Previous articles on this website have the progression of a debt collection lawsuit from judgment to eventually the attachment of liens to real property, bank account seizures, and wage garnishments. Unfortunately, many consumers fail to protect themselves and defend against a lawsuit because of misconceptions about how the lawsuit is delivered.
Georgia law allows for both personal service and substitute service of a lawsuit. The purpose of the service of the lawsuit is so that the defendant can review the allegations, and file the appropriate response. If a valid answer to the lawsuit is filed within the time set by the court, then it will proceed to the next stage of the litigation process, which would involve discovery, the filing of motions, and eventually a trial on the merits. Unfortunately, if the defendant in a debt collection action does not timely file a response, then a default judgment will be granted in favor of the party collecting the debt. As I have told many clients, a default judgment is like a forfeit in a baseball game. It means you didn’t show up, so the other team wins automatically. Except for rare circumstances, the defendant will not have the opportunity for their day in court to assert their defenses and plead their case.
A lawsuit must be served by a sheriff, marshal, or private process server who has been authorized to serve lawsuits by the presiding court. The lawsuit must be hand delivered to the defendant “at their dwelling or place of abode”. However, it can also be served on a substitute, as long as the substitute is a person of reasonable age who can be expected to deliver the lawsuit to the defendant. This would include a parent, spouse, or even a child. However, many individuals incorrectly assume that if the lawsuit is delivered to a “substitute” and not delivered to them personally, no judgment can be asserted against them. They will eventually learn the hard way after this unwarranted assumption results in the seizure of their real or personal property.
If no suitable individual for delivery of the lawsuit is found at the abode after multiple attempts, the defendant may receive a letter informing him to contact the Sheriff’s department or Marshall’s office in order to pick up the paperwork. However, such a mailing does not constitute “service” under Georgia law. If unsuccessful in finding the collection defendant at their residence, a lawsuit may be served against an individual at their place of work or vacation home, if a sufficient amount of time is spent at the locale.
If you are contacted by a family member who says that they were served a lawsuit or court paperwork directed to you, do not ignore it. You may permanently jeopardize your legal right to contest the suit. Likewise, if a lawsuit is hand-delivered to you for another family member, you need to notify them immediately. A defendant will only have 30 days to file an answer to the lawsuit, so a delay in notification or delivery of the lawsuit could impair their ability to timely file an answer and defend against the suit. Even if you think that you were not served properly, a legal opinion would be strongly advised before you gamble and risk the chance that the presiding court may fund the service effective.