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Have You Been Properly Served? It’s Easier Than You Think.

service of collection lawsuit in new yorkThe client came to me with a default judgment for a collection lawsuit. She knew the debt collector had started legal action, but figured she could get out of it because she hadn’t been handed the papers personally.

The rules that govern how you can be served in a collection lawsuit are spelled out neatly in New York law by CPLR 308. Just to be clear, we’re talking about service on a natural person, not a business entity.

I don’t think I need to say this, but you can be served personally with the lawsuit papers so long as you are within the state of New York. Nothing special has to happen, you just need to be within the borders of the state. Sometimes, however, that’s not possible.

How Someone Else Can Be Served On Your Behalf

Collection doesn’t end when you dodge service.  If it did, there would be far fewer judgments against people for bad debts.

A process server can go to your place of business (in other words, you job) or your home and give the lawsuit papers to “a person of suitable age and discretion.” So long that your home or job is in New York, it’s fair game.

As to what constitutes “a person of suitable age and discretion,” suffice to say that if your 6 year-old nephew answers the door, it’s likely not proper for the process server to hand over the documents and expect it to hold up in a court of law.

Once the right person is served, however, the process server must send a copy of the summons and any other papers in the collection lawsuit (such as a complaint, if that’s being served right away) to you by regular, first class, mail (nothing fancy required) to you at either your last-known residence or your actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside that the communication is from a lawyer or is related to a pending lawsuit. That mail has got to go out within 20 days, and proof of service must be filed with the New York court.

Good Old “Nail And Mail”

Let’s say you’ve successfully dodged the server. And let’s say you’ve been able to keep everyone else out of the line of fire as well. You think you’re free of the risk of the lawsuit.

Wrong.  You’re not out of the woods yet.

If all else fails, the collection lawsuit can be served by having the process server affix (nail, tape, staple … whatever) the summons to the door of either your actual place of business or your home (so long as the place is in New York) and then by either mailing the summons to you at your last known residence or by mailing the summons by first class mail to you at your actual place of business. Same deal with the envelope and filing the proof of service, by the way.

No Work, No Home, No Service?

If all else fails – and I do mean ALL else – the lawyers for the folks who started the lawsuit against you can go to court and ask the judge to order an alternative method of service such as publication in the local newspaper.

Make It Easier

If you’re going to be sued in a collection lawsuit then they’re going to figure out a way to make it happen. the way I see it, you can either suck it up and accept the papers or end up with your family members or colleagues at work finding out. There’s not much to be gained by taking that tactic.

The sooner you’re served with the summons in the collection lawsuit, the faster you can either defend the case or figure out another way of dealing with the debt.

Image credit: chris runoff

By |March 1st, 2012|

About the Author:

I've been a consumer protection lawyer since 1995, working to help people end their bill problems. I'm a faculty member at the Student Loan Law Workshop, a nationally recognized speaker, and a long-time member of both the National Association of Consumer Bankruptcy Attorneys and National Association of Consumer Advocates.
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