Did it truly happen if a process server delivered documents in the woods and no one heard it? Not absent a legally binding Affidavit of Service.
All service of the process includes an affidavit of service, usually referred to as a statement or proof of service. The measures that the process server followed to track down the defendant must be documented. Courts require it as proof of valid service.
When done correctly, it neatly concludes the legal process. If something goes wrong, you could face dismissed cases or perhaps legal action for falsified affidavits, which would put you back where you started.
WHAT IS AN AFFIDAVIT OF SERVICE?
Once the defendant has been served with your legal papers, an affidavit of service is produced. It will normally include the following details:
- Case identification number and name.
- A rundown of the papers that were delivered.
- Anything from the service that is pertinent.
- Name, contact details, and signature of the server.
- The person served.
- The day, hour, and place of the service.
- A declaration that the process server is older than 18 and not involved in the dispute.
If a process server is unable to complete service, affidavits of service are indeed necessary. In some circumstances, they’ll provide a signed statement stating that they’ve made good faith efforts at personal service with an Affidavit of Service. This proves that the papers were delivered in good faith in the event that there is a later legal dispute. Additionally, it is what persuades a judge to grant a request for alternative service.
How to Prepare a Proof of service?
While those bullet items might seem like a straightforward checklist to complete, it’s not quite that easy. Gathering ALL the data from the service is necessary to create a strong affidavit of service. It’s crucial to confirm that the process server you’re utilizing is maintaining correct and complete information. That contains:
- preserving all information.
- keeping thorough records.
- keeping call notes, emails, and text messages.
- preserving records of first contact and recording all contacts made.
- ensuring to record phone calls and other activities in order to show thoroughness
- Additional proof of attempted service, such as a validated parking ticket.
Together, they demonstrate that your server is verifying a proof of service based on accurate information rather than simply personal knowledge.
Knowing the state regulations governing the Affidavits of Service is another need for thoroughness. An registered process server will be knowledgeable about national regulations and how they affect the serving of process and the Affidavit of Service. Here is a step by step guide for your process servings.
Getting the Legal Documents
You can easily obtain forms if you have quick access to the internet. This contains a state-specific Affidavit of Service.
Process Server Fees for Delivering Documents
Depending on what state you live in, the fee for service of process might be anywhere from $35 and $100. Additionally, you need to account for locally based costs. Gas mileage and unsuccessful contact efforts are factors. Expect to spend more if you need them delivered fast, on a holiday, or on the weekend.
Alternatives if the Person of Interest Is Not Reachable
Courts may permit publishing in a newspaper if the third person mentioned in the affidavits is avoiding service or cannot be found. Finding the best way of performing lawful service of process in your jurisdiction is in your best interest because proof of efforts would be needed.
The third party could be served anyplace, at any time, whether you employ a local resource or a hired independent process server. Affidavits and proofs of service may occasionally be certified via mail or fax. Your process server may also be able to submit your documents to the court system in some states.
The first step is to look up the legislation of your state. It is crucial to conduct research and identify the legal, effective method of serving and filing them.
Kinds of Process Service
Personal service requires that the court papers be delivered to the opposing party personally by someone who is NOT a participant to the action.
Providing “personal service”:
- The person being served receives the documents from the server. It may take place at the party’s residence, place of employment, or any other location on the street.
- The person being served must be identified, and the legal documents must be personally delivered to that person while being made clear that these are court documents.
- The documents can be placed on the floor in front of the person being served if they don’t wish to take them. Service is still regarded as having been performed if the person removes the documents and throws them away or tears them up. The recipient of the service is not required to sign anything.
- The server then completes a proof of service, indicating how (in person) and when the papers were delivered, including a detailed physical description. The evidence of service is signed by the server and sent back to you for court filing.
- The date that the documents are served is considered the day of personal service.
The most trustworthy method of service is “personal service,” as the court is certain that the recipient of the documents actually received them and is able to interrogate the process server about the “service” if required.
The term “personal service” is acceptable in all circumstances because it is the most dependable. It is typically necessary when delivering the opening documents (the plea or complaints) in a lawsuit since it is so trustworthy.
A person who IS NOT a participant to the lawsuit must ship the papers to the opposing party in order to carry out “service by mail.” Before using this technique to serve your papers, ensure that service by mail is permitted.
In the case of “service by mail,” the server sends the documents to the recipient. The documents can be addressed to the home or postal address of the party getting served if that party is a person. If it is a company, the documents must be addressed to the owner(s) at the corporate headquarters. The documents should be sent to the company’s agent for service if it has one.
The server then completes a Proof of Service, noting who received the documents, what address they were sent to, when, how (via first-class mail), and also where they originated. The evidence of service is signed by the server and sent back to you for court filing.
Five days after the documents are mailed, the service via mail is finished.
The court cannot be certain that the documentation was received, making mail service simple but not very dependable.
After many efforts to directly serve the documents have been unsuccessful, substituted service is resorted.
For a substituted service:
The server makes several attempts (often three or more) to physically serve the other party with the documents but is unsuccessful in doing so because they are not home. The server must make an effort to reach the other person on several days of the week and at various hours of the day when they are most likely to be at home.
In the event that the server is unsuccessful in serving the intended recipient each time, the last option is to leave the documents with a resident of the other party’s home who is at least 18 years old. The papers can be placed with someone at the office who looks to be in control and is at least 18 years old if the server is attempting to serve the documents at the other party’s place of employment.
The server is required to inform the recipient of the papers that they are official documents on behalf of the other party. The person who serves the documents must also record the name as well as address of the recipient. A thorough physical description must be recorded by the server if the client refuses to provide a name.
A duplicate of the papers must then be mailed to the opposing party at the location where they were placed, according to the server.
The server must then:
- Compose a “Declaration of Due Diligence,” a document for the court that describes each attempt the server made to personally serve the documents. It should contain the dates, timings, and circumstances surrounding the visit (for instance, “No one opened the door” or “Party not in the office his or her address”). This paper must be signed by the server under pain of perjury. Although a form is not available, the server may utilize a Declaration (Form MC-030PDF file type icon). The self-help center for your court could have a regional form to assist you with this stage as well.
- Describe the manner, location, and date of service on a Proof of Service. The server must ensure that he or she writes down the name of the person they left the documents with. The Declaration of Due Diligence and the signed Proof of Service are returned to you by the server for filing in court.
Ten days after the papers are mailed, substituted service is complete.
What is the Next Step?
The Affidavit of Service might have to be notarized prior to getting presented to the courts. (Depending on your country’s laws.)
Check everything twice before you’re ready to submit your affidavit to the court. The punishment for making a false or inaccurate affidavit is perjury, albeit your process server shall make the final determination on its veracity. If you discover a mistake, don’t risk taking legal action; it’s preferable to start over.
Process servers must take care to do their tasks in a systematic and recorded way. They must be aware of the variations in what is legal in each state. There are many decisions to be made. That is why working with a reliable legal process service company would be the best decision.
D&R Legal Process Service LLC
Process serving may be challenging, time-consuming, and costly if you attempt to do it alone. So that you can concentrate on enjoying your life, let us manage all the inconveniences with the delivery of your legal documents.
The complexities of service of process and evidence of services are no longer a concern for you. The inconveniences involved with filing and delivering your documentation are handled by our full-service process serving solution.
We at D&R Legal are concerned about our customers. We want to be more than simply your process servers; we also want to be your representative in court. It doesn’t matter if it’s easy or difficult when you work with us since you’ll always have a trusted partner who will keep on top of everything for you.
Call us at 1-510-797-9996 to learn how we can help your case.