Monday, July 15, 2013

Substituted Service as alternative to personal service of process


If service of process in the regular manner, i.e. in person by a process server or peace officer, is unsuccessful, the debt collection attorney may file a motion with the judge requesting that a different method of service be authorized by court order.

ALTERNATIVES TO SERVICE OF DEFENDANT PERSONALLY BY A CIVIL PROCESS SERVER OR A PEACH OFFICER 

Texas Rule of Civil Procedure 106 authorizes a court to order a substitute method of service. When citation is executed by an alternative method as authorized by Rule 106, proof of service must be made in the manner ordered by the court." Tex. R. Civ. P. 107.


Methods of Service of Lawsuits in Texas (rules)
Generally, to support a default judgment, service of process must be performed in strict compliance with appropriate statutory provisions. Such compliance is particularly important when substituted service under Texas Rule of Civil Procedure 106 is involved. When a trial court judge orders substituted service under rule 106 on the motion of the plaintiff who was unsuccessful in serving the defendant in the ordinary manner, the only authority for the substituted service is the order itself. It follows that the requirements set forth in the order must be slavishly followed to assure validity of service.

Orders for alternative service of citation often specify two methods of service, both of which must be complied with. Some judges issue orders for two alternative methods (either one or the other must be used), but additionally require that copies also be sent to the defendant at the same address by regular mail and by certified mail.

Typically, orders for substituted service require delivery to a person over the age of 18 if encountered at the address or by affixing the suit papers to the door or gate if one is present AND mailing of copy of the petition and citation by certified and by ordinary first-class mail. But not all such orders are alike. Nor will court necessarily grant a motion for alternative service, which must be accompanied by an affidavit stating what service attempts were undertaken and how they were unsuccessful. The facts recited may or not be found satisfactory by a particular court.

Order granting substituted service (partial snip) 
Assuming the court grants the motion for alternative method(s) of service, any deviation from the trial court's order authorizing substituted service provides a basis for a reversal of the default judgment on appeal based on defective service. Such an appeal is viable even if the defendant was aware of the lawsuit.

Typically, defendants in debt collection suits will have heard from the attorney handling the case prior to the filing of the lawsuit, and will be aware of what is coming. Some plaintiffs’ attorneys even mail “courtesy” copies to the defendant, advising them that the lawsuit has been filed, accompanied with a disclaimer to the effect that the copy that is being mailed directly to the defendant is not a substitute for formal service.

WHAT IF THE DEFENDANT KNEW OF THE LAWSUIT? 

Courts have held that a default judgment is improper against a defendant who has not been served in strict compliance with the law, even if he has actual knowledge of the lawsuit.
Appeals from default judgments are different. In a direct attack on a default judgment, there are no presumptions in favor of a valid issuance, service, and return of the citation. That said, the return of service is considered prima facie evidence of the facts asserted therein (even if they turn out to be false). The recitations in the return of service carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party. The weight given to the return is no less when the recitations impeach the judgment than when they support it. If error is not apparent on the face of the record, an appeal may not be a viable remedy. Additionally, appeals are only available within a certain time frames.

BILL OF REVIEW PROCEEDING AS AN ALTERNATIVE TO APPEALING A DEFAULT JUDGMENT

In a case in which an appeal is not a viable option to challenge a default judgment, a defendant may want to consider filing a bill of review in the trial court. This will allow for the presentation of evidence outside the record of the case that ended in a default judgment that would support a reopening of that case. A bill of review differs from an appeal of a default judgment in numerous respects, and has a number of specific requirements. If successful, it will reopen the case, rather than setting aside the default judgment and ending the case for good. Although a bill of review relates to a previous lawsuit in the same court, it resembles an original lawsuit and it is likely to be docketed under a new cause number.

SAMPLE DOCUMENTS / ORDERS PERTAINING TO SUBSTITUTE SERVICE 

Service did not comply with order: Default Judgment Denied 






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