Forms Committee Report – June, 2016 – CALSPro

CALSPro, Forms, Revised Forms

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

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

The Registered Process Server Act

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

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New York Traverse Hearings and Process Servers

CA Service Laws, Evidence code sec. 647, motion to quash service, proof of service, rebuttable presumption, Service of Summons, Traverse hearing

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]

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Uniform Business Organizations Code

eservice, 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

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Access to Gated Community Law Change – CCP § 415.21

CA Service Laws, gated community, security guard, Service of Summons

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.

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Changes to Debt Collection Law

CA Service Laws

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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New Prejudgment Claim of Right to Possession form

Uncategorized

The Prejudgment Claim of Right to Possession form has been revised to conform to a change in the law governing the service of unknown occupants in an unlawful detainer action. Although the law codified the form as of January 1, 2015, it was only published by the California Judicial Council on June 15, 2015.

The change in the law, CCP § 415.46, requires an unnamed occupant claiming a right to possession to use the form Claim of Right to Possession and Notice of Hearing to file if they were not served with a Prejudgment Claim of Right to Possession.

By inference, process servers now should be serving the new Prejudgment Claim form on the unnamed occupant(s) so they can use it for filing a claim.

The new form reconciles prior amendments to the prejudgment claim procedure further assuring notice to unnamed occupants of a foreclosed property.

The forms are linked below:

Prejudgment Claim of Right to Possession

Claim of Right to Possession and Notice of Hearing

My CALSPro Forms Committee Report references other changes to the forms that may affect California process servers.

Back to Process Server Institute home

 

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Criminal Liability for Preparing False Proofs of Service

proof of service
Criminal Liability for Preparing False Proofs of Service

By Tony Klein
11/4/09
Revised on 6/11/15

In 2007, I wrote an article relating to a number of incidents involving the preparation and filing of a proper proof of service, entitled “What is a Proper Proof of Service?” That article can be found here: https://psinstitute.com/whatisaproperproofofservice/

Since then, this issue has continued to vex process servers, and has led to a number of anecdotal incidents that have resulted in criminal prosecutions.

In 2008 a process server was charged and in Siskiyou County, California for falsifying proofs of service. He was charged with Identify Theft, Forgery, False Personation, Preparing False Evidence, and Uttering (Filing) a False/Forged Instrument. The process server pleaded nolo contende, and was sentenced to 10 days in jail. He did so under house arrest, and filed proof of completion. See Docket Sheet and Complaint

In another case, a Boston process serving agency, Stokes & Levin, was sued by a witness who was never served with a subpoena. The process server who purportedly served the witness had stopped working for the agency several months earlier, and his signature had been placed on the proof of service with a rubber stamp.

The suit was brought after the witness, a former president of a Bermuda bank, failed to attend an administrative hearing. News of his failure to honor the subpoena resulted in damage to his reputation, and cost him two positions on the board of directors of two companies. The process serving agency defaulted in the civil suit, and the judgment was rendered in the amount of $3.3 million. Subsequently, the Massachusetts Attorney General petitioned the court to prohibit Stokes & Levin from acting as a process server, advertising legal process services, or accepting money for serving legal papers, and forming another legal process serving business or operate under another name. The court granted the Petition and entered an Order accordingly.

In another astounding case, in April, 2009, American Legal Process (ALP) of Lynbrook, New York was accused by the New York Attorney General of falsifying thousands of affidavits of service, describing it as a “massive fraud scheme.” The AG has also petitioned the court to issue show cause orders to the 38 lawyers and law firms who retained APL, alleging that they knew, or should have known, that the services were invalid. OSC and Petition

The New York court has vacated 100,000 default judgments for cases served by ALP, and the defendants in those cases are beginning to file their own lawsuits for the damages they have incurred.

The following is a short overview of what a proof of service is, and what it represents to the court. Additionally, I will describe the crimes that occur when a proof of service is improperly prepared, signed, and filed.

Once a summons is served, a proof of service is signed by the process server attesting to the date, time, and manner of service. Some states allow for that declaration to be made under penalty of perjury, while others require the process server to swear to the facts before a Notary Public. The Notary Public then signs a jurat, a short statement that the person swore to the truthfulness of the statement and, in most cases, verifying the process server’s identity. That notarial act is memorialized in a notary journal of the notary who is a commissioned public official.

A “return” of service is not necessarily equated with “proof of service”, but contemplates that the return will be made either to the court or a judge.

Upon filing, the court treats the proof of service as evidence. It is not conclusive evidence that service was made, but rather “prima facie evidence” of the facts stated therein. Prima facie is a Latin term meaning “at first sight; on the face of it; so far as can be judged from the first disclosure; a fact presumed to be true; etc.” (Black’s Law Dictionary)

California provides for an enhanced status of a proof of service signed by a California Registered Process. California Evidence Code § 647 gives a proof of service signed by a Registered Process “rebuttable presumption status”, statutorily shifting the burden of proof to a defendant to prove that he or she was not served.

The appellate court recently address this issue in Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419.

So what crimes are being committed when a proof of service is falsified or signed on behalf of another?

Using the Siskiyou County case as an example will help illustrate these crimes charged. Although the common law and statutory crimes described may be referred to by another name in other jurisdictions, it can provide some insight on how a criminal prosecutor might view these acts.

The facts stated in the felony complaint are as follows: The defendant, a San Jose process server, forged the signature of another process server who had apparently served one defendant in a case pending in Siskiyou County, 300 miles away. That proof of service was then filed with the Siskiyou County Superior Court.

The defendant committed Forgery, a violation of California Penal Code (PC) 470(d), by his willfully and unlawfully making, altering, forging, counterfeiting, and signing the name of another, namely the process server, and did utter, publish, pass, and attempt to pass as true and genuine the document, knowing that the document was false.

The defendant committed False Personation and violated PC § 539(2) when he unlawfully and falsely personated the process server in a private and official capacity and in such assumed the character and “verified, published, acknowledged and proved in the name” of the process server, a written instrument, with the intent that the same be recorded, delivered and used as true a proof of service that was to be filed.

The defendant committed Identity Theft and violated PC § 530.5 willfully and unlawfully obtained the personal identifying information of the process server and used it for unlawful purpose, by using the information on a proof of service.

The defendant Prepared False Documentary Evidence, a violation of PC § 134 by forging the signature of the process server, under penalty of perjury, with the intent to produce it, and to allow it to be produced for a fraudulent and deceitful purposes, as genuine and true, and allowing it to be filed with the court.

The defendant was charged with Filing a False or Forged Instrument with the court under California PC § 115(c) because he willfully, unlawfully, and knowingly procured and offered a false and forged instrument, to wit, a proof of service of summons, and filed, or caused to be filed, said document with the court.

Perjury is defined as the willful assertion as a matter of fact, opinion, belief, or knowledge of a material issue, known to be wrong, in a court or by affidavit. This crime was not charged in this case, so one could assume that the facts in the forged document were likely accurate. It is noteworthy that the prosecution went forward even though the facts in the proof of service were accurate.

California proofs of service are made under penalty of perjury. When a notarized affidavit is signed, as they were in the recent New York case, the notarized affidavit provides another layer of protection that the document is authentic. Hypothetically, if this one proof of service was signed as a notarized affidavit, and the Notary Public knew that it was not the person who actually signed it, the false notarization would implicate the notary public as well. A false statement made by the affiant, sworn to before a Notary Public as a public official, is a perjury.

Unfortunately, the process server and the process serving agency, and perhaps a notary public may be involved in the same set of crimes, especially when the company simply operates a business that routinely sign proofs of behalf of their process servers, and the process servers acquiesce to the practice. If that occurs, a criminal conspiracy could be charged against all of them, and could result in accomplice liability. This is the exception, but is not unheard of.

 

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