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Process serving and a web of lies
Dr. Frenchenstein
Registered User regular
Registered User regular
so as many of you know, i am embroiled in a court battle that would make Sam Waterston shit a chicken.... or you know, laugh at my plight.
the guy was allegedly served incorrectly by my lawyer's process server. i had long since fired that lawyer when the dispute was filed. So now i'm back to square 1, more or less, on the collections. I know where his business is located, so i could potentially get a process server on my own, and file to get the post judgement proceedings started up again. However, i'm kind of convinced he is lying about the proper service from before (he said they got his brother, not him, and had no idea about the post judgement stuff), and might do it again if i send one after him again. does anyone know if there is a way to prevent that? i was planning on telling the process server what happened the first time at least. I assume it's his word against the defendant's if it's disputed, and the server has a lot more to lose than the defendant?
TL;DR I'm trying to serve a scumbag defendant, how can i prevent him from being legally served, and then saying they served the wrong person, and me wasting money?
the guy was allegedly served incorrectly by my lawyer's process server. i had long since fired that lawyer when the dispute was filed. So now i'm back to square 1, more or less, on the collections. I know where his business is located, so i could potentially get a process server on my own, and file to get the post judgement proceedings started up again. However, i'm kind of convinced he is lying about the proper service from before (he said they got his brother, not him, and had no idea about the post judgement stuff), and might do it again if i send one after him again. does anyone know if there is a way to prevent that? i was planning on telling the process server what happened the first time at least. I assume it's his word against the defendant's if it's disputed, and the server has a lot more to lose than the defendant?
TL;DR I'm trying to serve a scumbag defendant, how can i prevent him from being legally served, and then saying they served the wrong person, and me wasting money?
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Then you've got an officer's testimony. You win.
After so many serving attempts, I think the court can go "you don't even have to be served anymore, you're deliberately trying to avoid this." and fuck him. You should probably talk to your lawyer about this though, I may or may not be correct. And having cops serve court papers varies by jurisdiction (it's legal here anyways, you have to pay a fee though).
The name / information of that process server should be on the bill that your (fired) attorney sent you that month, so you can reach out to them and get verification that they served your dude. They should be able to provide a proof of service affidavit which makes a pretty uphill battle for anyone claiming they weren't properly served. The onus will then be on them to prove they were never served, and it'll likely become a he said / she said deal. Which likely isn't going to look favorable to the scumbag you had served compared to the sworn affidavit of a process server.
Even if it's your (fired) attorney's firm had him served, you should still be entitled to any records they may have pertaining to your case and there is an obligation to keep records for some pretty lengthy amount of time, so they should be able to provide a copy of that proof of service affidavit as well. You may have to pay some kind of a copying / paperwork fee to the fired attorney, but that should be about it.
Having gone through a (much less) protracted legal battle the past year and a half, I feel a small amount of your pain and hope you get this shithead for everything he's worth and your costs. Good luck!
EDIT - Oh yeah, process servers are also bonded in many places. So if they fucked up and got your case overturned because they didn't serve something properly, you might be able to go after their bond.
Having everything that you've been through I would give the Sheriff a call in his area and see if you could set up a time to have a voice call with him and explain what has been going on and the trouble you've had to pin this guy down and if they could serve him with the paperwork. While it isn't exactly a common thing chances are with all the shit you've dealt with they might be willing to swing by and ID him and serve him.
Around here it runs around $50 if you want the Sheriff to serve papers, however it isn't a massive manhunt if they can't find the guy. What they will do is just keep an eye out if anyone spots him and then slap him with the papers, but if he has any friends the department or is super slippery he might dodge them for quite some time before he is served.
yeah when i said the lawyer's process server, i meant the one he hired. i should just get my entire file from the old lawyer.
Yes, you absolutely should. That's work you paid for, and you're entitled to have all of it. They may charge you a filing / copying fee, but it's probably worth it to have the work you paid $TEXAS for already, and it may save your new attorney some time / extra costs to avoid repeating things that are already done.
IANAL, but if you can find an affidavit from the original server, I would be careful trying to serve them again or at least consult with a lawyer first and making sure it's absolutely necessary. With that affidavit, the onus is on the person served to prove they weren't served - not on you to have them served again. The affidavit, by a sworn / bound process server, is basically them stating under penalty of perjury that they did serve the person they claim to.
If they didn't do so and the service is overturned in court, you can go after that process server's bond. Since your previous attorney had it done, I would say it's likely that they were a legitimate bonded server, not just some random jackass.
I'd be concerned that serving them again, if it's not necessary is not only a cost you don't want to pay, but also is potentially seen as your acknowledgement that they weren't served properly in the first place. It can put the entire process back a ways, and result in more delays and problems.