Over the years I have noticed that I revisit the topic of whether or not you should avoid the process server in your debt collection lawsuit. It is usually spurred on by a person I meet with in a consultation who had a default judgment against them because they tried to avoid getting served. Default judgments are bad news. The creditor is now armed with a judgment that they can wreck havoc with and you didn’t even get a chance to defend yourself. But before I go much further let’s back up and discuss what it actually means to be “served”.
What Does it Mean to be Served?
In a civil lawsuit the plaintiff, usually the creditor, debt buyer (i.e. Midland Funding, Portfolio Recovery, etc.) must file a document known as a Complaint with the court. This document contains all of the allegations that the plaintiff has against you the defendant. After filing it with the court the plaintiff is then required to “serve” the complaint and the summons on you. In Arizona they are required to serve you at the place where you live. They have to personally serve you. This means that they literally must come to your house and give you (or someone who looks somewhat responsible) a copy of the complaint and summons. Then, in Arizona, you have twenty (20) days to file a written Answer to their allegations.
Shouldn’t I Try and Avoid Service?
Some people will try to avoid getting served with the lawsuit under the wrong assumption that if you can avoid being served long enough the debt collection lawsuit will simply go away. That is not only not true, but by avoiding service of the lawsuit you are actually making the creditor’s job a lot more simple. If they can’t ever catch you home to serve you with the lawsuit the creditor can go back to the judge and get permission to serve you in an alternative method. In Arizona that is usually through publication or by posting a copy of the lawsuit on your front door. With service via publication the court requires the creditor to have a copy of the summons and complaint printed in the legal section of a local newspaper. No one actually reads this section of the newspaper (and come to think of it, not many people actually read at newspaper at all anymore) and thus what usually happens is you are now aware that it was published, you don’t respond to the lawsuit, and a default judgment is entered against you. Even when the court allows them to serve you by posting a copy of the lawsuit on the door many times the creditor will have a wrong address or the documents will get blown off – or for whatever reason you don’t get it. And then the next thing you know is that a default judgment has been entered and your wages are being garnished.
Fight it Head-On
Debt collection lawsuits brought by debt buyers like Midland Funding are very winnable cases. But it requires that you actively defend the case. If you are facing a debt collection lawsuit and the process server comes by, take service of the documents, find a consumer attorney in your hometown, and put together a strategy that will give you the best chance at winning your case.