Were you properly notified?
Being properly "served" with a summons and complaint is a legal requirement of any lawsuit. "Service" means the delivery of a legal document (Summons) that notifies you of the lawsuit. The summons itself is the actual notice of the lawsuit.
New York State law specifies limited instances in which proper service is carried out. In short, service sufficient to satisfy constitutional standards occurs in the following instances:
- Personal delivery of the summons to you; or
- Personal delivery to a person of "suitable age and discretion" at your home or business plus follow-up mailing; or
- Nailing the summons to your door with follow-up mailing only if it is proved that the prior two methods cannot be made with due diligence plus follow-up mailing.
Unfortunately, too many affidavits of service contain inaccuracies. Below are some answers to common questions about service. Additional notice requirements are now mandated under the Consumer Credit Fairness Act. For more information about it, see 5 Powerful Lawsuit Defenses for New York Debtors in 2022.
Frequently Asked Questions:
What is "sewer service"?
Answer: "Sewer service" is the practice whereby process servers deliberately fail to serve the summons and then falsify an affidavit of service, which is filed in court.
What is an affidavit of service?
Answer: The legal document prepared by a process server swearing to the truthfulness of the facts alleging proper delivery of the papers to you. Always remember, receiving the summons in the mail alone is not enough.
Must I be personally served, or sign for documents when served?
Answer: No. Personal service is not required to subject you to the court's authority. Nor must you sign for any court documents received. The court – and the public – rely on the process servers to properly serve and create truthful affidavits. This reliance is undermined constantly.
How big of a problem is sewer service?
Answer: Sewer service is worse today than ever before. In 1986, 48,000 default judgments due to sewer service were entered annually in New York City. Today, approximately 300,000 debt collection lawsuits are filed annually in New York City of which approximately 80% result in default. In our practice, very few of our clients are served personally.
Is "sewer service" legal?
Answer: No. In my opinion, it amounts to the crime of perjury. It also violates city, state, and federal consumer-rights laws.
How do I find out if I've been sued?
Answer: You can search E-Courts. Or you can call us. We will help you find out who sued you, when, and whether it resulted in a default judgment.
What is a default judgment?
Answer: A judgment (a legal declaration that you owe the money) entered against you for failing to appear in court. It's the definitive end of the lawsuit.
How do I know if a default judgment has been entered against me?
Answer: You can search E-Courts. Or call us for a quick and east way to find out. Otherwise, you can find out through the creditor or through the court. Other indications of a judgment are any notifications from a marshal or sheriff, income execution (wage garnishment), restraining notice (bank account seizure), or any letter citing the word "judgment." Also, your credit report may report a judgment entered against you.
Can I protect myself after a judgment has been entered against me?
Answer: Yes! Specific procedural laws exist to "vacate" (remove) the judgment, and permit you to defend yourself in the lawsuit. Bad service is a heavily used ground to overturn a judgment entered against you. Our law practice dedicates itself to vacating default judgments, especially when you have not been properly served with the summons.
Does it matter if I actually owe the debt?
Answer: No! The legitimacy of your debt has nothing to do with your constitutional right to be properly served. Proper service should be your first area of inquiry because you will lose if you do not timely raise it. Do not let any creditor or collection lawyer minimize the importance of proper service.