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.

New Prejudgment Claim of Right to Possession form

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.


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Criminal Liability for Preparing False Proofs 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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What is a Proper Proof of Service?

By Tony Klein, Reprinted from the May 2007 Edition of PSI Newsletter

Failure to Prove Service Results in Dismissal of $7.7 million Case

In April, 2007 I received a memo, indirectly, from a process server that referenced a $7.7 million case that was dismissed because an attorney service signed a proof of service instead of the process server.

Attached to that memo was a copy of an order from a US District Court Judge in Central District who set aside a $7.7 million default judgment because the process server stated at the hearing that a) the signature on the proof of service was not hers, and b) she could not provide accurate details because she did not have her “work order” containing her service notes. The judge also ordered the Plaintiff to notify the court as to who signed the invalid proof of service for possible criminal prosecution for perjury and forgery.

Before rendering its decision to dismiss the case, the court attempted to determine whether proper service had been made. A proof of service signed on behalf of another is not the “best evidence” to prove service. It was later learned that the forwarding service had indeed signed the proof of service, but apparently at the direction and authorization of the company who hired or contracted with the person who actually served the lawsuit.

Notwithstanding the invalidly signed proof of service, the court sought to ascertain whether service had been made through other evidence. It attempted to do so through the process server’s testimony and business records. Unfortunately, the process server testified that she did not have the work order, her notes, or any other record prepared at or near the date of the service. Because the plaintiff could not support the service efforts, the judgment was set aside.

A subsequent $7.7 million complaint was filed in US District Court in San Diego. Sholodge, Inc., the plaintiff in the previous two cases filed a third suit against the forwarding agency, APEX Attorney Services, Incorporated, and the servicing agency, XL Professional Services, Inc., alleging negligence, breach of contract, and negligent and intentional misrepresentation. An answer was filed by APEX with an affirmative defense that XL gave them permission to sign. As of April 27, 2007, XL was in default and had yet to file any response.

Other Illustrated Cases

In the 1970s New York City saw a number of investigations into “sewer services”. The term is used colloquially for when a server tosses the legal documents in the sewer instead of serving them, and then claims that they were served. The FBI seized state court records to create databases of affidavits of service. Some affidavits of service showed that one server purportedly served papers in four boroughs at the same time. Process servers where jailed for this. A local process serving licensing law was enacted, and required that a sequential service journal be maintained under threat of fine or revocation.

A few years ago ABC Legal was requested to serve documents for Lassen County (California) – Department of Child Support Services. One such defendant was purportedly served in Kansas, and a forged proof of service was provided to the court. The defendant found out about it later when his wages were garnished, tax refunds intercepted, and he was denied a loan to buy a house. A default judgment had been entered against him.

When the Lassen County DA refused his request to set aside the judgment, he was forced hire a lawyer and filed a motion to set it aside. He then sued ABC for his legal costs, the damages he incurred in tarnishing his credit, and for exemplary damages due to the forged proof of service.

ABC filed a cross-complaint against Kansas Investigative Services and the process server. They were demurred out of the case after the process server provided a written record attesting that he did not serve the defendant.

The case ultimately settled but its affects are still felt. Although fax filings are permitted in California, Lassen County Superior Court will no longer file anything other than an originally signed proof of service.

A more recent case of fraudulent affidavits came to light in the Maryland.

Kevin Patrick Fitzgerald of Patrick Investigations was sentenced to three years of a ten year sentence, $20,000 in fines and five years of supervision on an earlier conviction for conspiracy, perjury, subornation of perjury and obstruction of justice in connection with a scheme to defraud the District Court of Maryland in Towson. Fitzgerald was convicted of creating and filing hundreds of fraudulent affidavits of service that did not occur. When the defendants failed to show for the court dates, default judgments were obtained.

Quoting from a Maryland Attorney General press release, ”Judge Finifter characterized the Defendant’s actions as, “a major, massive scheme to defraud the District Court, consumers and his own client, . . . resulting in a substantial interference with the administration of justice.”

Impact on Our Profession

Events such as these bring notoriety to the process serving industry and cast a negative image upon our profession. Fortunately, these practices are the exception rather than the rule. Openly discussing them allows us to bring into focus the importance of the professional process server’s responsibility for providing proper proof of service, and maintaining proper process serving records.

The proof of service is a process server’s work product. A valid proof of service is what we receive compensation for. It is the final act in a series of events that our clients and the courts depend upon. When the integrity of the proof of service is compromised, the efforts leading up to it are likewise compromised. Without proper service, and proof thereof, what follows in any civil case may be jeopardized as illustrated by these cases.

An Introspective Look at Our Business Practices

Attorney service businesses have evolved into multi-million dollar enterprises.  We all take advantage of technologies that make our businesses more efficient. Those efficiencies may involve a fax machine and a cell phone. For some that’s where it stops. There are some process servers who still type proofs of service, and others who have never typed one. Others are quickly out-pacing those and are developing intra and interstate consortiums and partnerships that transfer documents electronically between themselves, and the courts, and have their servers inputting real time service information from their BlackBerry enabled phones.

The technology has changed, but the manner of service of process, and providing proof of service, has remained relatively unchanged. The courts continue to rely on personal delivery of paper documents. When a dispute arises over whether service was proper, they rely on a document signed by the server, much the same way they have since our country began.

What has changed is the expectation of our clients. Large law firms, equally wired to the world as the more technologically advanced process serving agencies, expect immediate responses. When they send a “hair-on-fire” assignment to a process server, they need continuing status reports. They want the assignments commenced immediately and want proofs of service just as quickly. It does not matter that a subpoena, set for a month and a half from now; is sent out on Thursday evening to be served that same evening on the other side of the state. They want proof of service with a wet signature on their desk by Friday at 9:30 AM. If it is not there, they will be on the phone asking for one.

Maybe it’s a senior partner in a firm who screams at everyone within shouting distance who wants it. Maybe it is the client of the law firm with a short timeline. Maybe someone in the firm sat on the assignment for a week, and now needs rapid action to save his job. Regardless of the reasons, these ever shortening timelines, fueled in part by the instant communication, affect our businesses.

It is within the context of these time expectations that that errors in judgment can be made and shortcuts taken to have the proof of service back to the client, or the court, quickly. Signing the name of a process server, with or without that person’s consent, is a shortcut that is not only improper but illegal as well. This illegality would be compounded should a person sign on behalf of a process server and that signature is attested to by a notary as a sworn statement of that process server. Obviously, these acts must be avoided.

The need for speed is not limited to large firms with high profile or multi-million dollar cases. It happens with large government contract assignments as well. Depending on the jurisdiction, and the negotiated rates, these contracts regularly run well into six figures per year. Since they involve hundreds of process serving assignments, aggressive process serving agencies submit low ball bids that drives the “per service” cost down considerably. These contracts are granted to the lowest, or in many cases the most experienced bidder, and are “adhesion contracts,” a term generally meaning a one-sided “take it or leave it basis.” It is not uncommon to see a requirement for daily pickups, weekly status, and proof of service return within 5 days of service, and a 20% discount for late responses.

What Lessons Can Be Learned From These Incidents and Our Experiences?

First, “sewer” or fraudulent service of process is illegal and should not be countenanced by anyone. Knowledge of such events and failure to report them, or take action to prevent them, implicates all involved. As professionals, we have an obligation to conduct ourselves ethically and to insist that others in our profession do the same.

As a process server, and as an attorney service operator, we owe it to the courts and our clients to provide professional service. We also owe a duty to the public. Our professionalism, our word and our talents are necessary. They are all interlinked, and if any of those fail, it all crumbles. The public is affected, our clients’ cases are affected, and the impact on the court can be substantial.

Second, it is the process server’s responsibility to sign his or her own proof of service. Do not allow anyone to sign it for you no matter what pressure is exerted upon you. Service is the hard part. Providing proof of service is equally challenging, and is as important to the court as the service is. It is the culmination of the entire series of events. If a notarized affidavit is sign by someone other than the actual affiant, it’s a crime for the signer and the notary public. Every process server knows that, or should know that.

A proof of service is challenging because it must be prepared properly and accurately. It must be signed and attested to. Process servers are busy, attorney service operators are busy, and coordinating schedules for signatures can be the ultimate challenge. Once completed, shipping, delivery, or filing the proof takes additional time and effort. A nagging or demanding client for a late proof is not only annoying but a significant impact to any office. Forwarding the proof of service is the final act of the services that we provide, and it holds up the bill. Few clients will pay a bill for service without the proof of service.

Third, maintain records.

Maintaining Records

Document anything relevant or remotely relevant. The attorney service is responsible for retaining documentation, e-mails, text messages, notes of phone calls, especially when the original instructions change.

Evidence of any service assignment should be reflected in documentation. An attorney service and process server creates that evidence starting when the assignment is received. Some states, such as Texas and Florida, require the server to state when he or she received the process for service.

The attorney service agency receives evidence when first contact is made. It might be a phone message, a fax or e-mail. Keeping a record of that, such as a fax cover sheet or e-mail header, clock-stamps the date and time how and when the assignment was received, and approximates when the service was dispatched. Server’s notes and office entries preserve the record and memory and create evidence of service.

Notes of attempted contact can be part of that evidence. A record of a phone call to the defendant, even if there is no answer, constitutes evidence of due diligence.  Saving a company business card or building security sticker, or signing a security guard’s for entry into a building can evidence attempted service   The observations of the server – the cars parked around the house, the date and time of attempts at service, names, descriptions, and conversations, and manner of service  – all are also evidence of service. Proof of service memorializes of act of the service.  Without the server signing a proof of service based upon personal knowledge, the value of it is greatly diminished.
Written records are vital to this process. When made at the time of the event, it is presumed to be more trustworthy than a later recitation or reconstruction of events. Since the record is made by the server, contemporaneously with the service act, it can be relied upon, with proper foundation, as better evidence than the proof of service. It is also invaluable when proving service, especially when the server is unavailable. Testimony of the custodian of record, such as a process manager, could attest to the business practice of the attorney service. The written record of the server, if not maintained by the server alone, may be relied upon to prove service, although it holds far less persuasive value than the server’s personally signed declaration.

A server should also keep independent records of their services, but I would be surprised if more than 20% do.

What Can We Do To Improve Our Profession?

The attorney service is indeed in business to make a profit, but our essential obligation is to the court. If a proof of service is provided to a client and the court, it should be signed by the person who has personal knowledge of the facts they are attesting to. Otherwise, it is a forgery, or a misrepresentation, and subject to both criminal and civil sanction, and could expose the offender to significant liability. Since it is an intentional act, the errors and omissions carrier would likely deny coverage.

Keep written records. Write thorough service notes on work orders, or at least capture relevant facts and observations. Keep a file, and be consistent with record-keeping. If it is necessary to support a service at court, make sure the process server is prepared with copies of the written record. If the process server is unavailable for timely proof of service, prepare a written record, based upon business records, and attach relevant copies to the declaration. If necessary, plan on testifying about the service and bring the original records for the court to review.

This issue will certainly become increasingly relevant as the advancing technologies of electronic or digital signatures and e-notarization become more common. At present, the use of these technologies has not been universally accepted by the courts. Eventually proofs and affidavits of service will be integrated into the process serving profession. The courts must have absolute assurance that these “signed” declarations are indeed that of the person making the statement.  The analogy with paper filings, and what an original signature represents, must be consistent.  This must be an industry standard.

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