Steve Harms

Monday, April 1, 2013

Service of Summons and Complaint to collect money

A collection law suit (or any suit for that matter) is started by filing a Complaint, which lets the debtor (defendant) know--in a matter of numbered paragraphs--what you are suing for.  That is, it explains the contract or account, and then the balance currently owed plus any interest/costs. 

The suit also includes a cover sheet referred to as a Summons, which is form language required by the court explaining to the debtor the case number, how many days to answer the suit, the fact that this is a suit, and some other details.

BOTH the Summons and the Complaint must be served on the debtor/defendant, within the time allowed before it expires (the Summons may have the expiration date right on it).

If the defendant is an individual, as opposed to a business, personal service is required.  This generally means the debtor (at least in Michigan, and the practice does vary a bit from state to state, country to country) is handed the document.  However, in Michigan at least, this does not require a physical touching of the Summons and Complaint.  It does require three things:  Inform the debtor of the action; offer them to the debtor; and leave them in the debtor's physical control.

So, what does the process server do if the debtor takes off running into his house and slams the door (happens often, or some variation of this)?  Well, the process server shouts that he is delivering a suit, he offers to hand the papers (remember...BOTH the Summons and the Complaint) to the debtor, then he leaves them right outside the door, or in the door handle,  if the debtor refuses to open the door he just ran into.  That is sufficient.  In one case, the papers made it half way into the door as it was being slammed shut, the debtor grabbed them out of the door and threw them back at the process server.  Still good service according to the Michigan Court of Appeals.  Barclay v Crown Building is one good example.

Michigan also allows service on an individual by certified mail if the delivery is restricted to a specifically identified person, and if that person signs for it and the receipt is produced.

There are also a number of ways to obtain substituted service, but that requires a petition or motion be filed with the court, and court permission to so serve the papers...effective if direct service just isn't going to happen.  Frequently the plaintiff who started the suit will also petition the court for an extended Summons if the process server runs out of time, usually requiring an affidavit from the process server and other address verification such as a postal trace from the Post Office.

What may seem easy, sometimes isn't.  Completing good service of a law suit is a prime example of that!

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