Service of divorce papers; process server lied

Discussion in 'Other Family Law Matters' started by Fenax, Sep 18, 2010.

Thread Status:
Not open for further replies.
  1. Fenax

    Fenax New Member

    Messages:
    11
    Likes Received:
    0
    Trophy Points:
    0
    Hello,

    I have a DVI RO against my husband. He recently attempted to have me served divorce papers; however, the Process Server lied and said they met me in “individual” person and served me. I have put forth an official Motion to Quash that due to the fact that I was not even in the state at the time and on the exact day the process server is swearing under oath that she served me papers I have three business professionals who have Sworn via Notary that they were with me in another state.

    My question is twofold:

    1.) What can I do to ensure this Process server gets her bad karma for what she did by lying under oath? I do not have an attorney and did the Quash on my own. By lying under oath she could have put me into Default and I could have lost everything! I am beyond upset at this. I just so happened to have received a Text message from my husband stating, “You were served and ‘had’ 20 days to respond”. It so happens that it was still w/in the 20 day mark – actually the 20th day in fact – so I caught it in time to Motion to Quash it and not in fact be in Default. Please note: I also provided a written “answer” to the Return of Service by stating in short: that I hereby “answer” this by stating that I was never served papers by this process server and can prove it.

    2.) First let me state that I do not have a divorce attorney and second that my husband's attorney has called me concerning the Motion to Quash her Return Service on the grounds that it was not in Fact served at all. I do not desire to talk to her as I feel I am ill-equipped to deal with a professional lawyer. I do not want to tell them how to serve me -- that is their problem and not mine and their burden not mine. The fact that the Process Server lied is my Burden to prove that she did and I am doing so with the Motion to Quash service. I am concerned on how to go about dealing with this: what rights do I have now that I have Motioned to Quash? Do I have to talk to my husband's attorney? It costs a lot of money to obtain a divorce attorney and at this time I simply don't have it. My medical, scholarship, and financial support is all through my husband at this time and I need "time" until I can finish my 5 college courses and obtain my degree and get a job – not to mention obtain legal counsel. I do not currently have a residence – as I left the marital home and have since been residing at various friends and family member’s homes - if that matters. Also, my husband is military – if that matters. Please advise.

    Thank you for your efforts on my behalf.

    In light,
    Fenax
     
  2. Proserpina

    Proserpina Moderator

    Messages:
    5,377
    Likes Received:
    495
    Trophy Points:
    0

    Frankly you need to get your three witnesses on the stand; a notarized statement is basically worthless.

    Notarizing a document does not prove the veracity of the contents; all it does is prove that the named signatory has provided proof of identification to the notary.

    Also notarized documents cannot be cross-examined. The very least you need to do is get them to an attorney and have them each make a sworn affidavit although this also cannot be cross-examined and if your ex's attorney wants to make a big deal about things....s/he can make life very difficult for you.

    In all honesty if your ex has an attorney, you really need to do whatever it takes to get one for yourself. Otherwise, as you can see, it's very easy to get buried by opposing counsel.
     
    Fenax likes this.
  3. Fenax

    Fenax New Member

    Messages:
    11
    Likes Received:
    0
    Trophy Points:
    0
    The three witnesses are police officers who were on duty at the time.

    It seems as if you are saying that the fact that the Process Server lied is irrelevant by the law. If I have put in an official Motion to Quash and I and my witnesses are all willing to go to court and stand before a judge to prove the Server is lying and that the "service" was based on "illegal" grounds - then it seems as if that would be "worth" something.

    How can she make life difficult for me if I have in fact "answered" her summons . . . thereby not allowing her to put in a Motion of Default; but "answered" that I was not in fact ever served - then I followed up the official "answer" to the summons/Return of Service by filing a Motion to Quash with the Court?

    It would seem I have the opposing counsel here - not the other way around. What is it that you are saying could be done to me by the opposing counsel?
     
  4. army judge

    army judge Super Moderator

    Messages:
    17,712
    Likes Received:
    1,746
    Trophy Points:
    113

    First of all, the fact that your "witnesses" and "testators" are police officers means nothing.

    The process officer is a quasi-officer of the court.

    The notarized statements are not admissible in a civil court proceeding.

    Your "witnesses" will be allowed to testify under oath in open court and are subject to cross-examination.

    I hope your "witnesses" fully comprehend and understand what they are about to begin.

    If you feel unprepared and ill-equipped to match wits with an attorney, they will soon feel that way.

    No, you need not speak with his attorney now, you'll be seeing her in court.

    There, you'll do battle against her.

    I'll only add, you claim you were out of town on the day in question.

    Were the three police officers out of town with you on the day in question?

    Why would you avoid service?

    Even if the process server obtains the "karma" of which you speak, you'll be served again, on your way to the courthouse. If you fail to appear, the divorce proceeding will thunder along without you!

    Damn, sure wish I could be there to see the show?


    Oh, to answer your question, once you file a motion to quash; you must appear to be heard on that motion.

    Since you are subject to the court's jurisdiction, you can and will possibly be served when you appear to be heard on your motion.

    You can't make a limited appearance for the limited purpose of arguing your motion to quash.

    The fact that hubby is in our nation's military isn't relevant.

    When you claim the process server didn't serve you, that's a legal conclusion. Only the judge can determine that.

    However, I hope you know that very few process servers operate alone. Someone is nearby FILMING the entire event. Often, they operate in teams of three or four, but at least two!!! They do that just for such eventualities as you assert!!!

    Your motion to quash probably fails, unless you electronically filed it on the 20th day. Or, you filed it in person at the courthouse. If you mailed it, or overnighted it, most courts won't use the postmarks to allow you to conform with the deadline. It has to be in court's hands to meet the deadline!!!
     
    Last edited: Sep 18, 2010
    Fenax likes this.
  5. Proserpina

    Proserpina Moderator

    Messages:
    5,377
    Likes Received:
    495
    Trophy Points:
    0

    I have to ask - what would the process server actually accomplish by lying?

    They are not party to the case....I'm not sure what purpose would be served...
     
  6. army judge

    army judge Super Moderator

    Messages:
    17,712
    Likes Received:
    1,746
    Trophy Points:
    113


    Process servers don't gain anything by lying on official government and court records.

    They know to do so is a felony.

    I suspect service might have been accomplished by "tack and mail".

    The husband probably called, having thought the 20 day response period ended. This would have brought about a default.

    The OP had someone check their old premise, alas, the "tacked" service was discovered.

    In an attempt to cure the default, this "unique" story was concocted.

    What I'm wondering about, is why would those three police officers lie, assuming they did?
     
  7. Fenax

    Fenax New Member

    Messages:
    11
    Likes Received:
    0
    Trophy Points:
    0
    Hello Army Judge,

    I think you may have misunderstood, I was not simply out of town I no longer live in the state and had moved away. The Process Server went to my mother's house but I was not living with my mother. When she did not find me there she simply lied and said she served me anyway. The police officers I was with did not leave with me - they reside in the state I am actually now living in which is why I was with them.

    You seem to be taking a tone in siding with a liar - just because the Process Server is a quasi of the court doesn't mean she is doing the right thing. She is not.
    I am not trying to avoid being served I am simply contesting the FACT that I was NOT served and do not appreciate some QUASI of the court trying to make her job easier and my life more difficult by LYING to accomplish her goals.

    The fact is that according to the LAW if my witnesses have to travel over 100 miles to go to court they do not have to travel it but can make sworn testimonies regarding the FACT that they were with me and not where the Process Server said I was. This comes from Federal Rules of Civil Procedure/Rule 45: (3) Quashing or Modifying a Subpoena.

    (A) When Required. On timely motion, the issuing court must quash or modify a subpoena that:

    (i) fails to allow a reasonable time to comply;

    (ii) requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person — except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held.

    While I appreciate your efforts in answering my reply I certainly do not appreciate your tone with me as I have done nothing to illicit such from you. I have been through hell with this man ... you might have missed the Domestic Violence Injunction part of this post.
     
  8. Proserpina

    Proserpina Moderator

    Messages:
    5,377
    Likes Received:
    495
    Trophy Points:
    0

    I suggest you hire an attorney.

    You have some issues here which cannot be addressed on a legal forum.

    (Largely that you seem to have a lack of understanding of both procedure and rules)
     
  9. Fenax

    Fenax New Member

    Messages:
    11
    Likes Received:
    0
    Trophy Points:
    0
    Hello Proserpina,

    I have asked myself that very question, and I do not know, but I promise you she is in fact lying.
    I have not been in the state of Florida since I left my home of residence there.
    I didn't even know anyone was trying to serve me - so, the fact that she just outright lied is beyond me. I don't know if they get paid more or if she just didn't want to hassle with locating me or what her deal was.

    My husband hasn't exactly been right since he returned from war and began a serious escalation in drinking. One thing led to another and although he never laid his hands on me before he lost it and I had to have him arrested. I left my home soon thereafter and have not told anyone my whereabouts due to the RO; however, the way I understand it they should have went through proper channels to notify me NOT just outright LIE. Even the newspaper would have been effective.

    All I want to know now is how can I help myself in this situation and what is the best course of action for me to take. That Army Judge fella seems to want me raked under the coals and I don't even know him. A bit over the top for me.

    I would get a lawyer and WILL get a lawyer when I can afford to OBTAIN one. Right now I have not been back from overseas with my husband and his career for very long and left two careers to go overseas with him for nearly 4 years. So, I need time to get a job...time to get money ....I just need time and help. That'all ....NOT an ass chewing from Army Judges.

    I appreciate your help Proserpina and efforts on my behalf.
    Thank for your time and kind tone.

    In light,
    Fenax
     
  10. Fenax

    Fenax New Member

    Messages:
    11
    Likes Received:
    0
    Trophy Points:
    0
    Hello Army Judge,

    In response to your post: Process servers don't gain anything by lying on official government and court records.
    They know to do so is a felony. Well, I certainly hope she is prepared to face that music then.

    I suspect service might have been accomplished by "tack and mail". I do not know what "tack and mail" is but the Return of Service said she served me by "individual served to the above named person" not by Tack and Mail.

    The husband probably called, having thought the 20 day response period ended. This would have brought about a default.

    The OP had someone check their old premise, alas, the "tacked" service was discovered. The old premise is the house my husband is currently living in - where I am not residing and there is an active RO

    In an attempt to cure the default, this "unique" story was concocted. I have not concocted anything about this - believe what you want. As nuts as it may sound - it is the truth.

    What I'm wondering about, is why would those three police officers lie, assuming they did? That's because they are NOT lying. They live in the state I am living in and were really with me on the day the Process Server is stating she "individually" served me papers.
     
  11. army judge

    army judge Super Moderator

    Messages:
    17,712
    Likes Received:
    1,746
    Trophy Points:
    113




    Frankly, your likes, dislikes, desires, concerns are of no moment or import to me.

    I suggest you retain counsel.

    Why?

    You are so far off base and clueless, that you fail to see the CLOCK CLEANING you are about to receive.

    I'll throw you a clue, because I'm an all around good guy and love all human beings.

    The FRCP are not applicable in a Florida civil law suit or divorce proceedings.

    I don't just play a lawyer on the internet.

    I am one.

    I only wish I could be present to see the fireworks and CLOCK CLEANING.

    Have you ever seen a deer in the headlights.

    Hold on a couple days, you will!!!!!!
     
    Last edited: Sep 18, 2010
    Fenax likes this.
  12. Fenax

    Fenax New Member

    Messages:
    11
    Likes Received:
    0
    Trophy Points:
    0
    Hello Army Judge,

    I will heed your advice and obtain counsel as soon as I can.

    Yes, I can certainly tell that I am of no moment or concern to you; however, thank you for your advice on this matter.

    I do not know what an FRCP is?
    What is that?

    I have answered this Civil Divorce Summons officially - so the "answer" should be enough to buy me some time and not allow for a Motion of Default to be set against me.
    So, in the meantime I will work to obtain counsel and Counter the Divorce Petition

    However, I am still pursuing the fact that this Quasi officer of the court lied because it is just the point of the matter - she should be held accountable for her actions and - as it could have COST me greatly.

    In light,
    Fenax
     
  13. army judge

    army judge Super Moderator

    Messages:
    17,712
    Likes Received:
    1,746
    Trophy Points:
    113






    FRCP = Federal Rules of Civil Procedure

    You said you used the FRCP as a guide in filing your motion.

    You also don't BUY time by filing frivolous motions.

    That gets you held in contempt.

    I'm also a former judge.

    I am now retired, but occasionally sit as a visiting or relief judge.

    I also know when people are trying to play tricks or games with the court.

    I'll bet that Florida judge recognizes those things, too.

    You should have used the Florida Rules of Civil Procedure.

    Here's a couple links:

    http://phonl.com/fl_law/rules/frcp/

    http://www.floridabar.org/tfb/TFBLe...e1a89a0dc5248d1785256b2f006cccee?OpenDocument
     
    Last edited: Sep 18, 2010
  14. Fenax

    Fenax New Member

    Messages:
    11
    Likes Received:
    0
    Trophy Points:
    0
    Please note: I submitted the following to the court: 7:143 Defendant's Motion to Quash Service of Process on the following grounds: "The return is false because it says that service was made by a person authorized to serve process, that a copy of the initial pleading was delivered and that the person served was at the usual place of abode of defendant and none of these occurred".

    I further added details: "The process served has lied as the defendant was in another state at the time the reported service to her individual person was reported to have occurred. Defendant has proof in the form of receipts, people, and professionals who can attest she was not present as the Process Server swore under oath to. Furthermore, the defendant does not and has not resided at the place of service at any time, but left her home residence at ______ on such and such date and has proof she has been residing out of the state of Florida since that time. Defendant was not at that address. Defendant did not refuse any papers as no papers were presented to her by "individual service" or otherwise as the Process server reports."

    And as far as the Divorce Summons Return of Service: I officially Answered it in writing and it was recorded before the 20 day time clock was up. My answer was: "I hereby officially Answer this summons and in addition state that I was not in fact served by anyone any papers. I truly was not served on this day or in the state of Florida as I do not and have not lived in Florida since I left my home of residence on such and such date. I have never seen this process server and I have never lived at the address she attempted service where this Process Server is stating I was at on the date of ________. I have receipts, people, and professionals that can attest I was not in Florida, but in _____ state on the date the process server claims to have served me. I do not live in Florida. I was not at that address. I did not refuse any papers as they were NEVER presented to me in the first place.
    I find this very unprofessional that a person of the court would swear under oath that they served a person official legal papers when that person was not even in the state."


    Then I furnished a copy of my Official and Documented "answer" to the my husband's attorney.

    So, how will I get my CLOCK CLEANED from this?

     
  15. army judge

    army judge Super Moderator

    Messages:
    17,712
    Likes Received:
    1,746
    Trophy Points:
    113




    First of all, if you did it that way, the court won't like it.
    The court also doesn't have to accept it.
    You are filing a pleading in a Florida court.
    Florida requires you to follow the Florida Rules of Civil Procedure.
    You followed the Federal Rules of Civil Procedure.
    Do you FAIL to note the difference?

    If the court refuses to accept your motions (I would), then you failed to file an answer.
    It isn't about whether service was effected.
    It is about pleadings.
    All pleadings must be in a certain format.
    Florida is a very pro se friendly state.

    Florida has most everything you need to DIY in lawsuits.
    Every Florida court has a website.
    The court's website will tell you how pleadings are to be formatted and where they are to be submitted.
    The only exceptions to some of those rules are to accommodate incarcerated individuals, who don't have access to computers, typewriters, or word processors.



     
  16. Fenax

    Fenax New Member

    Messages:
    11
    Likes Received:
    0
    Trophy Points:
    0
    Hello Army Judge,

    Okay, thank you. I did not use the FRCP when I filed my Motion to Quash. I did that correctly as I had a little help with the Law Library lady. => Thank goodness. I looked up the FRCP when I was trying to find out if my witnesses would have to travel to testify or not because it is over 100 miles for them to do so.

    I apologize - you are correct - I am pretty much clueless to a HIGH degree regarding the law.

    I know you probably are having a hard time believing the process server lied, but it is the truth. That is not a game -- I wish it was not happening because who likes to have to go through the steps to defend themselves like this? I suppose I could just leave it alone but it is the principal of the matter for me. Aside from the Divorce Petition it is separate for me. She lied and that is horrible. Because if I hadn't received a text message from my husband that I was served and in default I would never have known anything about it. He was not being nice by telling me - fortunately he was incorrect about the date so I was still within the 20 day mark.

    I certainly do not want to play games with ANY Judge - I am a former law enforcement officer and social worker. I am a good girl. I don't want trouble. This just happened -

    Thank you very much for your time and your advice.
    I will look up those links for Florida Rules of Civil Procedures.

    In light,
    Fenax
     
  17. Fenax

    Fenax New Member

    Messages:
    11
    Likes Received:
    0
    Trophy Points:
    0
    I forgot to tell you that the actual Motion I used was already a Template on the computer at the Law Library. The Law Library lady found the Motion I needed in the Civil Law Book then Pulled up the Motion # on the Computer and all I did was fill in the blanks with the name of the Circuit Court, the County, the Plaintiff name versus the Defendant, and the Case # with some additional details.

    Unless, what you are saying is that it (7:143) is not in fact a Civil Motion to Quash that I used but was a Federal one? That could be a problem.

    If that is the case.....well, darn....I guess I just really screwed the pooch on this altogether.
     
  18. Fenax

    Fenax New Member

    Messages:
    11
    Likes Received:
    0
    Trophy Points:
    0
    Hello Army Judge,

    I found both sites you referred me to - to be most excellent!!!

    When reading about the Civil Cover Letter it stated this:


    FORM 1.997. INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET
    Plaintiff must file this cover sheet with first paperwork filed in the action or proceeding (except small claims cases or other county court cases, probate, or family cases). Domestic and juvenile cases should be accompa-nied by a completed Florida Family Law Rules of Procedure Form 12.928, Cover Sheet for Family Court Cases. Failure to file a civil cover sheet in any civil case other than those excepted above may result in sanctions.

    So, I think I'm safe....because this is a Family Law case. =>
     
  19. Fenax

    Fenax New Member

    Messages:
    11
    Likes Received:
    0
    Trophy Points:
    0
    Hello Army Judge,

    Yes, I did file the Motion to Quash in person at the courthouse with the Clerk of the Court who stamped it and filed it and put it in the opposing attorney's box prior to the 20 day mark. So, that's awesome that I'm safe on that note.


    You said: However, I hope you know that very few process servers operate alone. Someone is nearby FILMING the entire event. Often, they operate in teams of three or four, but at least two!!! They do that just for such eventualities as you assert!!!

    As for the filming....Bring it on....I really wasn't there so there is NO way I could be on FILM. That's even better. I was sincerely and truly hundreds of miles away in another state. So, I think the Judge should find that FACT of some importance in his court - or at least, I would think so....Judges are the closest things to God on this planet - so, who knows what he/she will think....but considering the Process Server is a Quasi person of the court you would think her LYING and messing with someone's life like that would certainly matter to a Judge - on that merit alone.

    As far as serving me when I come to court - I have no problem with that.

    Again, thanks. You're the bomb!

    In light,
    Fenax
     
  20. army judge

    army judge Super Moderator

    Messages:
    17,712
    Likes Received:
    1,746
    Trophy Points:
    113





    That is precisely what I said.
    The Florida Civil Procedure Rule for a motion to quash service of process pursuant to Florida Rule of Civil Procedure 1.140.

    Florida Rules of Civil Procedure are delineated: 1.XXX.

    They aren't delineated as 7:XXX.
    That implies the Federal Rules of Civil Procedure was used.



    Here is the relevant portion for defenses on pleadings:

    http://floridacivpro.com/rules/2009/10/1140-defenses.php


    You said it, too on the prior page: See your note below in quotes!!!

     
Thread Status:
Not open for further replies.

Share This Page