Posted on February 23, 2015 in Debtor and Creditor
This month I’ve met with two potential clients, both of whom fell victim to “alternative service”, a process wherein judgments were entered, against them, without their knowledge. The first client explained to me that her home was sold at foreclosure, in September, 2013, without her knowledge of the proceedings. The second client explained that he had recently attempted to refinance his home, but was halted when he learned that in 1994, a judgment had been entered against him and a lien thereafter, placed against his home, again, without his knowledge. At the time of the entry of the judgment, the amount was $25,000.00. With post-judgment interest, the debt has now grown to more than $59,000.00!
Can this be? Sure it can. I hear it all the time: "The court action can’t proceed unless I’m personally served, right?" "There can be no judgment against me since I was never personally served, right?" Wrong! While we all watch television programs that regularly depict a hard working process server trying to serve a very crafty and elusive defendant, please know that television is not real life and, worse yet, does not always portray all areas of the law. Sure, personal service is the preferred method of effective service, but it is certainly not the only method of effective service.
Traditionally and preferably, service, of a civil action, is made personally, upon a defendant, by way of hand delivery or certified mail, restricted delivery. In addition, service may be made upon another responsible adult person who may reside in the home of the defendant.
But what happens when the defendant successfully avoids this preferred method of service? Attempts at personal service stops, things get quiet and the defendant proceeds, under the mistaken belief, that he or she has won the battle. But be forewarned, with the defendant’s guard now down, the plaintiff while frustrated, moves on to fight the war! How? By way of what ultimately, appears to be silent assassin, by a ninja in the night, and worse yet, without the knowledge of the defendant.
The plaintiff need only petition and show the court that the defendant is purposefully making him or herself unavailable, that they cannot be found and/or that they are purposefully evading service. To be successful, the plaintiff need only show the court that good faith efforts, to locate and/or serve the defendant, were made but unsuccessful. What follows is the court’s blessing to serve the defendant in an alternative manner.
Such alternative service includes regular mail, as opposed to hand-delivered certified mail. Alternative service may also include service by publication, in a newspaper of "general circulation" in the area of the defendant’s last know address. Which newspaper will be the choice of the plaintiff. Which publication days will also be the choice of the plaintiff. Thus, the defendant will only know that he or she has been served if the defendant just so happens to find the notice, by picking up that particular paper, on that particular day or days, turning to the legal notices section and landing upon the exact specific notice. Whether the defendant sees it or not, service has been perfected and the case is ready to proceed. Another type of permitted alternative service is service by posting on the courthouse door. Again, unless the defendant knows what day the Sheriff will post the notice, exactly where the posting will occur and/or for how long, the odds that the defendant will see the notice and learn of the service, is slim to none. In Prince George’s County, a glance at this articles’ related picture shows that the sheriff’s bulletin board of notice is located, at the Commissioner’s Entrance”, in the rear of the Court’s main entrance, just before the street dead ends to where the daily prisoners are picked up and dropped off. Not the most well traveled and observed location. However, once posted, service is perfected without actual knowledge of the defendant.
Following either method of alternative service, the court proceedings will continue – without participation by, or representation on behalf of, the defendant. Thus, the defendant will have had no opportunity to rebut any of the allegations that were initially brought about. More specifically, there will be no opportunity to speak; to be heard; to present any evidence or witnesses or likely, to appeal any decision. Result? Judgments, liens, wage garnishments, bank attachments, foreclosures and the like. All because the defendant thought he or she had beaten the system.
The final tale to the story is that the client arrives in my office feeling that things have gone unfairly and seeking a “fix” to the problem, while taking no responsibility for his or her own actions. Of course, there are always solutions, however, some are certainly less desirable than others. As my grandmother used to say "You can’t fight what you can’t see". So, if you are a party to a pending civil action or know of an upcoming action, do yourself a favor – open the regularly delivered mail and most importantly, read it – everyday; go to the post office and pick up the certified mail that’s waiting for you and accept personal service of all legal documents. What’s in those documents will not change. What will change is your ability to obtain legal counsel and have a fighting chance!
Should you require assistance with civil proceeding, call The Kelsey Law Firm (301) 390-9060 for additional assistance, including a proper and thorough case analysis.
Thanks for reading. Please note that I am licensed to practice law in Maryland and the District of Columbia. This topic was based off of general rules of civil procedure in and around the State of Maryland. Please note that every case is different and nothing herein is intended as specific legal advice. Please feel free to learn more about my practice at www.kelseylaw.net and to seek legal advice when you feel it necessary.
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