Judgments have serious consequences. In Maryland they last for 12 years, and are renewable. With a judgment, a creditor can garnish your wages, freeze your bank accounts, get a lien over your home or even seize your car. Sometimes people are surprised to find that there is a judgment against them. So, what can you do?
Did You Know About The Case?
If you’ve just found out about a judgment – for example by searching yourself on Maryland Judiciary Case Search, or when you got a notice of garnishment from your bank or employer – the first question to ask yourself is “did I know about this case?” In order to get a judgment against you, the Plaintiff had to file a lawsuit. The Plaintiff had to serve that lawsuit on you. A judgment will not be entered unless someone sworn under oath that you were given a copy of the complaint, called “service.” So, before you go any further, make sure that you know whether or not you were served
What is Service?
Service is a legal term. In Maryland a person must be personally served a copy of a lawsuit against them. Personal Service means any one of these:
- You were handed a copy of the document served, by a process server or sheriff.
- A copy of the document served was handed to a competent person who lived with you.
- A copy of the document served was mailed to you, return reciept requested, and you personally signed for it.
Personal service in collection cases is almost always achieved through 1. or 2. If neither of those things happened, you probably were not served.
I Wasn’t Served, What Do I Do Now?
Service is very important. Service is what gives the court personal jurisdiction or the right to order a particular person to do something. A court without personal jurisdiction over you can’t enter a judgment against you or order your wages to be garnished.
However, simply saying that you were not served is not enough. If the court entered a judgment against you, someone told the court you were served by filing an “affidavit of service”. That person will usually be a private process server. That affidavit of service is presumed to be true. That means that if you simply tell the court that you were not served, without any additional evidence, the court will be believe the affidavit of service, not you. You have to offer more evidence.
How Can I Prove I Wasn’t Served?
First, you need to know more about the affidavit of service. You need to get a copy of it, which you can do by going to the courthouse and asking to see the file (or, if you live in a county where MDEC is active, by going to any courthouse and looking up the case on the courthouse terminals).
Look at the affidavit of service and see what it says. There are two basic ways the affidavit can be wrong:
- I might say you were served, when you weren’t.
- I might say someone living with you was served (but they didn’t live with you)
1. The Affidavit Says I was Served, but I wasn’t
The affidavit of service says that the process server handed you a copy of the complaint, you know that didn’t happen, but how can you prove it? First, understand why the affidavit might be wrong:
- The process server was lazy: the process server simply handed the complaint to whoever opened the door and assumed it was you.
- The process server is lying: the process server simply left the complaint on the doorstep (or never delivered it at all) and is lying in the affidavit.
In either case, the process server did not see you. As a result, there may be other mistakes on the face of the affidavit, such as:
- You didn’t live at the address listed on the date of service
- The physical description of you is wildly different from your actual appearance at the time
- Service was at a time or on a date when you would not have been at home.
Now think about what evidence might exist that proves you are right about these mistakes. If the address is not yours, how can you prove where you lived at the time? If you owned a house, look at Maryland’s Land Records. If you were renting, find or request a copy of your lease or bills you received at the correct address. If the physical description does not match yours, check the description on your driver’s license. If there were special circumstances – perhaps you were on holiday, on business in another state, or at work, when you were allegedly served, try to find documents that prove that.
2. The Affidavit Says Someone Else Was Served, But They Didn’t Live With Me
The affidavit says that someone living with you was served in your place (called sub service). Perhaps the person is someone you’ve never heard of (a non-existent wife or husband, perhaps). Alternatively, the person may be someone who did not live with you – for example, your parents if you no longer live at their address. Finally, the person served will sometimes be unfit to accept service. Maryland sets no minimum age for accepting service. It only requires that the person served be of “reasonable age and discretion”.
Proving these facts should be easier. If the process server claims to have sub-served your non-existent spouse, it should be easy to prove that you are not married, or that you are married to someone else. If the process server claims to have served someone you know, but who does not live with you, that person can help you prove that you were not properly served.
I Wasn’t Properly Served, And I Have Some Evidence, What Now?
The remedy for improper service is to have the judgment against you vacated. This requires you, or your attorney to file a motion in the court that entered the judgment against you. This motion will be your only chance to get the judgment vacated on these grounds, so it is important that you get this right. You should therefore at least consult an attorney, or several attorneys, and try to get an attorney to represent you before you file a motion on your own.
What Happens After The Judgment is Vacated?
If you succeed in having the judgment vacated, the case will not necessarily go away. The court will likely set a trial date. But this time, you will have the opportunity to defend yourself, with full knowledge of the allegations against you.
Isn’t There Anything I Can Do About The Process Server Who Lied?
Lying under oath is a crime in Maryland, so a process server who clearly and provably lies on an affidavit of service risks criminal prosecution. Such prosecutions are rare.
Lying on an affidavit of service may also be a violation of the Fair Debt Collection Practices Act (FDCPA). Process Servers are normally exempt from the FDCPA, but that exemption is limited to serving process – it does not cover lying in affidavits of service. Therefore, you may have a right to sue the process server. You should consult an attorney about that.
CONTACT US: If you have a judgment against you and you were never served, feel free to contact us for a consultation.