appeal service
Appeal rights loss if refuse to be served?
<p>If a defendant refuses to be served, can the plaintiff file a motion (?) so that the defendant loses their rights to make an appeal of the judgment?</p>

<h2>You <em>have to</em> serve the defendant</h2>
<p>Unless and until you do, you aren’t going to court. If you can’t find the defendant, you can’t sue the defendant.</p>
<p>Rules of service vary by jurisdiction but under the Uniform Civil Procedure Rules (<a href="https://www.lawaccess.nsw.gov.au/Pages/representing/Local_courts_small_claims/owed_money/starting_your_case/serving_soc.aspx" rel="nofollow noreferrer">UCPR</a>) implemented in all jurisdictions in <a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" rel="tag">australia</a> they are (for an individual):</p>
<blockquote>
<ul>
<li>hand it to the defendant</li>
<li>leave it in the presence of the defendant and explain what it is</li>
<li>leave it with a person at the defendant's home address who appears to be over the age of 16 years and living at that address</li>
<li>leave it at the defendant's work address, with a person who appears to be over the age of 16 years, if the defendant is a sole trader</li>
<li>ask the Local Court to post it to the defendant either at the defendant's work address if they are a sole trader, or the defendant's residential address. </li>
</ul>
</blockquote>
<p>So, it is really not that hard. However, if this proves too difficult, you can apply to the court for substituted service. Courts will generally allow any method where you can prove that the Statement of Claim came to the defendant’s attention. For example, service by Facebook has been acceptable.</p>

<blockquote>
<p>can the plaintiff file a motion (?) so that the defendant loses their rights to make an appeal of the judgment?</p>
</blockquote>
<p>There is no such motion. If the defendant does not appear in court whatsoever, he actually is precluding himself from presenting his arguments in an appellate (aka reviewing) court. In an appellate court parties can present only the arguments they advanced in lower courts.</p>
<p>It appears that your matter would result in a <em>default judgment</em> unless the defendant changes his mind and disputes your claim(s). To prevent the defendant from denying (in the appellate court) that you made reasonable attempts to serve papers upon him, be sure to file evidence of his refusal. This evidence not only will satisfy your burden of proof in a <em>motion for default judgment</em> (or the equivalent in your jurisdiction), but it would also be grounds for the court of appeals to dismiss the defendant's appeal.</p>

<p>The defendant’s problem is that you cannot just “refuse” to be served. You take your paperwork to the defendant’s home, turn on your phone camera, ring the doorbell, defendant opens. You try to hand over the papers, he refuses to take it. You say that you have court papers, he closes the door on you, you say”I’ll leave these papers on your door step”, and you do that. You delivered the papers, and you have proof.</p>
<p>It doesn’t matter how much he “refused”, the paperwork is delivered. As Dale says, the defendant can make it somewhat harder for you, but worst case you can ask your local court to deliver the papers.</p>
<p>If the defendant doesn’t read your paperwork and therefore doesn’t come to court, he puts himself in the worst possible legal position. He will lose the case by default. Worse, if you exaggerated your claims, he can’t contradict any of that. He can appeal against the judgement, but the appeal will be rejected.</p>
<p>On the other hand, if the defendant manages to disappear completely then you can’t serve him, and can’t take him to court. But in these cases they can’t “refuse”, so I assume that’s not part of the question.</p>
<p>Can you file something to prevent him from appealing the court decision? No. But the appeal will be rejected anyway, so there’s nothing you need to do or can do.</p>

<blockquote>
<p>If a defendant refuses to be served, can the plaintiff file a motion
(?) so that the defendant loses their rights to make an appeal of the
judgment?</p>
</blockquote>
<p>The question doesn't specify a jurisdiction. This answer would be true in U.S. law, and under the law of most common law jurisdictions, although, obviously, the Colorado specific details I provide by way of example are only applicable to the State of Colorado.</p>
<h1>Short Answer</h1>
<p>You don't lose your right to appeal if you refuse service and don't file a timely answer to the claim, but the grounds for appeal of a default judgment are virtually useless to you in the vast majority of cases, assuming that you haven't missed the deadline for filing an appeal.</p>
<p>Sometimes, however, you can file a motion in the trial court to set aside a default judgment, and there is a longer deadline for filing this kind of motion.</p>
<p>Both deadlines run from the date that the judgment is entered, however, and you will receive no notice of the entry of the judgment after your initial refusal of service.</p>
<p>Usually, the person suing you can strategically wait until those deadlines expire before trying to collect from you in order to make it very hard for you to set aside the judgment when they do take action to collect it. They may choose to do intentionally so if they think that you will not try to object to entry of judgment, because they think that you didn't realize that a judgment was entered against you.</p>
<h1>Long Answer</h1>
<h3>Service of Process Is Required</h3>
<p>To obtain a judgment against you, a person suing you has to serve you with process (usually a summons and complaint but other names are sometimes used) in a manner authorized by law, and then file proof of service with the court. A court isn't supposed to (and almost never does) enter judgment without either proof of service or an entry of appearance in the case by you (e.g. by filing papers in the court case or showing up to a hearing).</p>
<p>In Colorado, where I practice law, the main rule regarding what constitutes service of process is <a href="https://casetext.com/rule/colorado-court-rules/colorado-rules-of-civil-procedure/chapter-1-scope-of-rules-one-form-of-action-commencement-of-action-service-of-process-pleadings-motions-and-orders/rule-4-process" rel="nofollow noreferrer">Colorado Rule of Civil Procedure 4</a>. But there are exceptions to this rule that are also sufficient which are authorized by statute.</p>
<h3>Refusal of Service Is Ineffective.</h3>
<p>As another answer notes, refusing to be served when court papers are presented to you is an effective form of service of process. The court serving the papers gains jurisdiction over you whether or not you when process is delivered to you by any of the means authorized by court rule or statues, whether or not you accept the papers that are delivered to you. In Colorado, where I practice, refusal of service is governed by Colorado Rule of Civil Procedure 4(k), which says:</p>
<blockquote>
<p>If a person to be served refuses to accept a copy of the process,
service shall be sufficient if the person serving the process knows or
has reason to identify the person who refuses to be served, identifies
the documents being served, offers to deliver a copy of the documents
to the person who refuses to be served, and thereafter leaves a copy
in a conspicuous place.</p>
</blockquote>
<h3>Default Judgment</h3>
<p>If you are served with process (or refuse service), and a proof of service of process (usually in the form of an affidavit or declaration under penalty of perjury) is filed with the court, and you do not file a response in the court by the deadline for doing so, a default judgment will be entered against you.</p>
<p>Sometimes the default judgment will be entered only on the question of liability and a separate damages hearing, at which you have the right to appear if you learn about it before it is held, will be conducted.</p>
<p>Sometimes the default judgment will be entered on the question of liability and damages if the court can satisfy itself that it has the information it needs to do so in affidavits that have been presented to it.</p>
<p>Usually in simply contract cases alleging nonpayment of money owed, default judgment will be as to liability and damages, while in more complex cases, a damages hearing will often be held.</p>
<h3>Appeal of a Default Judgment</h3>
<p>The default judgment can be appealed, but the grounds upon which a judgment of any kind can be appealed are limited to those that can be discerned from the trial court record which are either preserved by you, or constitute &quot;plain error.&quot;</p>
<p>There are really only a few situations in which you could plausibly appeal a default judgment. Some of the most common would be as follows:</p>
<p>(1) the amount of damages awarded exceeds the amount claimed in the process that was served (this limitation applies only to default judgments and not to other judgments which may award more than originally sought following the filing of a response),</p>
<p>(2) no proof of service was filed to support the entry of default judgment,</p>
<p>(3) the deadline for a response to the process had not expired when the judgment was entered,</p>
<p>(4) the basis for the claim stated in the complaint so obviously didn't entitle the plaintiff to relief that the judge should have noticed it (e.g. the lawsuit alleges that Bob hit Fred in his car but the lawsuit seeks a judgment against Herman who isn't alleged to have any connection to the car accident in the complaint),</p>
<p>(5) the court didn't have jurisdiction to enter the judgment (e.g. the judgment was for $100,000 in a court whose jurisdiction is limited to cases of $25,000 or less), or</p>
<p>(6) You defaulted but a damages hearing at which you appeared was held and you assert on appeal that a reversible error was made by the judge in determining the correct amount of damages (e.g. by admitting inadmissible hearsay evidence over your timely and proper objection as the sole evidence of damages).</p>
<p>The deadline for an appeal is typically between two weeks and two months after the judgment is entered and no separate notice is given of the deadline to appeal. In Colorado, where I practice, in state courts of general jurisdiction (i.e. District Courts) the deadline is 49 days from entry of judgment (subject to exceptions that don't apply to default judgments), and in state courts of limited jurisdiction that handle smaller dollar claims (i.e. County Courts) the deadline is 14 days from entry of judgment (subject again to exceptions that don't apply to default judgments).</p>
<p>You cannot appeal on many other grounds. For example:</p>
<p>(1) a complex legal argument that their complaint didn't set forth legal grounds for relief,</p>
<p>(2) the argument that there complaint was factually unsupported,</p>
<p>(3) the argument that you could have asserted an affirmative defense that would bar their claim, even if the defense was obvious on the face of the complaint (e.g. the statute of limitations had run).</p>
<h3>Motions For Relief From Judgment</h3>
<p>Usually, however, if a default judgment is entered against you, you will file a motion for relief from judgment in the trial court, rather than filing an appeal. In Colorado, where I practice, this is governed by <a href="https://casetext.com/rule/colorado-court-rules/colorado-rules-of-civil-procedure/chapter-6-judgment/rule-60-relief-from-judgment-or-order" rel="nofollow noreferrer">Colorado Rule of Civil Procedure 60</a>. There is usually a time limit to seek relief from judgment on most grounds as well. In Colorado, this is 6 months from the date that judgment is entered (and you do not receive separate notice of entry of the judgment) for most grounds other than a lack of jurisdiction.</p>
<p>To set aside a default judgment in a motion for relief from judgment, the main arguments you can make are:</p>
<p>(1) The court lacked subject-matter jurisdiction to enter the kind of judgment it entered at all (e.g. a $100,000 judgment in a case not authorized by law to enter judgments in excess of $25,000, or a determination of title to property by a court not authorized by law to make that determination, or the case involved copyright infringement or patent infringement and was not brought in federal court),</p>
<p>(2) The proof of service of process filed with the court contains untrue statements (or statements insufficient to meet the requirements of the court rule), you weren't actually validly served with process, and you have a meritorious defense to the claim,</p>
<p>(3) You were served with process but missed the deadline for a response due to reasons that constitute excusable neglect (e.g. you were struck by a car shortly after being served and were in a coma for the next four weeks and missed the deadline as a result), and you have a meritorious defense to the claim,</p>
<p>(4) A bankruptcy stay of enforcement was in place when the process was served or judgment was entered, and the bankruptcy stay was not set aside,</p>
<p>(5) The judgment was set aside in a bankruptcy,</p>
<p>(6) You were in military service or incompetent or were under the age of eighteen at the time of service and the proper procedures for those situations were not followed, and you have a meritorious defense to the clam, or</p>
<p>(7) The defendant died before judgment was entered and the proper procedures for that situation weren't followed.</p>
<p>The court has a great deal of discretion to deny a claim for relief from judgment absent the clearest of evidence of lack of jurisdiction, lack of service of process, or excusable neglect. The standard for &quot;excusable neglect&quot;, in theory at least, is very high, and you must show basically that you missed the deadline for reasons that are not your fault or the fault of your lawyer, although in practice, some judges will be lenient.</p>
<p>If you prevail on your motion for relief from judgment, the court will vacate the judgment (i.e. undo it) and the case will proceed as if you had responded to the process served upon you by the deadline.</p>
<h1>Commentary</h1>
<p>It isn't at all uncommon for someone to have legal papers served upon them in a manner that is legally sufficient, and then not realize that this is happened because the person who was served with process didn't realize their significance, or didn't read them, or didn't feel like dealing with them until after the deadline for a response is filed. It isn't uncommon for the person served to forget that it even happened because it didn't seem important to them at the time or because they didn't want to deal with the possibility.</p>
<p>Often, they only realize that they should have responded when their property is being seized or their wages or bank accounts are being garnished. Once this happens, it is usually too late to appeal and the law can be very harsh.</p>
<p>In a small dollar case, like a credit card collection or eviction that is justified because you haven't paid the amounts owed, often you didn't have a sufficient defense anyway (although you might have reduce the dollar amount owed or secured some delay if you responded), and while it sucks, it was a survivable mistake.</p>
<p>In a big dollar case, failing to file a timely response and having a default judgment entered against you when you had a solid defense on the merits can be a life changing catastrophe that will usually force you into bankruptcy or ruin your life economically even if you aren't force into bankruptcy. <strong>The simple goof of ignoring some court papers can become the worst mistake of your life.</strong></p>
