Can appearing in court or being sent email through a third party be considered as proof of service to a summons?
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Can appearing in court or being sent email through a third party be considered as proof of service to a summons?
A credit card filed a suit with the second hearing coming up in about a week. The plaintiff’s claim they have served me with the summons, but in actual fact, they have not. I got hold of the summons from a third party (the dept counselor’s helping me to negotiate a settlement)who they emailed it to on their request and who in turn emailed it to me. Can this be regarded as proof of service? The hearing is titled “OSC Re Dismissal For Failure to Prosecute”. The onus is on the plaintiffs to show they served me. I appeared in court for the first hearing and told the judge I was never served but got the copy from a third party. Is my admittance in court that I have seen a copy of the summons tantamount to being served by law? Does it make sense to reply the summons before next court hearing or will this do more damage? Can there be a default judgement against the defendant before the haering date? Can the case be dismissed if plaintiffs do not provide a credible proof of service?
Asked on June 4, 2012 under Bankruptcy Law, California
Answers:
FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney
Answered 11 years ago | Contributor
Under the laws of all states in this country, service of a summons and complaint is accomplished under certain circumstances by personnel service, sub-service, publication or certified mail return receipt requested.
Service by e mail does not suffice. Admittance of having a copy of the summons and complaint from a third person could be deemed by the court that you have actual knowledge of the summons and complaint and have been served. The issue is was the third person who gave you the summons and complaint representing the plaintiff as a process server in serving you?
I suggest that you pull the court file on your matter to see if there is a proof of service filed regarding the summons and complaint against you. If there is, then if you do not answer the summons and complaint in thirty (30) days after sevrice, you can be defaulted. I would first review the court file against you before makiung a decision to reply to the summons and complaint. Potentially the case can be dismissed by the court and the upcoming OSC re dismissal.
I suggest that you may want to consult with an attorney who does civil litigation work to assist you further in possibly defending the action that you are writing about.
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