Celebrating 10 years! 2007-2017

Service by posting

My client has been served by posting on the front door. No ithacadude2310/02/17
What do the pertinent statutes/rules say? You should post th jeffm10/02/17
If such service cannot be effected under subdivision 2 a, th ithacadude2310/02/17
Where I live it means the plaintiff gets a judgment for poss fettywap10/02/17
"A judgment by default which is not founded on a sufficient jeffm10/02/17
What about § 8.01-288 Process received in time good ithacadude2310/02/17
What's the case law say? jeffm10/02/17
well, he had actual notice, but i am not sure if it is a def ithacadude2310/02/17
Has a default already been entered? jeffm10/02/17
no, but we are contemplating whether not to go and see what ithacadude2310/02/17
OK. I wouldn't sit back and allow the default to be entered jeffm10/02/17
I would not appear unless you need to negotiate with the oth fettywap10/02/17
Does the client have an actual defense? If so, I would just onehell10/02/17
OP, your "wait and see what happens" approach is a generally specv31310/03/17
ithacadude23 (Oct 2, 2017 - 8:07 am)

My client has been served by posting on the front door. No process was mailed and no certificate of mailing has been filed (it is required 10 days before a default judgment). What are the consequences of non-appearance?

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jeffm (Oct 2, 2017 - 8:24 am)

What do the pertinent statutes/rules say? You should post the text of them.

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ithacadude23 (Oct 2, 2017 - 8:48 am)

If such service cannot be effected under subdivision 2 a, then by postinga copy of such process at the front door or at such other door as appears tobe the main entrance of such place of abode, provided that not less than 10days before judgment by default may be entered, the party causing service orhis attorney or agent mails to the party served a copy of such process andthereafter files in the office of the clerk of the court a certificate ofsuch mailing. In any civil action brought in a general district court, themailing of the application for a warrant in debt or affidavit for summons inunlawful detainer or other civil pleading or a copy of such pleading, whetheryet issued by the court or not, which contains the date, time and place ofthe return, prior to or after filing such pleading in the general districtcourt, shall satisfy the mailing requirements of this section. In any civilaction brought in a circuit court, the mailing of a copy of the pleadingswith a notice that the proceedings are pending in the court indicated andthat upon the expiration of 10 days after the giving of the notice and theexpiration of the statutory period within which to respond, without furthernotice, the entry of a judgment by default as prayed for in the pleadings maybe requested, shall satisfy the mailing requirements of this section and anynotice requirement of the Rules of Court. Any judgment by default enteredafter July 1, 1989, upon posted service in which proceedings a copy of thepleadings was mailed as provided for in this section prior to July 1, 1989,is validated.

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fettywap (Oct 2, 2017 - 9:25 am)

Where I live it means the plaintiff gets a judgment for possession only.

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jeffm (Oct 2, 2017 - 9:46 am)

"A judgment by default which is not founded on a sufficient and duly served process is void. See 11A M.J. Michie's Jurisprudence Judgments and Decrees § 189, at 245 n. 19 (1978). Because the record shows that personal service was not made on Garritty according to the procedure mandated by statute, the judgment of the juvenile court was void and a legal nullity."

https://scholar.google.com/scholar_case?case=11104073043571377757&q=8.01-296+default+mail+set+aside&hl=en&as_sdt=4,47

Using Google Scholar to look up Virginia case law. Search was on "8.01-296 default mail set aside"

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ithacadude23 (Oct 2, 2017 - 10:18 am)

What about

§ 8.01-288

Process received in time good though neither served nor accepted

Except for process commencing actions for divorce or annulment of marriage or other actions wherein service of process is specifically prescribed by statute, process which has reached the person to whom it is directed within the time prescribed by law, if any, shall be sufficient although not served or accepted as provided in this chapter.

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jeffm (Oct 2, 2017 - 10:37 am)

What's the case law say?

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ithacadude23 (Oct 2, 2017 - 10:51 am)

well, he had actual notice, but i am not sure if it is a defect in the process or defect in the manner of service.

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jeffm (Oct 2, 2017 - 10:53 am)

Has a default already been entered?

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ithacadude23 (Oct 2, 2017 - 10:58 am)

no, but we are contemplating whether not to go and see what happens. They have a default judgment checklist and Certificate of Mailing is one of them.

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jeffm (Oct 2, 2017 - 11:03 am)

OK. I wouldn't sit back and allow the default to be entered. I, too, saw the case making a distinction between a failure in the *manner* of service of process vs. a failure in the process, itself. That was the case involving notice of motion for entry of judgment, where judgment was entered on the *original* motion (which was never served) and defendant had a copy of the *amended* motion. Thus, no process.

No doubt you saw this, or a very similar case (and this is why I wouldn't sit back and let it happen): https://scholar.google.com/scholar_case?case=1108927982625120379&q=default+set+aside+8.01-288&hl=en&as_sdt=6,44

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fettywap (Oct 2, 2017 - 11:53 am)

I would not appear unless you need to negotiate with the other side, as long as you're sure your client isn't lying to you about service.

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onehell (Oct 2, 2017 - 7:19 pm)

Does the client have an actual defense? If so, I would just file an answer and if the deadline to answer has otherwise passed, a motion to extend the time to file the answer based on the defective service.

Merely hoping the judge will notice the defect on his or her own and vacate the thing until service is effectuated is too risky, particularly in the high-volume courts that tend to hear this time of thing in my experience. And of course appearing admits to actual notice, so it seems to me that the sensible thing to do is answer and use the defect to argue that the answer should be considered timely filed, if need be.

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specv313 (Oct 3, 2017 - 11:08 am)

OP, your "wait and see what happens" approach is a generally bad idea. One thing I would consider:

In your jurisdiction, who is empowered to enter a default judgment? In mine, in a case such as yours, where a party states that service of process was made in accordance with the Rules and that no responsive pleading/motion was thereafter filed, the filing office may enter the default (assuming that its for a judgment of money). It is similar in many states--i.e., entry of default is a ministerial act done by the filing office without the need to a judge to sign off on the default.

That being said, I would be reluctant to wait around and "see" if a default judgment is entered against your client. If you allow a default to be entered, you'll then have to file something --i.e., a petition/motion (whatever you call it in your jurisdiction) to strike off/vacate the judgment. Why bother putting your client in that position? You'll be arguing to the court that service of process was improper and that the court should remove the default, and you'll have a good argument in this regard based on your post ... but, at the end of the day, what purpose does this serve? If you ultimately win, it just puts your client back in the position he/she was in prior to the entry of default.

Essentially, by waiting around to see if a default is entered, you put your client at more risk than necessary. In my jurisdiction (and I'm sure in yours) there's a whole host of rules/case law regarding removing a default judgment. It's going to fall on you to make sure you follow those rules.

If really want to challenge service, I would file your jurisdiction's equivalent of a Federal Rule 12(b)(5) motion - i.e., insufficient service of process. At least with that type of filing you're not fighting you way out from under a default judgment.

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