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Legalease
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Experience:  15 years exp all aspects of general law
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Regarding Service. The Small Claims Handbook for Colorado states:

Resolved Question:

Regarding Service. The Small Claims Handbook for Colorado states: "Generally,a person who is not involved in the case or not a family member of someone involved in the case,.......needs to deliver the Complaint to the Defendant..."

The person who "served" is a relative of the Plaintiffs as well as the girlfriend of one of the employees of the Plaintiffs who also participated in the actions. The person who served could not locate either Defendant and provided the Court with two notarized "Affidavit of Service" documents stating the summons was "handed to a person identified to me as the Defendant". As a result, one of the Defendants, who was out of State at the time of the alleged service, was determined by the court to have missed Court and therefore the Plaintiff could file for a Summary Judgement against the Defendant not present for the entire claim. The other Defendant also was not served as stated in the Affidavit but did attend the mandatory mediation 1st meeting.

Is there a legal issue related to a family member acting as process server? Do the defendants have any legal basis for civil or criminal action against the Process Server or the Plaintiffs for perjury on the Affidavit for Service? It will be quite easy to prove the Process Server did not ever see or serve the Defendants and one of the Defendants was out of state.
Submitted: 11 months ago.
Category: Legal
Expert:  Legalease replied 11 months ago.

Hello there

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An affidavit of service is a sworn document signed under the pains and penalties of perjury. If you can prove that the process server lied on the affidavits and did not actually see or serve either defendant, then the process server can be brought up on charges of perjury by the court, which carries penalties of several years in jail and a few thousand dollars in fines (those are max penalties and the penalty actually imposed by the judge in this case will be up to the judge based upon how serious the case is and the perjury is to the case). Regarding the unrelated third party server requirement -- it is against the civil procedure rules but there are no actual criminal penalties if the court finds out about it -- the remedy in such a situation is for the judge to dismiss the case WITH prejudice (meaning that the case cannot be refiled in any court again and it is effectively dead).

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MARY

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Customer: replied 11 months ago.

Thank you.


 


So there is nothing actionable by the Defendants against the Process Server? It is up to the Court?

Expert:  Legalease replied 11 months ago.

Hello again Dave ---

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You could sue the process server for damages, but whether or not you want to pursue that avenue really depends upon how much your damages are and how much you really think you will be able to get out of him (if he has any money at all to pay you). There is no automatic provision for the payment of attorney fees in a case like this so you will most likely end up having to pay your own attorneys fees in order to pursue such as case as well.

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If you have not done so already, can you please press a positive rating below so I will be paid for my time. If you have follow up questions I can answer them even after you press a positive rating below. THANK YOU

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MARY

Legalease, Lawyer
Category: Legal
Satisfied Customers: 14511
Experience: 15 years exp all aspects of general law
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