In the first three months of 2012 our little firm has obtained vacation (reversal) of nine default judgments based on lack of notice. Many of these nine clients had been suffering from wage garnishments and bank levies, which were stopped due to our efforts. I spoke to four more victims of this practice yesterday. We are only one law firm. For every one person we help there must be a dozen who seek help from other firms and a hundred more who don’t seek help and suffer from wage garnishments and bank levies, or pay unreasonable settlements under threat of these collection practices.
Now let’s take a moment to cover how this whole “service of process” system works. I am repeatedly asked during our free consult calls whether the dishonest process server falsified the caller’s signature in order to accomplish the fraud. The answer is “no”, because THE PROCESS SERVER IS NOT REQUIRED TO GET YOUR SIGNATURE ON ANYTHING. Let’s meet the cast of characters in this little vignette:
Process Server (picture the heavy marijuana user from the movie Pineapple Express, only not as funny): He is paid a flat fee for every person he serves. This person works for…
Process Serving Company: a company which does not place any value on honesty. This process serving company is under pressure from…
Debt Collection Law Firm: (see Soulless Automatons from our previous posts). This firm will take its long term contract away to another process serving company if it does not get results. It likes the plausible deniability of being able to say that it (the law firm) is not at fault if its process server makes a “mistake”.
Here’s how it works. Debt Collection Law Firm gives Process Serving Company an address it knows is old, and that there is a very good chance the person being sued (defendant) does not live there anymore. Process Serving Company also knows this is likely a bad address, as does Process Server. Nobody cares. Process Server knocks on door of bad address. The door is answered by a 22 year old, tall, blond, blue-eyed woman named Cindy. Process Server knows something is wrong. He is looking for a 45 year old Latino man. Process Server does not care.
Process Server: “Juan Carlos Perez-Hernandez?”
Cindy: “No, my name is Cindy. My boyfriend is Ian. He is 24 years old. He is tall, blond, and green-eyed (Cindy is proud of her handsome boyfriend). We moved in here last year. I don’t know anyone named Juan Carlos.”
Process Server: OK. tell Juan Carlos I was here.”
Cindy: “But…”
[Process Server ignores Cindy and walks away while marking in his little book that he tried to personally serve Juan Carlos at home but Juan was not at home at the moment. Process Server actually marks this twice even though he may or may not have acted out the scene twice].
[Later that week. Same house.]
Process Server: [knocks at door. Ian answers. Ian looks just like Cindy described] “Juan Carlos Perez-Hernandez?”
Ian: “No. My name is Ian. I have lived here with my tall, blond, blue-eyed girlfriend, Cindy, for about a year (Ian is very proud of his beautiful girlfriend). I don’t know anyone named Juan Carlos.”
Process Server: “Give this to Juan Carlos.” [Drops Summons at Ian’s feet].
Ian: “But…”
[Process Server ignores Ian and walks away.]
Process Server will now report back to his boss that substitute service on Juan Carlos’s “co-tenant” named “John Doe” was completed. He will mail the Summons to the same bad address the next day. He will sign a document called a Proof of Service under penalty of perjury, describing all this but leaving out the parts that show the whole process is a sham. At this point the reader can easily imagine about a dozen variations on these scenes, all resulting in Mr. Perez-Hernandez not getting the notice of lawsuit required by both the United States and California Constitutions.
When we at The Fullman Firm bring the issue of dishonest process servers before judges via Motions to Vacate Default Judgments, we win by providing external proof of the fraud committed by the process servers (proof that our client did not live at the address stated, proof that our client was out of town, or at work, etc.).
Now, you may ask yourself “why do you bother to gather ‘external proof’?” If it is the client’s word against the process server, why wouldn’t the judge believe the client’s word? If a judgment was entered against our client based on the mere word of a process server, and if a judge personally presides over dozens of hearings per year in which it is PROVEN that process servers sign false Proofs of Service, why would the judge keep taking process servers at their word?
The answer is simple. The system is so badly broken that to admit its “brokenness” would cause the whole convenient system to come crashing down. Judges like it when debtors do not defend themselves. We know this because when we go to trial the judges are often annoyed that we are providing our clients with a full defense. Default judgments mean less work for debt collectors, judges, court employees, etc. The system is broken but no one cares. They like it this way. It’s easier.
But, when The Fullman Firm offers reliable proof in a particular case, there is little a judge can do but admit the “mistake”, vacate the judgment, stop the wage garnishment or bank levy, and pretend the “mistake” was an isolated incident. Sure, the system remains broken, but at least our client gets the results he hired us for. That’s what we do, one client at a time.
