-occupant" had to have resided on a concrete slab in a charred, vacant lot! Because that’s all there was! And my client had the insurance pictures to prove it!
This service was so phony, we didn’t even need to go before a judge. I emailed the stark pictures of the site to opposing counsel along with my client’s insurance claim stating the date of loss, and counsel did the right thing, agreeing to set aside the judgment.
This is just an extreme example of a very common occurance. So, if you are surprised when your bank account is levied or your wages garnished, you may have been the victim of sewer service. If so, the first step is to determine how they claim you were served. Once you know this, you'll know what you need to attack.