proof of service – Process Server Institute

Opening a Levy File with the Sheriff Requirement Changes in 2017

July 27, 2016 PSIAdmin CA Service Laws, proof of service, Writs

California 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.

New York Traverse Hearings and Process Servers

April 25, 2016 PSIAdmin 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;

(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]

Criminal Liability for Preparing False Proofs of Service

June 11, 2015 PSIAdmin 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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Servicemember’s Civil Relief Act

February 13, 2015 PSIAdmin CA Service Laws, Federal Rules, NY Service Laws, proof of service

This is a post I made on a listserve in 2009 when another process server posted that he was not going to serve a document on a defendant because he was in the active military service.

This summary addresses what the Servicemember’s Civil Relief Act is, and explains in general terms what a server might need to know about it.

There seemed to be a gulf of confusion over this law, especially when serving someone in the military.

In each state and at the the federal level, laws have been enacted to protect service members in the active military. The laws date back to the Civil War when a moratorium was passed to suspend certain actions against Union soldiers and sailors for contract enforcement, bankruptcy, foreclosure and divorce proceedings. It was codified in federal statutes after World War I and II. The law was amended in 2003 (and now through 2012) and is commonly known as “Servicemember’s Civil Relief Act” (SCRA). It relates only to debts incurred prior to when the debtor enters active military service. The federal law is found at 50 U.S.C. App §§ 501-596.

This link takes you to a easy-to-understand summary of the law:
http://www.military.com/benefits/legal-matters/scra/overview

Before a default judgment is enforced against an individual, their military status must be verified by affidavit. These are often referred to as non-military affidavits, affidavits of military status, etc.)

That is why a process server is asked to determine whether the defendant is in the active military service. Some state laws, notably in New York, require a statement to be included in the affidavit of service. Other states, such as California, require the affidavit to accompany the request to enter default later during the course of the litigation.

It does not affect what a process server does when serving a lawsuit. A server should serve the document and service establishes jurisdiction over the defendant.

The SCRA protects the servicemember rights from a variety of SUBSEQUENT activities that can occur in the litigation, such as a stay of the proceedings, stay of execution, or a default judgment.

Furthermore, the servicemember’s time in the service cannot be used to extend the statute of limitations, especially as it relates to service. If a federal or state rule requires service within a particular amount of time after filing the complaint, the SCRA does nothing to affect the time deadline for service.

Therefore, if you, as a process server, think you are doing someone a favor by not serving the person because he or she is in the military service, think again. If you blow a statute because of your deference to the defendant’s military status, you may find yourself on the ugly end of a claim by the plaintiff for not performing the service.