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  1. #1
    Join Date
    Oct 2009
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    5

    Default Getting a Case Dismissed for Non-Service - Traverse Hearing

    Ok, so a traverse hearing was granted by judge to determine if defendant was properly served. The defendant’s defense was as follows.

    1) The name referenced does not exist at address (they stated they served an individual with defendant’s unmarried name).

    2) Description does not accurately describe anyone in household. Discrepancy is ~2" in height and 40lbs in weight to someone in household.

    3) The zip code stated on the affidavit of service was wrong for mailing address (second copy mailed per requirements). Also Defendant did not receive any copies either by mail or person in household.

    Other than possibly bringing an affidavit by the only adult in household confirming defendants defense, is there anything else needed to substantiate reasonable doubt.

  2. #2
    Join Date
    Sep 2005
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    Default Re: Getting a Case Dismissed for Non-Service - Traverse Hearing

    The name issue isn't particularly compelling. If the issue is soley that the defendant has married, the exchange could be, "Are you Jane Smith?" "I used to be." Or, "Is this Jane Smith's House?" "Yeah, Jane lives here."

    Similarly, being mistaken as to height and weight isn't definitive. Some people have a much better eye for that than others; but, as they say, every little bit helps. A zip code error could explain non-delivery, but I would have expected the envelope to have been returned to the sender.

  3. #3
    Join Date
    Oct 2009
    Posts
    5

    Default Re: Getting a Case Dismissed for Non-Service - Traverse Hearing

    What I am trying to explain with the name, is they stated they served the paperwork to (an alternate individual) saying their last name is the same as the defendant’s unmarried name. There is no person at this residence with this last name. This description does not exactly match anyone either.
    If there is doubt whether someone is served with papers and they can't prove who the papers were served to, what would be the plaintiff’s defense?
    To further clear up things no one in the household was served, this is not an attempt to be dismissed due to a technicality. I just want to assure all bases are covered when going to court.


    Secondly, I would agree that the letter would be returned to the attorney or the return to address, or it could have gotten lost (as I was told by usps), but this law firm is not the most honest in its work practices. It is obvious by the affidavit of service there is a defect with the mailed address. They should have identified this and acted upon it prior to seekiing a default judgment.

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