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In order to avoid delay from any legal activity, this is where an Affidavit of Service becomes handy as this is used when a party involved lacks the necessary and important documents. With the help of this affidavit, anyone can prevent the opposing party from pretending they did not receive a given legal paper. To know more about the Affidavit of Service, continue reading this article and if you are looking for a template that you can use in order to file one, then you came to the right place! Download our Affidavit of Service templates that you can use anytime and anywhere.
28+ Sample Affidavit of Service
Affidavit of Service Templatedownload now
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What Is an Affidavit of Service?
An Affidavit of Service, which is also known as a Proof of Service or Return of Service, is a type of affidavit that relates to legal documents that are filed with a court as part of a legal proceeding. It is a sworn legal document that will state that a server delivered specified papers to a person, organization or business as requested by a party to a lawsuit. When a service of documents is to a group of people, like for example a club, business or organization, delivery must be addressed to the registered agent of the organization or business. When one party to a lawsuit decides to file a document with the court, that specific party is now legally required to provide a copy of the said document to the opposing party, and is called as serving the other party. An example would be, when a plaintiff files the initial complaint, a copy of this complaint must be provided to the defendant. And when the defendant files an answer to the complaint, a copy of the answer must also be provided to the plaintiff. This is where an Affidavit of Service becomes handy as this is used to be filed as proof that the document was provided to the other party.
Types of Service That an Affidavit Can Be Used
Services such as this can be made in several ways by the plaintiff and or the defendant. For service of a complaint, which typically begins with a lawsuit, the plaintiff must be able to serve the defendant in one of two ways:
Once the defendant is served and will file some form of response to the complaint that he or she received, both parties will now have their addresses and any other contact information on record with the court of law. Subsequent documents are then usually sent to the other party or their respective attorneys by email, which is also known as service by mail.
Five Tips on How to Create an Affidavit of Service
Making an affidavit of service may sound challenging and hard but don’t worry because in reality it actually isn’t! If you are having a hard time creating one, you can also check out our different types of affidavits listed above for you to use and just take note of all these tips in order to have the perfect template that you can submit in the court of law! Continue reading and follow the steps mentioned below to keep you guided:
1. Identify the elements of an Affidavit of Service
The affidavit of service must identify who is being served, the time, date and place where service may occur. Once the affidavit has been completed, it should be filed as soon as possible with the court, along with a copy of the papers that were served by the complaint. A simple affidavit of service will identify the following elements:
- Jurisdiction – The court that has the authority or upper hand to hear civil cases, and make judgements based on the information that are presented.
- Civil Lawsuit – A claim that is filed with a court which states that one person was been harmed or otherwise suffered a loss due to the actions that the other person did,
- Plaintiff – This refers to the person who files the lawsuit.
- Defendant – This refers to the person against whom the lawsuit was filed.
2. Identify the person who will deliver the papers
The person who will deliver the documents or papers is commonly known as the server or process server. A process server can be:
- A person appointed by the court who is tasked to serve court documents as required
- A person in which who is licensed to work as a process server
- A person hired by a party to the lawsuit to deliver court order documents on their behalf
For every service of process, the plaintiff or defendant will be required to pay a fee, and the cost of this service will be depending on how quickly you need the service and the ease or difficulty in locating the person to be served. When hiring a process server, you should compare rates from other server providers and select someone whose reputation is reliable and can be trusted to deliver documents as confidential as this.
3. Create a Title and Caption of the Affidavit
After identifying all elements and the server, you cannot serve the paper if you won’t title the affidavit, so the next thing that you should do and consider is to create a title for the affidavit. A caption should follow specifying the court name and location where the action will be filed, this should include the case reference that covers and include the case number and names of the parties that will be involved in the affidavit. As the initial part of this document, it is important and vital to ensure that all information included is accurate and correct, so you need to pay close attention to all details to avoid mistakes and to avoid further problems.
4. Describe the document’s served
In this section of the Affidavit of Service, it can be short and simple but it should be the facts. You may include details of the type of document being served to the recipient in order to properly identify what was involved in the exchange. In some cases, there are times that you can list more than one document. You should also ensure that all information about this is factual and correct to avoid any problems along the way.
5. Have it notarized by a notary public
In order to have your affidavit of service be legal in the eyes of law, it is very important to have it notarized by a notary public. Make sure that you get to sign the affidavit in the presence of a notary public or any witness or any other authorized official for authentication of the document. During this time, you should be 100% sure that all details in the document are correct and true before you will sign and everything is complete before you submit it to the notary. When everything is done, you can now send it to a process server, and can file the Affidavit of Service in court.
When can I say that a service affidavit is needed?
By that time the court requires a form of valid evidence in order to prove the delivery of legal documents to the other party, a service affidavit will be deemed required in order to prove that the exchange between the concerned parties had occurred. Common instances wherein a service affidavit is required may include the following:
- Delivery of summons
- Divorce papers
- Foreclosure notifications
Even if this isn’t mandatory, the service affidavit can still serve as a formal documentation and as a proof of service or delivery.
How long do I have to wait to file a service affidavit?
Five days prior to the scheduled court date, a service affidavit should be already filed and completed. Despite having the document prepared in time, if the affidavit is incomplete or if you fail to input the necessary information, it may not hold up in court.
Who is responsible for signing a service affidavit?
The person who will be authorized to sign a proof of delivery would actually depend on the type of affidavit of service in question. For example, in personal service cases, this type of affidavit requires the signature of the assigned process server, who can actually be a law enforcement officer or a private process server. Meanwhile, for affidavits of service in publication cases, an employee or authorized representative from the publication can sign the affidavit if they will be in charge.
What are the possible consequences of not having a service affidavit?
In an instant you fail to prove that a legal document has been set already to an opposing party, or if that affidavit is incomplete and or considered as unlawful, you will be facing the consequences that could not only threaten and denounce the proceeding but also subject you to severe legal and financial penalties mandated by the law. The worst that can happen is, as the process server, you may be serving jail time for something that could have been avoided in the first place if you just followed the right procedures before securing the affidavit.
How would I be able to prove that I wasn’t served by the required legal document?
If you’re the person that is intended to receive the legal document it may be the divorce papers, summons, or court orders, but if you somehow obtained a default judgment despite never being served the document, you may be able to review the pleadings together with a litigation attorney in order to prove that you were not present in order to claim the service. It is also best to check the details that were provided in the affidavit, since any false information that may be countered will likely work in your favor during this situation.
When these types of affidavits are filled with the court, this becomes proof that information that was stated in the affidavit are true and correct. Bare in mind that there are laws and court rules that will dictate how service must be made and what form of documentation will only be allowed to be used in order to verify the proper service. Understanding the laws that may apply to your case is very important, and if you have any questions or problems along the way, it is always better to seek legal advice from an attorney to help you with your problems and to avoid discrepancies.