When a lawsuit is filed, the court requires the plaintiff to personally serve the summons and complaint on the defendant(s). Often times, this is a difficult and arduous task. After a few attempts at personal service, the court may allow substitute service which means the plaintiff can serve notice by publishing a legal notice in a local paper or mail the summons to theast know address. This wouldn't be considered rogue, but the likelihood that a creditor plaintiff had an old or bad address is high and that substitute service would be used resulting in a defendant never finding out about a case.
As I stated, this is t necessarily rogue, so it's not illegal. However, if a defendant was truly unaware of a lawsuit there are remedies, such as a motion to set aside a default judgment. There a time limitations for such a motion, so be sure to contact someone about what your rights are if you are in this scenario.
I see this happen to many people with too much regularity. The first time that a defendant learns of a lawsuit is when their wages are being garnished, their bank account frozen, or they are notified from the county recorder's office that a judgment lien has been recorded with the county. They do this by sending a process server who really does not care (at best) or is willing to file outright false statements under oath (at worst) concerning the address where served or the person to whom the delivery was made (if at all).
I have a blog on options if this happens to a defendant, linked below. Filing a motion to set aside is often the preferred way to remove this, because if not removed, then it can grow at 10% interest and remain on the consumer's credit report until satisfied.
Robert Stempler (please see DISCLAIMER below)
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My colleagues are correct, this happens, and it happens a lot. Most often it is not the collection attorney but a dishonest process server.
The question is, what can you do about it? First, do you owe the debt? Second question, whether or not you owe it, is it worth fighting? If you feel you want to dispute the debt, then pull up the file (often in another state) and take a look at the proof of service. If for any reason the service can be shown to have been invalid, which happens more often than we would like to believe, then you have a good chance of setting aside the judgment. I have done this more than a few times.
Keep in mind that all this procedure does is set the clock back to where it was when the case started. You can be re-served, which means you will have to file your answer and defend yourself. Hence the advice that you take a good look at the amount of the debt and your possible defenses. Another alternative is to call the collection agency and work out a settlement.
What you are describing is a fairly common occurrence. Debt buyers file lawsuits and file proofs of service which reflect that the defendant was "served" with the summons and complaint by personal or substitute service, but from my experience, the proofs of service are often not accurate (i.e., the process server may have passed by your house, or maybe your former house, and dropped a copy of the summons and complaint on the doorstep).
Not knowing about the suit, the defendant does not answer or take any action. Then the plaintiff proceeds to get a default judgment. From there, the creditor can take your assets including funds held in bank accounts.
The primary method for "fighting back" in this situation is to file a motion to set aside the judgment. You may have to hire an attorney to handle this. The attorney gets information from you, and usually a declaration of some kind, and submits the motion. The objective of the motion is to establish that you were never served and the judgment is void.
You should act quickly if you want to pursue that remedy.
This answer is for general information purposes only and is not legal advice. No attorney-client relationship is intended or formed by the posting of this answer.
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