Service with a Smirk
Once upon a time, I lived in a Minnesota state forest, my home base from where I traveled extensively. I had started a couple of minor businesses, but when I began working overseas, I needed to divest. An acquaintance asked to buy one. We wrote out an agreement in which she would take over the shop, the company bank account, the assets, and pay me over time. I flew out for a nine month stint in Europe.
Cell phones were a couple of years from reaching the mass market, limiting continent-to-continent communications. When I finally returned, I found the shop’s doors padlocked and empty of contents. The bank account was empty; no payments had been made to me.
Worst of all. I found a multi-thousand lien on my house. What the hell?
I pieced together the events, discovering in my absence I’d been scammed. The acquaintance who ‘bought’ the business had no intention of becoming an entrepreneur. As soon as Northwest’s wheels left the ground, she liquidated the assets, and, in an excess of brutal dishonesty, she sued, claiming she wasn’t a proprietor but an employee and I’d failed to pay her wages. With me out of the picture, she could fabricate a narrative without anyone to dispute it. After a default judgment, she placed a lien on my house in the woods while court gears slowly ground. Fortunately, I disrupted her scheme by returning sooner than expected.
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| Typical Process Server |
Proof of service receipts from the court were revealing. The server claimed the residence was occupied, but no one answered the door. As evidence, he said a television was on, and he found newspapers at my door and letters addressed to me in my mailbox. Wood smoke, he said, rose from the chimney..
Whoa. Let’s take this step by step.
I had no ordinary street address, no television, and no mailbox. Instead, I kept a postal box closer to Minneapolis, unrelated to the township of my physical forest address. I subscribed to no newspaper. The house was heated not by wood, but by a propane tank the size of a Volkswagen.
Not one scintilla of evidence matched my residence. Clearly the server had not visited my house. Did our little scammer mislead him or did the server flat out lie?
My attorney was pessimistic. Even if we could prove malservice and I was blindsided, the court was loath to reopen a closed case. However, with my presence and willingness to pursue the case, the judge reluctantly allowed me to deport $10k into a bank escrow account, until the parties were ready to proceed. Funny thing, with me back on the scene and highly motivated, the other party seemed oddly unenthusiastic about pursuing the suit. It languished for a lengthy period until the bank released the funds back to me.
I got my money back and one painful lesson. But let’s review.
The plaintiff knew I was out of the country, knew I was unavailable to defend a suit. Whether or not that party misled the process server, the court-approved server did not do his job, that of locating the correct house and determining the whereabouts of the respondent.
We need a word for faking and falsifying serving of documents as required by courts and government bureaus. ‘Disservice’ is out and ‘misservice’ doesn’t quite cover malfeasance. Maybe malservice™? (I might as well invent the word,) During the Great Depression when thousands of North Americans lost their homes, the term ‘sewer service’ surfaced. Process servers might dump hundreds of summons in a ditch whilst claiming they’d hand delivered them.
Service Done Right
Previously in SleuthSayers, I mentioned coming up against a scamming, scheming disbarred lawyer, ‘Dr Bob Black’. He made the mistake of conning a New York City homicide detective. The detective hired an attorney, hired me, and hired a process server. His was not an ordinary server, but one noted for dedication and persistence. When a defendant seemed litigation proof and especially service proof, this was the guy the pros called. No case was too small, no task too mundane, no case too difficult.
Dr Black bragged he was lawsuit immune and judgment proof. All of his assets were stashed overseas. Everything else was in his wife’s name and he maintained no assets in the US. Nevertheless, our detective pursued justice whilst our server pursued the slippery, slimy, slithery Dr. Black.
Black proved elusive. Our process man turned from server to dedicated observer. At a tactical distance from Black’s house, he camped in his car and jotted notes about the days and times of lawn service, mail pickups and drop-offs, trash pickup, and food deliveries.
One of Black’s peculiarities was to schedule appointments to the minute, say, 9:44am or maybe 14:23 in the afternoon. Black claimed he specified these odd times because he was so tightly booked. I viewed it as a conceit, but it also served a purpose: If his afternoon doorbell rang and it wasn’t exactly 2:23, he wouldn’t open the door.
Not to be outwitted, our server took to the trees… literally. He climbed a magnolia off the corner of Black’s McMansion where he could oversee the entryway without being seen. By then he roughly knew delivery routines and he waited. Right on cue, a dry cleaning truck arrived. As Black stepped outside, our man slid down the tree and dashed. Before Black knew what was happening, the server was on the conman, gleefully shouting those infamous words, “You… have… been… served!”
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| Genial Landlord Lawyer |
Misuse of Pronouns
And so the hurricane season of 2004 came to pass, four monster windstorms, one attack after another, that tore apart Florida. Dockets became jammed with customers suing with evictions, with foreclosures, with insurance companies reluctant to pay. Independent lawyers picked up several dozen cases at a time in mass rubberstamp hearings where people lost their homes in less than ninety seconds.
In that mess, an HOA (homeowners association) targeted me. I wasn’t aware of the suit until it was over. My first question asked how I was served. Sure enough, the signature form, called ‘return of service’, referenced a residence, which was then a vacant hurricane damaged house. The notes read to the effect, “Respondent acknowledged she was Leigh Lundin. Server confirmed identity but she declined to leave her signature.”
Wait. What?
The HOA lawyer claimed it was a simple mistake, typos that gender swapped ‘he’ into ‘she’ and ‘his’ into ‘her’ and in the press of so many suits, errors were understandable. In court, I complained and the HOA attorney repeated his assertions. The harried judge snapped at me. “Well, you’re here now.” Damn. I was hoping to see a slap down and I got it… me.
Summons Summary
Courts and clerks opine that misservice and particularly malservice almost never happens, but I would like to see studies to determine actually numbers. The reluctance of one court to reopen a case and the dismissive nature of another is discouraging, a signal that defendants can be overlooked– deliberately.
I have sought remedies in court, mostly small claims. In support of independent workers, I’ve preferred private process servers, you know, like Kinsey Malone. In a case where I sued a large corporation (and won), I paid a county sheriff’s office to do the deed on the theory a uniformed deputy marching through a Tallahassee glass tower might meet less resistance.
In one infamous case of malservice, a judge set aside a $7.7 million judgment. One of my favorite internet lawyers, Steve Lehto, discusses cases in Texas and Michigan. He drew attention to a stinging NBC exposé.
If false service happened to me in court cases at least twice and more than once by Code Enforcement, how common is the practice? Probably not common at all, but when it happens, it happens big– one man ditching hundreds of service documents in Maryland, thousands of documents dumped by a New York law firm. Such cases rarely make the news, but become known throughout the profession and legal circles.
This happened to me. What can I do?
First, don’t panic. Consider consulting an attorney, even in small claims court. Judges should take misservice seriously.
Obtain the receipt of service and look for errors. In my cases, errors were obvious. Being out of the country makes it difficult to receive service. Getting gender wrong is a major problem. Check dates and times. I’ve never had to argue this, but a habit of signing upon acceptance might lend credence to a false service argument.
Following are resources you might find helpful. If you’ve been misserved, good luck.
- The Process Server Institute documents cases:
- https://psinstitute.com/whatisaproperproofofservice/
- https://psinstitute.com/criminal-liability-for-preparing-false-proofs-of-service/
- LegalClarity.org discusses the issue, offering professional advice for sticky situations.
- https://legalclarity.org/what-to-do-if-a-process-server-lied-on-an-affidavit-of-service/
- https://legalclarity.org/what-happens-if-you-cant-serve-someone-court-papers/
- LegalServeUSA offers consumer oriented advice.
See you soon.
