Would this be considered failure to properly serve the defendant? What do I do?

Asked over 1 year ago - Dallas, TX

I am being threatened to be taken to small claims court for damage on a vehicle who failed to yield while turning left and collided with me going straight on a green light. They demand my insurance company compensates for the damages on the vehicle. I notified the potential plaintiff of my preferred method of contact and the address I would prefer to be served for summon since the address on my Texas DL is no longer valid. They insisted on using the address on my Texas Card. I made them aware I would be saving the message to document proof of notification of a valid address of my preference for service. Would they win by default if I am not served? Or can I prove failure to serve the defendant properly with my documentation of the message? case be thrown out of court or judgement vacated

Attorney answers (2)

  1. Don Karotkin

    Contributor Level 16

    2

    Lawyers agree

    Answered . Since you apparently have auto liability insurance that applies here, these are issues you should not have to deal with on your own. If and when you are sued, your insurer will hire and pay a lawyer to represent you and he or she will guide you through the legal process. All you need to do is to notify your insurer immediately if and when you receive any papers or notices of any description, regardless of method of delivery, regarding this claim or suit.

    To answer your question directly, battles over the propriety of service of citation in a lawsuit are almost never worth fighting because, should the judge agree with you that service is defective, the rules provide that you are deemed to have made an appearance in the case when the judge makes that decision. Therefore, you are still effectively sued and you still have to answer timely or suffer a default. In plain English, therefore, if you have been sued and you know it, you might as well just go ahead and file an answer and start defending the case because you'll end up having to do that in any event.

    Good luck.

  2. Adam Jay Jaffe

    Pro

    Contributor Level 15

    Answered . I am not licensed in any state other than CA. These statements are for information purposes only and not intended as legal advice. No attorney-client relationship has been created or implied.

    That being said, in order for service to be effective, someone has to receive the service. If no one receives the service, a judgement cannot be had against you. They can try to post notice on your OLD address and then mail you a copy (which may be permissible in TX), but it may also be improper.

    If you are familiar with the court system and when the matter is filed, etc. go to court even if you were not served properly. This is called waiver of service. Just be prepared to defend yourself.

    On the off chance that a judgment is taken against you, you will EVENTUALLY find out about it. From the court documents, you will be able to file all of the appropriate motions to TRY to get the judgment overturned.

    In the interim, continue speaking with your insurance company, their insurance company, etc. through WRITING. Creating a pape trail establishing your correct address will be beneficial should you need to try to overturn a judgment. Also, consult with a local auto accident attorney ASAP so that she/he can be prepared to assist. Also, if you insurance company is defending you, they may pay for an attorney. Ask!!!

    Adam Jaffe Law Office of Adam Jay Jaffe 124 Lomas Santa Fe Dr, #204 Solana Beach, CA 92075 (619) 810-7964... more

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