What is the proper process to serve a summons?

Get Legal Help Today

 Secured with SHA-256 Encryption

What is the proper process to serve a summons?

A summons was served to my old address and the current residents contacted me yesterday to let me know I had some very personal information that was left in their mail box. I’d like to know what the process was and if it was even legal to leave such personal information. It was not in any sort or envelope and if someone wanted to steal my SSN or my mom’s and all our other personal information, they sure could have.

Asked on December 27, 2011 under Bankruptcy Law, New Mexico

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Leaving the summons and complaint (the complaint is the lawsuit attached to the summons) in a mailbox even if that had been your current address is not valid service of process.  The process server should have handed it to you or if it had been delivered to your correct address and you weren't home, it could have been left with another family member and a copy could have then been mailed to you.

Delivering it to the wrong address and leaving it in the mailbox is not valid service of process.

You could do nothing and wait until a default judgment is entered against you (for failure to file with the court a timely answer to the complaint and serve it by mail on the opposing party) and then file a motion to set aside the default based on your argument of not being properly served.  If the court grants your motion to set aside the default, the case is then back on track and litigation will continue.

The opposing party will claim that since you found out about the summons and complaint that you had notice of it, you should have responded by filing a timely answer to the complaint and serving it by mail on the opposing party.

Instead of doing nothing and wating for the default to be entered and then filing a motion to set aside the default, you could file a timely answer to the complaint with the court and serve it by mail on the opposing party.  The answer denies the allegations in the complaint.  You could also challenge service of process in the answer.

I would probably wait for the default to be entered and then file a motion to set aside the default challenging service of process.  The risk is that if your motion is denied, then you have lost the case by default.

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Leaving the summons and complaint (the complaint is the lawsuit attached to the summons) in a mailbox even if that had been your current address is not valid service of process.  The process server should have handed it to you or if it had been delivered to your correct address and you weren't home, it could have been left with another family member and a copy could have then been mailed to you.

Delivering it to the wrong address and leaving it in the mailbox is not valid service of process.

You could do nothing and wait until a default judgment is entered against you (for failure to file with the court a timely answer to the complaint and serve it by mail on the opposing party) and then file a motion to set aside the default based on your argument of not being properly served.  If the court grants your motion to set aside the default, the case is then back on track and litigation will continue.

The opposing party will claim that since you found out about the summons and complaint that you had notice of it, you should have responded by filing a timely answer to the complaint and serving it by mail on the opposing party.

Instead of doing nothing and wating for the default to be entered and then filing a motion to set aside the default, you could file a timely answer to the complaint with the court and serve it by mail on the opposing party.  The answer denies the allegations in the complaint.  You could also challenge service of process in the answer.

I would probably wait for the default to be entered and then file a motion to set aside the default challenging service of process.  The risk is that if your motion is denied, then you have lost the case by default.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

Get Legal Help Today

Find the right lawyer for your legal issue.

 Secured with SHA-256 Encryption