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Monday, September 14, 2009

Service of Process Best Practices Adopted in Michigan

I found the following is text in a written public comment submitted by the National Association of Retail Collection Attorneys (NARCA) sent to the FEDERAL TRADE COMMISSION. The FTC is currently holding a series of roundtable discussions dealing with Protecting Consumers in Debt Collection Litigation and Arbitration matters.

“Because process servers are exempt from the definition of a debt collector´ under the FDCPA, the Federal Trade Commission has no authority over the mechanism of service of process in state court collection proceedings. NARCA recommends that the procedures for regulating service of process remain at the state court level. NARCA is open to working with the Federal Trade Commission to develop best practices and procedures on a state level for service of process. A model embodying this approach as has recently been implemented by the Michigan Creditors Bar Association. NARCA also believes that state court and legislatures may have a role to play in promulgating rules and procedures, including licensing requirements, for private process servers”.


For the most part I find the statement to be a positive attempt by NARCA to address a problem whether real or perceived with private process servers and the role they play in the collection of consumer debt cases.


I find it interesting that NARCA suggests the formation of Best Practices for the Service of Process and cites the Michigan Creditors Bar Association’s creation and implementation of Best Practices for Process Servers.  I am concerned that the Best Practices do not appear to have been drafted with any input from the private process serving profession.


To illustrate this point, the Michigan Creditors Bar Association Best Practices and the Michigan Court Officer, Deputy Sheriff and Process Server Association have entirely different sets of Best Practices for the Service of Process.


Michigan Creditors Bar Association Best Practices


Michigan Court Officers and Process Servers Best Practices


On its face it does not appear that they collaborated in any way. Having read them both I don’t have a problem with either set, it is a shame they did not work to create one set of best practices.


I am also concerned that there is nothing in the NARCA statement suggesting that the FTC or NARCA work with actual process servers in addressing the issues raised during the roundtable discussions. Fortunately, NAPPS and other process servers associations are starting to take a more proactive role in these discussions.


The NARCA comment also suggests regulation of process servers at a state level.  I am no fan of government regulation of the process serving profession. That said I recognize that if the private process servers ignore this issue it is likely government regulations will be forced upon us. Given the option, I would rather see the profession step up and make an effort to be a part of any regulatory solution that might result in an effort to create an outcome that we can live with.


I am interested in your thoughts.