Types of Improper Service
Sewer service: The process server falsely claims to have served you but never actually did. Named because the papers go "down the sewer" rather than to the defendant. This is shockingly common -- multiple process serving companies have been indicted for systemic sewer service. Wrong address: Papers served at an address where you don't live. Wrong person: Papers given to someone who doesn't meet the requirements for substitute service. Defective publication: Service by newspaper publication without adequate effort to locate you first.
Improper service is the strongest ground for vacating a default judgment because it means the court never had jurisdiction over you. Without proper service, the entire proceeding is a legal nullity.
How to Prove Improper Service
Document your address: Gather proof of where you actually lived when service was allegedly made -- lease agreements, utility bills, driver's license, mail records. Challenge the affidavit: Review the process server's affidavit of service. Does it describe your appearance correctly? Was the address correct? Was the date a day you were verifiably elsewhere? Get witness statements: If the affidavit says papers were given to a household member, get that person's affidavit denying receipt.
GPS records: Some process servers are now required to use GPS tracking. If available, these records can prove the server never went to your address. Cell phone location data can prove you weren't at the service location on the alleged date.
Filing the Motion
Your motion to vacate based on improper service should include: 1. A declaration under oath stating you were never served (or that service was defective). 2. Supporting evidence (address documentation, witness affidavits, location records). 3. A proposed answer to the complaint showing your defenses. 4. An argument that the judgment is void for lack of personal jurisdiction.
Because void judgments can be challenged at any time, there's typically no deadline for motions based on improper service. However, courts are more receptive when you act promptly after discovering the judgment.
Frequently Asked Questions
How common is sewer service?
More common than most people realize. A 2010 investigation in New York found that one process serving company had committed sewer service in thousands of cases. The New York Attorney General has prosecuted multiple firms for this practice. If you suspect sewer service, you're not alone.
What if the process server lied on the affidavit?
A false affidavit of service is perjury and can be reported to law enforcement. For your motion to vacate, present evidence contradicting the affidavit. If the server's description of the person served doesn't match anyone at your address, or the address is wrong, that's strong evidence of a false affidavit.
Can I sue the process server for sewer service?
Potentially yes. If you suffered damages from a false affidavit of service (wage garnishment, bank levy, credit damage), you may have claims against the process server and the creditor's attorney who relied on the false affidavit. Consult with a consumer rights attorney.
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