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What Is an Affidavit Of Non-Service?

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  • Written By: Mary McMahon
  • Edited By: Kristen Osborne
  • Last Modified Date: 19 August 2014
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An affidavit of non-service is a sworn legal statement indicating that a person was unable to serve a legal document. This statement goes on record to demonstrate an effort to reach the subject of the legal document and provide details about when and how service was attempted. If and when the case reaches court, and a dispute over service of court-related documents arises, this affidavit can be used to prove a good faith effort to make contact with the subject of the document.

People tasked with serving legal documents can include law enforcement officers, as well as private process servers. In both cases, people are expected to locate the subject of the document and personally deliver it. Some steps may need to be taken, such as tracking down a forwarding address or finding out where a person works. If an initial attempt at service fails, it must be attempted again. Process servers may ask friends and neighbors for help when attempting to locate someone with the goal of successfully serving the paperwork.

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If, despite trying to serve the document in every reasonable place and at a variety of times, and the process server deems it undeliverable, an affidavit of non-service is filed. The affidavit names the process server and provides contact information before listing the details of service attempts and explaining why they failed. A server might note that a neighbor said the subject moved without leaving a forwarding address, for instance, or that an employer indicated a person was no longer employed.

In the affidavit of non-service, the process server documents the due diligence used to try to find the subject of the document. Depending on the type of case involved, various legal actions can be taken, including moving forward with the case and potentially entering a judgment against the subject in absentia.

Process servers try to avoid situations where they end up having to file an affidavit of non-service, as this can make a case more difficult to handle in court. They are allowed to use a variety of techniques when tracking people down to serve legal papers, and sometimes it can take several weeks to successfully locate someone, especially if that person is actively attempting to avoid the process server. It is advisable for people to leave forwarding address and work information when they move to avoid cases where a process server tries to reach them and fails, allowing court proceedings to move on without them.

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drtroubles
Post 2

@letshearit - In some states you can actually automatically lose a lawsuit or be sent to jail for intentionally ignoring legal papers, or even just not being around to get them. Pretty much if you get that affidavit of non-service it is pretty hard to argue that you were willing to get the papers because a process server, the person delivering the papers, will more than likely try just about everything to get them to you.

A lot of process servers speak with neighbors, call any known acquaintances, contact any listed places of work, just to find you. Once you have been listed on an affidavit of non-service things can only go badly from there on in my opinion.

letshearit
Post 1

You really don't want someone to file an affidavit of non-service against you, especially in a lawsuit because it can mean that a judgement can be made without you giving your side of the story.

A good example of this is is you are in breach of some sort of contract and don't fulfill your part of the bargain. If the person you were dealing with were upset enough they could sue you for damages.

The court would see to it that you were served with papers letting you know what is happening. If you don't get these papers, no matter how much you say you were just unavailable, the court generally views this is avoidance and can file in favor of the party that has actually showed up to fight. Just ignoring legal matters doesn't make them go away.

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