By Ryan C. Wood
Yeah, I know you were not served with the lawsuit. That does not mean a judgment, that is, a default judgment, was not entered against you accruing judgment interest at 10% (California Law). You were sued and the process service company committed a fraud and filed a proof of service under penalty of perjury saying you were somehow personally served with the summons and complaint. You are now finding out about the lawsuit because your employer received a wage garnishment notice or your bank account was levied on. I know this is the first you are hearing of this lawsuit. The lawsuit was probably filed over five years ago and has now grown to a substantial amount of money given the 10% judgment interest and addition of attorneys’ fees and expenses. Bankruptcy lawyers hear about this over and over again unfortunately. So what happened?
Service of a Lawsuit
When a lawsuit is filed against you the summons and complaint with other documents are supposed to be personally served on you. That means the summons and complaint were handed to you, thus personal service. If the summons and complaint cannot be handed to you for whatever reason there is also personal service by substitute service. Generally a competent member of your household, someone that lives with you, your domicile, someone 18 years of age or older can be served personally instead of you with the summons and complaint. Then the summons and complaint has to be mailed to you at that address. You can be served at your place of employment if the summons and complaint are left with your boss or someone in charge. There are issues with personal service by substitute service at your place of employment though given the nature of it and is less common than substitute service where you live. You can even be served personally by publication believe it or not.
How Come I Never Knew About This Lawsuit
You will need to obtain the proof of service of the summons and complaint filed in the case to know how the summons and complaint were allegedly served on you and when. I am talking about primarily collection lawsuits for various debts such as credit cards. It is not possible to hide a lawsuit between neighbors for building a fence on the wrong property and a lawsuit is filed to have the fence removed. It is very easy to hide a lawsuit for unpaid bills and have the lawsuit move forward without your knowledge. The goal is to obtain a default judgment and then enforce it at some point in the future. Not move a fence, an unpaid wage claim or personal injury claim. The reason you did not pay the debt in full or stopped making payments does not matter. The account may have gone to a collection agency too and that is the entity suing. The summons and complaint were filed with the court then sent to a process service company to personal serve you. The lawsuit filer does have information about you that may or may not still be accurate. You filled out an application for the credit card or some other type of credit account. You may or may not still live there. If you still live at the same address as in the application and the process service company alleges they personally served you there or served a competent member of your household at that location by substitute service it is difficult to prove whether they actually did or not. If you lived at a different address then what is listed in the proof of service at that time there is hope. If there is other inaccurate or impossible information like the address where you were allegedly served does not actually exist on Earth there is hope. Yes, I have in fact dealt with a proof of service of a summons and complaint allegedly served at an address that does not exist on planet Earth and a default judgment was entered against the defendant in that case. Not good. The point is the proof of service will have some sort of discrepancy you know is not accurate or true. Proving that the method of service never happened is another story and is not free. So you never were served with the summons and complaint and now the plaintiff requested and received a default judgment against you that is enforceable. Your bank accounts can be levied on. Your wages can be garnished. A judgment lien can be recorded against your home or other real property if you own any. Not good.
The Plaintiff or Their Attorneys Will Wait Four Years or More to Enforce the Judgment
This is part of the game plan for the fraudulent service of lawsuits on defendants. It has been going on for years and years. Why do they wait to enforce the default judgment? One reason is the fraudulently obtained default judgment accrues interest at 10% per annum here in California. So a $7,000 judgment that was not worth spending too much time trying to collect on becomes $12,000 or more and becomes much more worth spending time and money to enforce. Second it becomes more and more difficult to prove the service of the summons and complaint is fraudulent as time passes. Records are lost and memories fade.
How to Make it All Go Away
Well, unfortunately filing for bankruptcy if eligible is the fastest and cheapest way to make the default judgment go away forever. This is a broad generalization and depending upon your individual circumstances not possible. As a bankruptcy attorney I have discussed the service of a summons and complaint over and over again with potential clients. If you have other debts that are a problem as well again bankruptcy will tie that all up into a nice neat bow. To fight in state court and have the default vacated attorneys’ fees and expenses can exceed $3,000 or more.