Opening a Levy File with the Sheriff Requirement Changes in 2017

Writ of Execution-pg 11California AB 2211 was signed into law by the governor which will allow a registered process server “cause to be delivered” a letter, fees, and a writ to open a levy file with the sheriff.  The amendment removes the requirement that a registered process server open the file. The law becomes effective on January 1, 2017.

It does not change the law requiring that a registered process server to be the one serving the actual attachment or levy.

This will hopefully relieve process servers from waiting in line for 2 hours in Los Angeles just to open the levy file.  Although inferred, the amendment did not unequivocally address the closing of the file by filing the proofs of service within 5 court days after commencing the levy.

What that will do is free up time of the RPS and allow a messenger or in-house court runner to open the file instead.  I wonder how that might work, given the problems I have fixed at the counter when I have opened levy files, saving a return trip. I also wonder if this might result in more levies being served by non-registered process servers.

The bill also re-worded, and made a stronger statement about recovering costs for the registered process server’s fee for services of the writ.

The bill had no opposition.

The law, as amended, is posted here.

Gated Community Access for Service of Process Expanded

California SB 1431 has been signed by the governor amending CCP § 415.21, effective January 1, 2017.Gated Community Guard

It would require an investigator who is employed by an office of the Attorney General, a county counsel, a city attorney, a district attorney, or a public defender, upon the display of proper identification, to be granted access to a gated community for the sole purpose of performing lawful service of process or service of a subpoena.

The full text of the bill is posted here.

We posted Blog comments last September when an amendment to this law removed the requirement that the server identify the name of the defendant or witness to be served.

This law was initially passed in the 1993 as a response to the holding in a Court of Appeal decision which validated a substituted service on a security guard at a gated community.  See Bein v. Brechtel-Jochim Group, Inc., 6 Cal.App.4th 1387, 8 Cal.Rptr. 351 (1992).

Service in Private Houses

This is a question sent to me privately. I thought I might start the discussion.


I’m concerned with the rising requests for service on UDS [unlawful detainers] at a private single family dwelling that rooms are being rented out & said occupants of these rented rooms are being evicted.  In particular our right as process servers to enter said residence..


Follow a parallel discussion on the Process Server Group Facebook page.

Forms Committee Report – June, 2016 – CALSPro

Forms Committee Report

June 17, 2016

CALSPro Board Meeting, 6/25/16

The California Judicial Council (CJC) will be revising two Earnings Withholding Order forms, effective July 1, 2016.

The change reflects a new formula for the employer to calculate the disposable income of low-income earners, and will reference a URL with an online calculator for the proper amount to withhold. The form will be available for use on the CJC website when it goes into effect in July.

The Current Dollar Amounts Exempt from the Enforcement of Judgments form changed effective April 1, 2016.


7/1/16 Update:  Below are links to the newly revised forms, effective 7/1/16

Earnings Withholding Order

Earnings Withholding Order for Elder and Dependent Adult Financial Abuse


Tony Klein

New Law Allowing an RPS to Renew a Registration Creates Legal Conflict

The Registered Process Server Act was amended, effective January 1, 2016, allowing a renewing registered process server to be issued the same registration number if there has not been a 3 or more year lapse of the period of registration. (B&P § 22355).

B&P § 22355

(a) The county clerk shall maintain a register of process servers and assign a number and issue an identification card to each process server. The county clerk shall issue a temporary identification card, for no additional fee, to applicants who are required to submit Request for Live Scan forms for background checks to the Federal Bureau of Investigation and the Department of Justice. This card shall be valid for 120 days. If clearance is received from the Federal Bureau of Investigation and the Department of Justice within 120 days, the county clerk shall immediately issue a permanent identification card to the applicant. Upon request of the applicant, the permanent identification card shall be mailed to the applicant at his or her address of record. Upon renewal of a certificate of registration, the same number shall be assigned, provided that the applicant is renewing registration in the same county in which he or she was previously registered and there is no lapse of three or more years in the period of registration.

 

(b) The temporary and permanent identification cards shall be not less than 31/4 inches by 2 inches and shall contain at the top the title, “Registered Process Server,” followed by the registrant’s name, address, registration number, date of expiration, and county of registration. In the case of a natural person, it shall also contain a photograph of the registrant in the lower left corner. The identification card for a partnership or corporation registration shall be issued in the name of the partnership or corporation, and shall not contain a photograph.

 

The 2016 amendment created a conflict with B&P § 22351 regarding the fingerprinting requirement because the County Clerk is mandated in the statute to notify the Department of Justice upon lapse in the registration that the subsequent arrest notification is no longer needed.

 B&P Code § 22351.5

(a) At the time of filing an initial certificate of registration or renewing a certificate of registration that has lapsed, the registrant shall also submit a completed Request for Live Scan form confirming fingerprint submission to the Department of Justice and the Federal Bureau of Investigation, in order to verify that the registrant has not been convicted of a felony. The clerk shall utilize the Subsequent Arrest Notification Contract provided by the Department of Justice for notifications subsequent to the initial certificate of registration.

 

(b) If, after receiving the results of the Request for Live Scan, the clerk is advised that the registrant has been convicted of a felony, the presiding judge of the superior court of the county in which the certificate of registration is maintained is authorized to review the criminal record and, unless the registrant is able to produce a copy of a certificate of rehabilitation, expungement, or pardon, as specified in paragraph (2) of subdivision (a) of Section 22351, notify the registrant that the registration is revoked. An order to show cause for contempt may be issued and served upon any person who fails to surrender a registered process server identification card after a notice of revocation.

 

B&P Code § 22351.5

  • Language in section directs the County Clerk to notify the DOJ after the RPS is no longer eligible for registration
  • Before 2016, that date was the day after the registration lapsed
  • Language was placed into the statute so that County Clerk complied with Penal Code 11105.2(d)

Penal Code § 11105.2(d)

Any entity that submits the fingerprints of applicants for licensing, employment, certification, or approval to the Department of Justice for the purpose of establishing a record of the applicant to receive notification of subsequent state or federal arrests or dispositions shall immediately notify the department when the employment of the applicant is terminated, when the applicant’s license or certificate is revoked, when the applicant may no longer renew or reinstate the license or certificate, or when a relative caregiver’s or nonrelative extended family member’s approval is terminated. The Department of Justice shall terminate state or federal subsequent notification on any applicant upon the request of the licensing, employment, certifying, or approving authority.

  • The County Clerk was mandated then to give notice to the DOJ terminating subsequent arrest notification after the registration lapsed, resulting in a gap which required another fingerprint submission.
  • Penal Code § 11105.2(d) only requires notification when the applicant may no longer renew or reinstate the license or certificate
  • DOJ does not require notification after the date of the lapse because the applicant is still eligible for renewal for 3 years after that date
  • This presents an unnecessary burden for renewing process servers who must be re fingerprinted when they renew their registration when this 3 year window

New York Traverse Hearings and Process Servers

A recent blog post by Robert J. Nahoum, entitled What is a Traverse Hearing in a Debt Collection Case? he describes what happens during a traverse hearing under New York law. California refers to this analogous procedure as a motion to quash service.

What is also interesting is a summary of what records NY process servers must keep to record their attempts and services, and how onerous it is now to be a process server there.  A NYC process server must maintain the following, including, I am told, a GPS capture of the attempts and services for 7 years in sequential electronic format, which is subject to audit:

(a) the title of the action or a reasonable abbreviation thereof;

(b) the name of the person served, if known;

(c) the date and approximate time service was effected;

(d) the address where service was effected;

(e) the nature of the papers served;

(f) the court in which the action has been commenced;

(g) the index number of the action, if known;

(h) if service is effectuated [by posting], a description of the color of the door to which the summons is affixed;

(i) the process serving agency from whom the process served was received, if any;

(j) type of service effected whether personal, substituted or conspicuous;

(k) if service is effected [personally or by delivery to another,] a description, including, but not limited to sex, color of skin, hair color, approximate age, height and weight and other identifying features;

(l) if service is effected [by posting and mailing], the record shall also include the dates, addresses and time of attempted service pursuant to subdivision one, two or three of such section;

(m) if the process server files an affidavit of service with the court, his record shall include the date of such filing.”

If a traverse hearing is initiated, the plaintiff carries the burden of proof that the service was effected properly.

Several years ago California added Evidence Code sec. 647 which gave a proof of service signed by a registered process server rebuttable presumption status, shifting the burden of proving evidence of the service away from the plaintiff, requiring the defendant to show that they were not properly served.

The court of appeal reaffirmed the validity of that presumption in Palm Properties Investments, LLC v. Yadegar, 194 Cal.App.4th 1419 (2011). [Summary of decision]

Uniform Business Organizations Code

Idaho and Washington have adopted the Uniform Business Organizations Code (UBOC Hub). This uniform law was approved by the National Conference of Commissioners on Uniform State Laws (NCCUSL) , and refers to it as a “Hub”.

It harmonizes the language of all of the uniform unincorporated entity acts (Uniform Partnership Act, Uniform Limited Partnership Act, Uniform Limited Liability Company Act, Model Entity Transactions Act, Model Registered Agents Act, Uniform Limited Cooperative Association Act, Uniform Unincorporated Nonprofit Association Act, and Uniform Statutory Trust Entity Act).

The uniform law is presented to the various state legislatures that may adopt it verbatim, modify it and adopt various aspects of it, or reject it and make no changes to the law.

Relevant for process servers is are references to the section dealing with service of process, notice, or demand to a business entity. Both Idaho and Washington have included this subsection in their respective laws.

SECTION 13. SERVICE OF PROCESS, NOTICE, OR DEMAND ON ENTITY.
(a) A represented entity may be served with any process, notice, or demand required or permitted by law by serving its registered agent.
(b) If a represented entity ceases to have a registered agent, or if its registered agent cannot with reasonable diligence be served, the entity may be served by registered or certified mail, return receipt requested, or by similar commercial delivery service, addressed to the entity at the entity’s principal office. The address of the principal office of a domestic filing entity, domestic limited liability partnership, or registered foreign entity must be as shown in the entity’s most recent [annual] [biennial] report filed by the [Secretary of State]. Service is effected under this subsection on the earliest of:
(1) the date the entity receives the mail or delivery by the commercial delivery service;
(2) the date shown on the return receipt, if signed by the entity; or
(3) five days after its deposit with the United States Postal Service or commercial
(c) If process, notice, or demand cannot be served on an entity pursuant to subsection (a) or (b), service may be made by handing a copy to the individual in charge of any regular place of business or activity of the entity if the individual served is not a plaintiff in the action.
(d) Service of process, notice, or demand on a registered agent must be in a written record, but service may be made on a commercial registered agent in other forms, and subject to such requirements, as the agent has stated in its listing under Section 6 that it will accept.
(e) Service of process, notice, or demand may be made by other means under law other than this [act].

Some process servers are concerned with line (e) in the law which obliquely references alternative manners of service, which may contemplate electronic service.

The uniform law references service by other means “under law other than this”, meaning adoption of the UBOC Hub would not trigger authority to serve original process electronically. It would be another law, perhaps one introduced contemporaneously that would do so.

Another notable aspect to the UBOC Hub is the elimination of the option to serve the Secretary of State in the event the agent and officers of the business entity could not be found. The UBOC Hub suggests elimination of service on the Secretary of State (SOS), and that service by certified mail directly to the agent or officer at the address listed in the latest filing is no better or worse that having the SOS do it.

Under California law, for instance, the plaintiff must apply for a court order allowing service in this situation to be made by delivering 2 copies with a $50 fee to the SOS. Once the SOS receives the documents they mail one to the agent’s address on file. Given that a process server already attempted service at what was probably a vacant address and couldn’t personally serve it there, and submitted a supporting declaration regarding the attempt to the court to get the order, it seems counter-intuitive the service in this manner would give notice to the defendant.

One commentator opined that “some states may want to keep th[e] requirement of service on the SOS for the sake of tradition or legal culture of that state.”[1]

________________________________________

[1] Articles I and II of the Harmonized Uniform Business Organization Code (the Hub and META), Garth B. Jacobson, posted at http://www.americanbar.org/publications/blt/2015/04/01_jacobson.html, last visited on 12/6/15

Access to Gated Community Law Change – CCP § 415.21

In 2015, the law for service of a defendant or witness at a gated community changed.  A process server no longer needs to identify the person to be served.

This is a welcome change, given that policies at gated communities restrict access to servers, and frustrate service.

Here is the change:

Amendment to CCP § 415.21

CCP § 415.21 Access to Gated Community to Serve Process or Subpoena
(a) Notwithstanding any other law, any person shall be granted access to a gated
community for a reasonable period of time for the sole purpose of performing
lawful service of process or service of a subpoena, upon identifying to the guard
the person or persons to be served, and upon displaying a current driver’s license
or other identification, and one of the following:
(1) A badge or other confirmation that the individual is acting in his or her
capacity as a representative of a county sheriff or marshal.
(2) Evidence of current registration as a process server pursuant to Chapter 16
(commencing with Section 22350) of Division 8 of the Business and Professions
Code or of licensure as a private investigator pursuant to Chapter 11.3
(commencing with Section 7512) of Division 3 of the Business and Professions
Code.
(b) This section shall only apply to a gated community that is staffed at the time
service of process is attempted by a guard or other security personnel assigned to
control access to the community.


See post discussing an amendment to this law, effective in 2017.


Changes to Debt Collection Law

9/14/15 Update.

The governor signed both of these bills and they will become effective on July 1, 2016.

The new formula will result in a change to the Earning Withholding Order form in an effort to try to explain this to an employer withholding wages to comply with the garnishment.


 

Two California senate bills will affect the process of consumer debt collections providing relief to judgment debtors.

SB 501 amends CCP § 706.050 and changes the formula for calculating the percentage of disposable income subject to a wage garnishment, giving some relief to low income judgment debtors. Under current law, a wage garnishment is a continuing levy that orders the employer to withhold 25% of the employee’s disposable income. This change will limit that amount to an amount not to exceed the lesser of 25% of the employee’s disposable income, or 50% of an amount 40 times the local or state minimum wage. In 2016, the state minimum wage increases to $10 per hour, and local cities may be higher.

Quoting from the Assembly Legislative Analysis, “[a]ccording to the author, to illustrate operation of the revised formula, a worker living in a city paying the state minimum wage who earns $25,000 per year, a 10% garnishment rate would apply…” This lower cap on the garnishment amount will only apply to those making minimum wage, with graduated multipliers for above minimum wage.  Those making twice minimum wage will continue to cap out at 25%.

This law would be operative on July 1, 2016, and would be repealed on January 1, 2017 unless the legislature extends it.

SB 641 amends the Fair Debt Buying Practices Act (FDBPA) affecting consumer debts that were sold or resold after January 1, 2014, and adds a new section, Civil Code § 1788.61.

Under current law, a judgment debtor may file a notice of motion and motion to set aside a default or default judgment and for leave to defend an action relating to the debt up to 2 years after a default judgment is entered. This amendment would allow a judgment debtor of a sold or re-sold consumer debt up to 6 years after that date, or 180 days after actual notice of the action.

There is a special provision for those victims of identity theft.

The judgment debtor who files the motion must also include “an affidavit stating under oath that the person’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect.”

Further, “[e]ither party may introduce, and the court may consider, evidence in support of its motion or opposition, including evidence relating to the process server who appears on the proof of service of the summons and complaint.”

What this means for a process server is unclear. “Evidence relating to the process server” might mean evidence of the service of an action for a sold or re-sold consumer debt, such as server’s service instructions, notes, photos, GPS tracking, evidence of evasion, attempts, etc. All would relate to an effort to defend the service, and or attack the defendant’s avoidance of service, or the service itself.
If that is what “evidence relating to the process server” means, it may require record retention of the server’s notes for at least 6 years, or 180 days after actual notice of the action – an unknown period of time.

For instance, if a judgment is entered in 2016, and 8 years later the plaintiff serves a wage garnishment or deposit account levy, the judgment debtor may file a motion 180 days after actual notice of the action.

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