Contested Service

Serving process acts as a key step in our justice system, by officially notifying the party to be served of a legal action against them or in which they are required to respond. Service of process gives the court jurisdiction over the party served. Unfortunately, there will be situations where the party served seeks to attack the validity of your service, because it can help them short-circuit our legal system and avoid the requirements of the papers served. The result of a successful challenge to your service could be the loss of the case and serious financial implications for your Client, and damage to your reputation and future workload. In this article, we discuss contested service.

What is a Contested Service?

Contested service happens when the person who received service attempts to say they were not served properly, based on your state rules. Or they may deny they were served at all! Examples of challenges to service are when the party:

• Says they did not live at the address at the time of service.
• Claims that the service was made on a person who was not a co-resident.
• States they were never served.
• Claims you didn’t have the appropriate time between service attempts.

How is Service Contested?

If a party chooses to challenge the service, they will file a Motion to Quash (MTQ) with the court that issued the papers you served. The MTQ asks the court to rule your service was improper and therefore void. The attorney that filed the original papers will receive the MTQ and will contact you in order to clarify the circumstances regarding the service.

Why is Service Contested?

The stakes can be very high in legal battles and invalidating service of process is a way to defend a case on procedure rather than the merits of the case. If an MTQ is upheld, and your service is ruled improper and voided, the court's personal jurisdiction is called into question, making a judgment or case against the improperly served party subject to review. If a case is still in progress, it could possibly be dismissed. If a judgment has already been reached, that judgment could be vacated.

• In situations where a case is dismissed or where financial judgements are vacated, the results can be very costly, especially if owed or accrued interest is involved.
• In worst case scenarios, because there is no statute of limitations on when a service may be challenged, the challenge may be made years after the service occurred and a judgment was entered against a defendant. If the case is now dismissed and there was a statute of limitations, it may be that the case cannot be refiled. 

How to Defend your Service?

When a MTQ is filed, the Judge will typically set a traverse hearing, which is a special hearing to determine if the respondent or defendant was served personally or otherwise in accordance with the law. You may be required to provide additional information by affidavit or appear in person. You will want to prepare for the hearing and do your homework, by:

• Reviewing the MTQ to understand why the service is being contested.
• Reviewing your Affidavit of Service and confirming the facts stated are correct and there are no typos or basic errors.
• Reviewing your field sheet or service notes to refresh your memory on the service.
• Answering questions your Client may have regarding the service.

Do not wait until the last minute to prepare. Find all relevant documents and notes you have about the service and study them thoroughly. Be sure you have the facts clear in your mind and will be able to talk confidently about the service to the best of your memory. Gather a packet of service information to provide to your Client and bring with you the day of the hearing, including:

• Your field notes
• A copy of your return or affidavit
• Proof of GPS tagged attempts or photographs, if you have them
• Your state log records, if your state requires them (e.g. New York)
• Any documented processes and examples of other affidavits filed on that case or similar type actions that illustrate you have a standard process that you always follow - more on that later!

On the day of the traverse hearing, the Judge will hear both sides of the argument concerning the MTQ and render a decision. You may be called on to testify regarding your service and may be asked questions about your background, how long you have been serving, and questions regarding the service in question. It is important for you to:

• Arrive early to court, especially if you are nervous. Give yourself time to find the correct room in the court and acclimate to the environment.
• Conduct yourself professionally. You are representing not only your own work efforts, but that of the company you served for (if not your own), and your Client. Dress in business attire to convey you are a professional and that you take your job and this MTQ seriously. Speak thoughtfully and courteously in response to all questions.
• Speak only to the facts of the service when questioned. Remember you are the disinterested third party, so you should not voice your personal opinions of the case or the party you served. You have no interest in the outcome of the case other than to clearly confirm that you completed your service in accordance with applicable State rules and statutes.
• If you have a serving routine you follow on every server (highlighly recommended!), share this with the court. This lends credibility to your testimony (e.g. "On every serve, I always identify myself, I confirm that the person I am serving lives at the address, and I confirm the person I am speaking with is either the person I am serving or a co-resident that is able to be served. I advise them of the documents and any required court date or response time as I serve them). You may even have handy your written procedures and examples of other affidavits that you have executed, in case the Judge might be interested in these items as you discuss your routine.

Be sure to charge your Client for your entire time attending the hearing, not just the time you spend testifying. In many cases, you may be waiting hours at the hearing, listening to other challenges, before you are called to testify. That time waiting is just as valuable to you as the time testifying, because you will not be able to be out working on other assignments.

What to Do If Your Service is Quashed?

If your service is upheld – congratulations! Keep track of all upheld services to use as marketing statistics. However, if your service is quashed (voided) then:

• Make sure you understand exactly why the service was voided. If the error was in how you served the papers, correct your processes to avoid this issue in the future.
• Confirm with your Client if the process may be re-served and if they want you to re-serve. If the error was in how you served the papers, perform the re-serve with no additional charges.
• If the error was in how you served the papers, strongly consider not billing the Client for the time you spent at the hearing.

In the worst-case scenario, the judgment may be vacated, and the case dismissed. In this situation, you might be at risk of being sued for damages. This is why you should always carry a good errors & omissions insurance policy.

How to Minimize Your Risk of a Quashed Service?

As they say “the best defense is a good offense.” In your case, besides serving strictly by the rules and statutes of your state, your offense should include , good record keeping, good organization, and documented standard processes that you follow.

• Keep accurate records regarding your attempts and final service or non-service. See our article on Good Record Keeping for specific tips on this. Remember there is no statute of limitations as to when a challenge to service can be made, so ensure you maintain a backup of your records. Utilizing a process serving software program, such as Process Server’s Toolbox (PST) enables you to quickly access your records no matter when a question is raised regarding a service.
• Be organized on the road, ensuring you are prepared for each service and handle your serves in a consistent manner. See our article on How to Stay Organized on the Road.
• Document the processes you use as a business and specifically for serving papers. Identify your standard procedures for every serve – what you say, how you mark the papers, if you take photos, how you record location information, and guidelines on detailed comments for each attempt. Then be sure to execute these standard practices. Consistent practices will ensure you don’t forget something during a serve and will show a pattern of professionalism that will weigh in your favor for any MTQ.

In Summary

While you may serve process for many years without any disputes, it’s not a case of if but of when you will need to defend a service that is being contested, so be prepared. Ensure you serve according to the rules regarding service in your state. Keep accurate records in case you are called to testify regarding your service. Document any unusual events regarding the service, in your original affidavit, not after a challenge is filed. Conduct yourself calmly and professionally and state the facts regarding the service when questioned.