An affidavit of service, or proof of service, is a sworn statement that a designated process server has served legal documents to a party in a lawsuit. This proves the opposing party has been formally notified, a crucial step in court proceedings to ensure fairness.
Notarization verifies the service and the delivery and supports the integrity of the court process.
When is an Affidavit of Service Needed?
An Affidavit of Service is needed to confirm service of the following documents.
- Summons: Orders an individual to appear in court.
- Complaints: Filed by the plaintiff against the defendant.
- Answers: Filed by the defendant in response to the plaintiff’s complaint.
- Cross-complaints: Filed by a defendant claiming harm caused by the plaintiff.
- Foreclosure Notices: Notify a property owner of default and imminent foreclosure.
- Motions: Requests for specific judicial actions (e.g., motion to dismiss).
- Orders: Judge’s decisions impacting the case (e.g., custody order).
Consequences of Not Having an Affidavit of Service
Failing to provide a complete affidavit of service can result in legal consequences, such as:
- Case Dismissal: Dismissal due to improper notification.
- Judgment Against Them: Risk of a default judgment in favor of the opposing party.
- Contempt of Court: Potential fines or jail time for failing to fulfill court obligations.
- Loss of Rights: Possible forfeiture of property, custody rights, and other damages.
- Delayed Proceedings: Suspension or postponement of legal proceedings.
How to Create an Affidavit of Service
Follow the steps below if you want to know how to fill out an affidavit of service:
Step 1 – Fill in Affiant Details
You must provide the name and address of the affiant.
Step 2 – Include Information on the Service
To effectively serve legal documents and streamline court proceedings, ensure that your affidavit of service includes the following details:
- Case Reference: Names of the lawsuit parties and case number.
- Court: Where the action is filed.
- Defendant: The individual the lawsuit is against.
- Plaintiff: The individual filing the lawsuit.
- Server: Full legal name of the person delivering the documents.
- Documents: List of papers served (e.g., subpoena, complaint, summons).
- When: Date and time of delivery.
- Where: Full address where service occurred.
- Oath: Confirmation that an appropriate party administered oaths.
Step 3 – Notarize the Document
Provide the county and state where the affidavit was notarized. You should always notarize affidavits. However, you can fill in this information manually at a later time.
Common Ways to Serve
- Personal Service: Direct delivery to the individual.
- Substituted Service: Leaving with someone at their residence or business.
- Mail Service: Sending via certified or registered mail.
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Publication: Notifying through a newspaper if the recipient is unreachable.
Electronic Service: Using email or other electronic methods if permitted.
If served by mail the user should be sure to include proof of service, as required by their jurisdiction, along with this affidavit when they file it. Proof of service for mail is typically a copy of a USPS certified, return receipt.
Sample
Below is a sample affidavit of service form available in PDF or Word format.
Frequently Asked Questions
Does an Affidavit of Service Need to Be Notarized?
Yes, an affidavit of service needs to be notarized. Like all affidavits, notarization is required to ensure that the individual is attesting information without coercion or undue influence and who they say they are.
What Is the Difference Between a Certificate of Service and an Affidavit of Service?
There is no difference between a certificate of service and an affidavit of service other than the name. Both documents achieve the same goal as certifying that you have served a document upon somebody. The terms are interchangeable, and it is often a matter of preference which one is used in a given situation.