Note: This post contains updated information after its original posting date.
When it comes to creditor rights deficiency lawsuits, it’s rare that I see something new.
Most defendants’ Answers to my lawsuits to collect unpaid debts follow the same pattern: They admit the jurisdictional/party paragraphs, claim they lack sufficient information on the amount of the debt, and then deny all paragraphs alleging default and asking for a judgment.
Recently, however, I saw a creative argument that, honestly, freaked me out.
It was an Answer that contained the following “Affirmative Defense:”
Plaintiff’s claim should be dismissed due to insufficient service of process for failure to include required information on the Return of Service. The Return on Service of Summons for both Defendants fails to include the process server’s name and/or address as required by Tennessee Rule of Civil Procedure 4.01(2). See Lasher v. Robertson, No. 03A01-9402-CV-00075, 1994 WL 579972, *2-3 (Tenn. Ct. App. Oct. 24, 1994).
In that Lasher opinion, the Court of Appeals was faced with a return on a Summons that “contained only the date and the unreadable signature of the process server.”
Two years later, the defendant filed a motion to dismiss, alleging insufficient service of process of the lawsuit. That motion was granted.
Citing Tenn. R. Civ. P. 4.01, the Court of Appeals agreed.
For starters, “The process server must be identified by name and address on the return.” See Tenn. R. Civ. P. 4.01(2). Further, “The person serving the summons shall promptly make proof of service to the court and shall identify the person served and shall describe the manner of service.” See Tenn. R. Civ. P. 4.03(1).
Applying those rules, the Court of Appeals wrote:
The Plaintiff’s process server met none of the requirements contained in Rule 4.01(2) of the Tennessee Rules of Civil Procedure. The process server was not identified by name and address on either the return of service or on the affidavit; he did not promptly and within the time during which the person served must respond, make proof of service to the Court; he did not identify the person served nor describe the manner of service. Even considering the very untimely filed affidavit of Daniel C. Derrick, the requirements of Rule 4.03(1) of the Tennessee Rules of Civil Procedure still were not met. Indeed, the record is totally void of the location of Defendant Robertson’s residence. Neither Defendant filed an answer and there is no indication in the record before us of any documents being served upon either Defendant during the pendency of the proceedings in the lower Court.
Given the custom and practice regarding service of process Tennessee handling consumer and commercial collection lawsuits, this case and analysis can have broad reaching impact.
In the end, there’s a lesson here: (1) Include the process server’s name and address on the Summons; and (2) When in doubt, include the method, manner, and details of the service on your Summonses.
Creditors Rights 101 