Are Process Servers Embracing Change? Are they Confronting Challenges?

Service of Process by Email.

2011-12-13T20:57:00.000-08:00

Yet another example of how things are changing. This is becoming a common alternative to Physical Service when traditional service methods fail. Some would have you believe that this development is much ado about nothing.

"So long as the method of service is reasonably calculated to reach the defendant and allow the opportunity to object and respond to the litigation, service through e-mail comports with the due process clause," Thynge wrote in her opinion.

For the complete story click here: http://bit.ly/sK6rx8

Remember you heard about this first from SOPLF! The associations follow Service of Process Looking Forward if they want timely, actionable and relevant process serving related content.

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Process Servers Thrown Under the Buss?

2011-12-12T16:14:00.000-08:00

This afternoon National Public Radio (NPR) did a story on so called "Debtors Prison". The story describes how some creditors are employing the threat of Debtors Prison to enforce consumer debt. NPR appears to cover the issue fairly. In response to the NPR story InsideARM (online Accounts Receivables Management resource for Collectors) pointed out that NPR used an anecdotal example to highlight a very complex issue.

The InsideARM writer defending creditors/collectors and in the process attempted to divert blame for part of the problem by suggesting that Process Servers are part of the core problem. Below is the quote from InsideARM story.

“Regulators and ARM industry decision makers have long known that the issue of process serving in collection suits needs to be addressed. The FTC held extensive hearings on the matter two years ago, and some states have moved to put their own rules in place to prevent such warrants from being issued.”

The link in the quote above is to a story InsideARM wrote in 2009 entitled "Key Figures Download on Process Servers and Legal Collection Issues".

To listen to the NPR Story:

Jeff H. Karotkin

Los Angeles, Ca

213 915-6235

jeff@karotkin.com

Facebook group: http://www.facebook.com/#!/groups/serviceofprocess/

Twitter: http://twitter.com/#!/SOPLF

Are Private Process Servers More Efficient and Effective than Sheriffs?

2011-12-09T14:18:00.001-08:00

Service of Process on Foreign Corps in the U.S.

2011-12-09T13:39:00.001-08:00

United States Senate Bill S. 1946 introduced in the 112th Congress: 2011-2012; would require foreign manufacturers of products imported into the United States to establish registered agents in the United States who are authorized to accept service of process against such manufacturers. This is the third time that such a bill has been proposed in Congress. I believe that this bill deserves to be supported by all the state and national associations. If this bill were passed it could mean a new stream of process to be served in the United States.

In the past NAPPS took a neutral position on similar bills. Neither support or oppose; why? Without getting into the merits of the bill and if it is enforceable, why wouldn’t it be a good thing to allow process to be served in the U.S. on foreign entities doing business here? It seems to me that could generate a lot more work for process servers here. Those who are heavily invested in serving foreign process would naturally oppose this bill.

What do you think?

Remember you heard about this first from SOPLF! The associations follow this blog, my SOPLF group and ServeNow if they want timely, actionable and relevant process serving related content.

Jeff H. Karotkin
jeff@karotkin.com
Facebook group : http://www.facebook.com/#!/groups/serviceofprocess/
Twitter: http://twitter.com/#!/SOPLF

Service of Process Law Review Article

2011-11-28T09:07:00.001-08:00

This morning the National Law Review published an article commissioned by NAPPS on the relevance of personal service in a digital age. It is definitely worth taking the time to read it in its entirety. The following is a quote.

There is perhaps no set of acts more important in furtherance of commencing an action before a court than the filing of a complaint and the service of process on a defendant. Simply put, without proper service of process a Court has no jurisdiction over a defendant and may not proceed to judgment.⁴ Further, any such judgment rendered will in all likelihood be deemed void. As discussed below, a critical underlying rationale for the strict requirements relating to service of process is for a court to obtain jurisdiction over the defendant, to give a defendant reasonable notice as to the pendency of a claim, and to provide a meaningful opportunity to raise constitutional issues.

Here is a link to the article. http://bit.ly/SOPLawReviewArticle

Lessons Learned from a Lifetime in State and National Process Serving Associations

2011-09-24T14:15:00.000-07:00

I am encouraged by the number of new state process serving associations that have been established recently. Congratulations on having the courage and fortitude to roll up your sleeves and do the hard work necessary to create meaningful results for your industry. From where I sit it appears that Alabama, Illinois and Colorado to name a few are off to great start. Keep up the good work.

These developments are exciting and fun to watch. As I observe the successes of these associations it got me thinking about what works and what doesn’t when one is trying to work for the good of the association. I have the benefit of experiencing both the good and the bad firsthand - having literally grown up in the process serving industry/profession - so I thought I would share my experiences, thoughts, and concerns in the hopes that the new and established associations might benefit from them.

Learning the ropes as a CAPPS member

I will never forget my first annual meeting as an adult. Yes, I attended one or two as a minor over 30 years ago thanks to mom and dad dragging us kids along. My first annual conference as an adult was a CAPPS (now CALSPro) conference in 1984 or 1985. I have a very clear recollection of the business meeting and how impressed I was with the leaders of the association and how they gave their time and energy for the good of the industry. I came away from that meeting thinking that anyone who does not get involved and take an active role in helping to shape the future of the industry was foolish; that only good could come from such a collaborative effort. I was proud to call myself a CAPPS member and I wanted to know where to sign up to do whatever I could to help make a difference.

I did sign up and started attending board meetings, I agreed to be an area governor, and I joined a committee or two. A few years later I was elected to the board. At first I was very quiet, I saw my job as the “newbie” to listen and absorb as much information as possible. I hoped to contribute in my small way to create value for the members. Things were good.

It did not take long before I was exposed to the bad. I do not remember if it was my second or third year on the board but there was an issue that became very divisive within the organization. So much so that several members started a recall petition of certain board members. The issue had to do with the courts adopting Fax Filing in CA. Many members apparently felt that because there were several board members who were all active with the formation of a new company (Fax Court Filing not to be confused with Fax & File), that posed a potential conflict and they sought to recall all of those board members. Long story short, I was one of the individuals targeted for recall. I quickly became disenchanted with the notion that we were all working for the common good of the industry and that this nonsense was not what I signed up for. So I resigned in principle rather than take sides and fight with my fellow members. A few years later I got involved again after tempers settled.

Over the years CAPPS accomplished a lot and became an important and meaningful force in the process serving profession. To this day I am so honored and proud to have been a small part of CAPPS’s (now CALSPro) successes. One of things that made CAPPS successful was its willingness to nurture and encourage the younger generation to get involved and take an active role. It was as if the founders of CAPPS knew that they needed a succession plan in order to preserve and grow the association.

One of the most important things in my opinion that CAPPS did several years ago was to acknowledge that it needed to question what it stood for and what its goals and objectives were both long and short term. Doing things the way they had always been done was no longer going to win the day. The association needed a goal and more importantly a plan for executing on that goal. So it gathered the leaders of the association, committee chairs and other interested parties for a strategic retreat. A two-day meeting with a goal to re-cast the goals and objectives of the association was held. The time and money spent to undertake this endeavor was money well spent and among other things the California Association of Legal Support Professionals (CALSPro) was born. To this day CALSPro continues to thrive because its leaders past and present understood what it would take to ensure the association and industry in CA would have a meaningful purpose and future.

I credit vision, courage and the leadership of the founders with helping create the environment where the association could evolve and prosper.

Getting involved on a national level with NAPPS

Leading up to the CALSPro evolution I decided to get active with NAPPS, figuring that what worked for CAPPS would work for NAPPS. It took time to get accepted but I persevered, having learned from my early years in CAPPS that things are not always going to go your way and that you need to hang in there.

Despite several challenges, I found my niche as the technology chair. I also found out the hard way that NAPPS and CAPPS, though similar in many ways, operated very differently. There was not the same willingness to nurture or even accept that others might have ideas worth considering. Rather, you learned that if you were going to be active in NAPPS there were two paths to follow. The path of least resistance was to accept your role and in time you would raise through the ranks and perhaps you would chair an important committee.

The other path was less traveled for good reason. It was fraught with potholes and roadblocks.

I found myself torn as I tried to be accepted and as I tried to create change. Both were difficult. As a result I found myself on and off the NAPPS board a few times.

When I decided I wanted to be president, I knew I would have to play nicer. At some level I decided it was more important to play long if I wanted to make a difference. I rationalized that the only way I was going to be able to make a meaningful difference was to do so from within the organization and that meant toning down my approach. Once president I was naïve because I actually thought that I had earned the respect of some of my fellow board members. I thought that I could help shape the future of the organization as president. Instead I found myself constantly on an island isolated aside from one or two supporters on the board. Because there were no clearly defined goals and objectives for the association each board member had their own view of what was important. As a result we were all pulling in different directions.

Those two years as president were not fun. I did manage to make a few changes and hope that I influenced a few people.

Now, for the first time in decades, you have a crop of new leaders coming through the ranks and the old guard is finally getting the message that they need to loosen their grip and let the association and industry evolve. If I played even a small role in helping to create the environment for this evolution to be possible then I am proud of my contributions.

Lessons to help all associations evolve and prosper

It is not always going to be easy and more than likely there will be significant challenges. Whether a new association or old, I think either can benefit from the experiences of those that came before.

My hope is that NAPPS and the new associations will take my observations in the manner they are intended - constructive - and apply the lessons learned.

Not that anyone asked but I am going to offer my specific advice anyway.

1.Clearly define the association’s goals and objectives both short and long term.

2.Clearly articulate those goals and objectives to the membership so as to ensure everyone is pulling in the same direction.

3.Create a plan for executing the stated goals and objectives.

4.Constantly take stock of your progress and be willing to take corrective steps when necessary to get things back on track.

5.Periodically reconvene the leaders of the association to re-examine the goals and objectives so as to ensure they are still relevant. It is important that you guard against group-think and include non-board members when you define the association and what it hopes to accomplish.

6.Celebrate successes and learn from your failures. Don’t give up.

7.Constantly nurture and encourage the future leaders of your organization.

8.Challenge yourself and the organization to question the status quo.

9.Be open to and embrace change. Not for change’s sake, but as a way of encouraging the growth and evolution of the organization.

10.Recognize when it is time to get out of the way and let others lead. Have a succession plan.

Smartphones Are Not Smart, Process Servers Who Use Them Are!

2011-07-28T03:25:00.000-07:00

The advantages a process server enjoys when they make full use of their smartphone are many. Aside from the obvious uses of a phone, anyone with 3G connection or better likely has access to the worldwide web at their fingertips. You can verify a business or residence address, you can verify a corporate status of an entity, you can take pictures of service attempts or locations, you can send and receive email, you can update the process serving application that tracks and manages active assignments, you can update the office or customers. All while you are on the streets doing what you do best: serve process.

There are several software vendors that cater to the private process serving industry that have developed applications that allow you to do all these things and more. Being able to provide your customers (process forwarder or law firms) real-time access to the status of any pending assignment is a good thing. A happy customer is more likely to be a repeat customer and is more likely to refer you to others.

One fairly recent development is the ability of these software applications to track a process server’s every move, attempt, routes, miles driven and other important service events by leveraging the GPS capabilities of your smartphone. Arguably the tools and benefits available to process servers have come a long way from the days of Thomas Brothers map books and pagers. As such, many tasks associated with the service of process have gotten easier, faster and cheaper. Another important and likely overlooked benefit is that these applications can create a trusted record of the efforts associated with the service events. I would argue that is a good thing, especially with all the stories of alleged sewer service in recent years.

Recently I have heard several independent process servers complain that they were not comfortable with the collection agencies, law firms and the process forwarding companies asking them and even requiring them to use a smartphone to communicate their efforts. They argued that this insistence or requirement was going too far and they were not interested in big brother tracking their every move. While I understand where they are coming from, I would suggest that these requirements are in effect no different than the requirements that existed before smartphones came on the scene. It has always been a requirement or expectation that independent process servers communicate with the process forwarders, law firms and collection agencies. Before smartphones, you called, faxed, or showed up in the customer’s office to provide a detailed account of your efforts. All a smartphone does is provide the process server a more efficient means to communicate. I submit that it actually makes the process servers more efficient. And a more efficient process server likely makes more money.

At the end of the day the process server is still his or her own boss just as they have always been. They control the manner and method by which they complete their task, just as they always have. I submit that the big brother argument is just an excuse for not wanting to embrace change.

If a process server is uncomfortable with the terms of the contractor agreement being offered then they have free will, and as such they can chose who they want to contract with. I submit that if you insist on not utilizing the most efficient tools available to you then you are putting yourself at a disadvantage. Rest assured someone else will gladly accept the terms and conditions that the process forwarders, law firms and collection agencies are offering.

But Jeff, aren’t you the same guy who has written articles that are critical of the new rules being imposed in New York that are intended to hold private process servers accountable by mandating GPS and other reporting requirements? I would argue that what I am suggesting in this article is different. In New York it is government that is imposing these requirements and not the free market. In New York you have two choices, comply or shut down. I would argue that it is better for government to enforce the existing laws that punish those that choose to engage in sewer service than impose new laws that take choice away for the process server and their customer. We do not need to be regulated by government to create a more accountable, trusted and transparent industry. I believe that we can do it ourselves.

The use of a smartphone will likely make you a better, faster, more efficient process server who is accountable and trusted. And isn’t that what the customer is ultimately looking for?

Smartphones are not smart, process servers who use them are!

Process Servers Must Embrace Change or be Left Behind

2011-06-30T08:11:00.000-07:00

I am always on the lookout for new applications that are not just cool but can create real value for businesses and individuals. Recently, I became aware of a new product called Square. Square is an application that enables individuals and businesses to accept credit card payments from their mobile device.

Anyone that accepts credit cards using the traditional methods and providers knows that the signup and equipment purchase/leasing is time consuming and expensive. With Square you can download the app to your phone or tablet, navigate the signup process and start accepting credit card payments within a matter of minutes. You do have to wait for Square to send you the credit card reader that plugs into your head phone jack if you want to swipe credit cards. I signed up and It took three business days for my card reader to arrive. Here is the kicker it is free and you can accept credit cards anywhere you have a phone connection. No monthly minimum charges or equipment fees and their swipe fees are very competitive.

I am not writing about this because I want to endorse a product, rather I am writing about it to illustrate what Square represents in my view. They challenged the status quo; transforming the relationship between buyers and sellers.

How is this relevant to process servers? Good question, I believe that it is a lesson that technology and innovative thinking will continue its forward march and impact our industry in ways that may be uncomfortable or even threatening to our existing business model(s).

Square founders saw an opportunity to create a business that challenged the status quo. They launched in 2009 and have already signed up over a half million customers. Square founders were not from the credit card processing business, thus they were not constrained by traditional thinking. They simply identified a problem and sought out an easy to enable solution. The traditional credit card processing companies were focused on how they have always fulfilled the merchant’s needs. They were not looking at how they could revolutionize their business. The point is they were stuck they were not embracing change.

My question to you is; are you paying attention to what is going on in process serving industry? I submit most in the industry are not. I think they are so consumed by the day to day operations to recognize that things are shifting and changing around them.

I believe that it is critical occasionally to take a step away from the day to day grind and get some altitude on things. Challenge yourself to reexamine the tasks you fulfill for your customers and ask yourself if you are meeting your customer’s expectations; and are you leveraging technology in a way that will enable you to remain relevant for years to come.

I submit the future of your business and perhaps the industry is riding on your ability to recognize challenges to your traditional business model and turn those challenges into opportunities. If you don’t, you may look up one day and wonder what happened to your business. The answer will be some like the founders of Square will have built a better mouse trap.

Will Physical Service of Subpoena’s on AT&T Become a Thing of the Past?

2011-05-19T05:00:00.000-07:00

If AT&T has its way the answer is YES. As you can imagine AT&T and its family of companies receive Subpoena’s many times every day. In an effort to manage the intake and routing of records requests AT&T recently launched an online application that allows and encourages the delivery of Subpoena’s for records electronically.

The efficiencies they gain as a result of in-taking Subpoena’s through the electronic portal are enormous. The system is user-friendly and within a few short minutes AT&T gathers all the data necessary to quickly and easily process the request for their customer’s records. The user interface requires the initiator to provide all the court and case data necessary to satisfy their legal requirements. Once the initiator completes a few screens they are given a confirmation and instructions to fax the Subpoena to their intake center.

This development is nothing new; as a matter of fact one might argue that it is part of a global trend that embraces the use of technology in all aspects of the legal profession. In 2009, I wrote an article entitled
Is Personal Service of Civil Subpoenas Coming to an End? This article explores this trend and how it might impact the process serving industry. In that article I offered my thoughts and suggestions on what the industry could do to address this challenge. In my opinion most process servers and process server associations are failing to acknowledge that the future of the process serving process is going to change dramatically.

I contend that the AT&T development is the tip of the iceberg. Other companies like them are already embracing the concept of establishing a secure online channel for the intake of service of process. It may come to pass that the customers (law firms) of process servers will in time find out that they no longer need a process server for the timely, reliable and trusted delivery of their legal documents.

If you continue to think nostalgically about the process serving industry and how it used to be, then you are at the train station but not on the train. The emergence of web-based technologies and systems has and will continue to forever change the landscape of not just the process serving industry but virtually every business community. Process servers are not immune to this massive shift and will not remain relevant in the long term unless they find a way to ensure that they retain a role in the digital environment.

Process servers need to rethink their role and work with one another as a team to address this challenge before it is too late.

Alternative Service via Facebook, Twitter or other Social Networks suggested by the Utah State Courts.

2011-04-22T19:02:00.000-07:00

Recently I was poking around on the internet and happened upon the Utah State Court website that provides information on the service of process. This site is easily the most user friendly and accessible resource for information about all the definitions of and all the acceptable forms of Service of Process in Utah. I wish all state courts had their information so well organized.

One the sections that caught my attention was the description of Alternative Service URCP 4(d)(4). It read as follows:

If you cannot find the person to be served after using reasonable diligence, or if you can show the court that the person is avoiding service, you can ask permission to serve the complaint and summons (or other document required to be served under URCP 4) by some other means.

You will need to file a motion asking permission to use this kind of service and a statement describing your attempts to find and serve the person.

So far very standard stuff, one of the more interesting parts of the Alternative Service section is link to a resource page to find people also on the state courts website. That resource page offers approximately 15 suggested links on how to find someone “Finding People for Service of Process”.

But the section that I thought was most interesting was suggestions for the types of alternative service that you could pursue. The suggestions ranged from Publication to Service via a social network, such as Facebook; service via a text, service via notification to a phone number; or service to a Twitter account.

Those of you who have followed my postings on this blog know I have provided many examples of service via alternative means from all over the world. Until now I had never seen a state court provide suggestions for alternative service that specifically called out Facebook, Twitter, Text and other social media outlets.

It gets better; the Utah State Courts website even offers a blank Proof of Service that includes the following:

I communicating to the person named above by:

Social Network (such as Facebook)	(at)	(name)
Twitter
Text message
Phone

posted by Jeff Karotkin

Are Sheriff Departments that Serve Civil Process Smarter than Private Process Servers?

2011-04-15T21:09:00.000-07:00

One might argue that in Virginia the Sheriffs appear to be embracing change in a manner that private Process Servers are not. Does that make them smarter? You be the judge.

For a decade I have been writing and speaking about the challenges and opportunities that modern technologies present to process servers. I have maintained that it is not a matter of if electronic service of civil process will happen, but rather a matter of when.

It appears that “when” has arrived. No, I am not talking about the dozens of examples of electronic Service of Process globally that have allowed or enabled for the service of process under certain circumstances by email, Twitter, Facebook, text, social media outlets and even traditional websites.

No, this time I am referring to a bill that was introduced and passed without any opposition (none). The bill enables electronic service of Summons & Complaints in the State of Virginia. This bill from inception to completion took a few months. But its origin according to the sponsor dates back almost ten years. The following is what the sponsor said to me in an email after I reached out to him to find out more information:

Jeff,

Thank you for contacting our office regarding HB 1611. The electronic service of process features of HB 1611 were concepts developed as logical extensions of the eFiling of court records legislation over the last few years. The eFiling of court records legislation followed our eFiling of land records legislation, which had its roots more than 10 years ago.

So what exactly does this bill do? On its face it appears to enable the parties to a case to serve and accept Service of Process by electronic means. The attorney’s, the registered agents of parties and Sheriff are appears to have a role in the transaction. It appears to codify into law a practice that has existed for some time that up to now was more a kin to Notice and Acknowledgment Return Receipt Requested.

Please note that I did not include private process servers in the description above. That’s because it appears that the bill was written in such a way as provide the Sheriff with the sole authority to serve process electronic ally. The bill even sets a statutory fee that the Sheriff can collect to serve process electronically.

If you find yourself wondering, how could this happen when process serving associations like NAPPS are organized and whose very purpose are central to insuring adverse legislation does not impact our ability to remain relevant? Good question. I was wondering the same.

Perhaps more important at this point is the question I find myself asking… Was this bill an opportunity we missed? I believe that the answer is YES! If we had been aware of this bill perhaps we would have had influence that would have either limited its impact, or perhaps we would have come to realize that if eService is going to exist then we better find a way to have a role. I believe that if we hope to remain relevant given the ever changing landscape we operate in we must be willing to take bold steps to insure our ability to not just survive but rather thrive. If you think you can stop the march of technology and the forces driving it march into to our business you are being naïve.

In another example of Sheriff Departments seeking to gain efficiencies the Los Angeles County Sheriff’s Department introduced a bill last year in California that would have enabled them to intake and serve Writs/Levies electronically on banks and employers where creditors are seeking to garnish wages and levy on bank accounts. The bill was caught be the California Association of Legal Support Professionals (CALSPro) and they were successful in getting the bill amended in a manner that minimized the impact on private process servers in California.

There are other examples of local and state government embracing change that addresses the many challenges their organizations face. As a matter of fact there are at least three other instances of Sheriff Departments working with county agencies to allow for the service of Subpoenas on law enforcement officers electronically. Though these examples are less likely to impact private process servers they are indicative of the types of technology applications that could erode our role in due process.

If process servers are not proactive in their approach to addressing the future of the industry and the challenges and opportunities that lay ahead they will likely look up one day and wonder “How did I get here?” and “Is it too late for me to change?”

I continue to maintain that if process server’s hope to remain relevant in the years to come, they must be willing to embrace change and confront these types of challenges and opportunities.

I will leave you with that for now. I could carry on continuing to write about this topic but in the interest of trying to keep a this short, I will refer you to my blog for more information. There you can access sixty-five blog entries consisting of articles, commentary and opinion that are designed to get the industry to have what I believe is a long overdue discussion and exchange of ideas about the challenging times we live in. For more about the Virginia bill HB 1611 click this link.

posted by Jeff Karotkin

Philippine Supreme Court Allows eService of Summons on Foreign Firms

2011-04-12T09:33:00.000-07:00

In an ever increasing litigation trend globally, the benefits of today's technologies is set to be implemented in yet another court system.

The Philippine Supreme Court announced the adoption of the use of electronic means to serve summons on foreign corporations who have been sued in the Philippines but have no resident agent or not registered to do business in the country.

The rule states in part:

“When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines.”

From a practical standpoint this new rule is similar to the United States Federal Rule of Civil Procedure FRCP 4 (f) (3). U.S. courts have read this provision flexibly, consistent with the constitutional requirements of due process.

For example, in Rio Properties, Inc. v. Rio International the United States Ninth Circuit held that the district court did not abuse its discretion by authorizing plaintiff to serve an Internet business outside the U.S. by email.

What does this mean for process servers? To say I knew for sure would be a stretch. I do believe that as the legal community in the Unites States and globally becomes more familiar with and accustomed to doing business online it is only a matter of time before traditional service of summons and complaints will be allowed by rule electronically.

Posted by Jeff H. Karotkin

New York Process Servers Granted Partial Restraining Order Against New Regulations

2011-04-01T10:40:00.000-07:00

For those of you interested in or are following the developments in the city and state of New York as it relates to the Sewer Service fallout, the Department of Consumer Affairs (DCA) for the city of New York has published the new regulations that impose additional requirements on individual process servers and process serving agencies.

Needless to say the New York State Professional Process Servers Association (NYSPPSA) has mobilizing its members in an effort to minimized the impact of the proposed and adopted rules over the course of the last year. To that end, NAPPS too has offered its support and financial assistance. Due in part to the generous contributions NAPPS made financially (approximately $50,000.00) NYSPPSA was able to retain a law firm to file a restraining order in an effort to block or at least temporarily stop the implementation of the new regulations.

Today NAPPS announced the following:

The New York State Professional Process Servers Association (NYSPPSA) was granted a partial restraining order on March 21 to allow the Association and the City of New York to continue negotiations over new regulations for professional process servers within the city limits.

For the full press release please click here.

If you are interested in reading the current version of the regulations I encourage you to visit the DCA website for a complete description of all the requirements. The following are links to all the new reg's and the forms the DCA has posted on their website.

New York City Licensing Law and New Rules
License Application for Agencies
License Application for Individuals
Process Serving Agency Background Information Form
Process Server Individual Background Information Form
Roster of Process Servers
Roster of Process Serving Agencies
Surety Bond Model Template
List of Bonding Companies
Excel Spreadsheet for Maintaining Electronic Records
Compliance Plan Affirmation
Process Server Individual Trust Fund Enrollment Form
Child Support Certification Form
Granting Authority to Act Affirmation

I went through them the other day and found myself wondering will the small and mid-sized agencies survive. Depending upon whether you are getting a license as an agency or an individual, there are as many as fourteen (14) forms to complete, hundreds if not thousands of dollars to be paid, bonds in the amount of 10K or 100K to obtain and countless new reporting requirements to comply with. As if that were not enough, this version of the regulations do not even deal with the proposed GPS or electronic tracking requirement that the DCA will likely implement later this year.

In my humble opinion these regulations impose a significant challenge and/or barrier for everyone impacted but will most severely impact the solo agencies and mid-sized agencies as well as independent process servers. So much so, that unless NYSPPSA successfully stops or changes many of these requirements many of those folks will find themselves unable to comply and as a result will likely be forced out of business.

As is typical in situations like this, those that created the current problem that resulted in these new regulations are not going to be the ones who suffer the consequences.

posted by Jeff Karotkin

More Alleged Fraud In Florida

2011-03-25T20:55:00.000-07:00

In two sworn Affidavits signed by licensed Process Server LIZMILLS, she states that because she is concerned about her personal integrityand the integrity of her profession, and having therefore reviewed severaldocuments that bear my name and alleged signature.

“I have never attempted to serve anyone in Lehigh Acres, FL(Lee County) at any time. I never signedthe aforementioned document and the signature appearing on the document isunequivocally not mine.”

“I have also reviewed Returns of Service dated 1/3/09 forJerry Berman and Heidi Berman. I neversigned the aforementioned documents in front of a Notary Public at anytime. The signatures on the Returns ofService dated 6/17/08 are unequivocally not mine.”

If both sworn statements are in fact true, one could easilyconclude that what is alleged is far more than a clerical error on the part ofthe process serving agencies involved.

To read the content of each Sworn Affidavit, click on eachimage.

One can only hope that the truth will be found and if any crimeswere committed that the offenders might be brought to justice.

Posted by Jeff Karotkin

Florida State Bar Proposes Mandatory eFiling and eService Statewide

2011-03-22T21:24:00.000-07:00

The following are a few sections of the proposed rule changes as published in the Florida Bar News on

3-21-11

The Florida Bar rules committees have filed an out-of-cycle report of proposed rule amendments to implement electronic filing of documents with courts. The Court invites all interested persons to comment on the proposed amendments, which are reproduced in full below, as well as online at http://www.floridasupremecourt.org/decisions/proposed.shtml.

FLORIDA RULE 2.520. PAPER DOCUMENTS (Strike through text is existing langauge to be deleted by this proposal. Underlined text is new proposed language.)

(a) ~~Type and Size~~ Electronic Filing Mandatory. All ~~pleadings, motions, petitions, briefs, notices, orders, judgments, decrees, opinions, and other papers and official~~ documents filed in any court shall be filed by electronic transmission in accordance with rule 2.525. “Documents” means pleadings, motions, petitions, memoranda, briefs, notices, exhibits, declarations, affidavits, orders, judgments, decrees, writs, opinions, and any other paper or writing submitted to a court.

(c) Documents Affected.

(1) All documents that are court records, as defined in rule 2.430(a)(1), ~~may~~ must be filed by electronic transmission, provided that:

(A) the clerk ~~of court~~ has the ability to accept and retain such documents;

(B) the clerk ~~of court~~ or the chief judge of the circuit has requested permission to accept documents filed by electronic transmission; and

(C) the Ssupreme Ccourt ~~of Florida~~ has entered an order granting permission to the clerk ~~of court~~ to accept documents filed by electronic transmission.

Any attorney, party, or other person who files a document by electronic transmission shall, immediately thereafter, file the identical document, in paper form, with an original signature of the attorney, party, or other person if a signature is otherwise required by these rules (hereinafter called the follow-up filing).

~~(2) The follow-up filing of any document that has previously been filed by electronic transmission may be discontinued if:~~

(A) after a 90-day period of accepting electronically filed documents, the clerk of court or the chief judge of the circuit certifies to the Supreme Court of Florida that the electronic filing system is efficient, reliable, and meets the demands of all parties;

(B) the clerk of court or the chief judge of the circuit requests permission to discontinue that portion of the rule requiring a follow-up filing of documents in paper form, except as otherwise required by general law, statute, or court rule; and

~~(C) the Supreme Court of Florida enters an order directing the clerk of court to discontinue accepting the follow-up filing.~~

All documents filed by electronic transmission under this rule satisfy any requirement for the filing of an original, except where the court, law, or rule of procedure otherwise provides for the submittal of an original.

If you are a process server in Florida you may be wondering so what does this have to do with me? That depends upon the types of services you are offering your law firm customers.

If you are providing court filing for a fee to your customers in those counties that are currently enabled for eFiling it likely means that you will no longer have any role in the filing of any court documents.
If you provide court filing as part of your service of process package or bundled price in those counties that are enabled for eFiling it likely means that you will no longer be able to say that the court filing task is part of what justifies your bundled service of process price.
If you file your certificates of service as part of your service of process bundled price in those courts that are enabled for eFiling it likely means that you will no longer be able to say that the court filing of the certificate is part of what justifies your bundled service of process price.
If on the other hand you hate dealing with the courts, standing in line to see a clerk and otherwise waiting for documents to be filed in those courts that are enabled for eFiling you are in luck if this proposed rule change is adopted.

It is also worth noting that the Florida Supreme Court is also considering an amendment to the rules of civil procedure that will mandate electronic service of all court documents subsequent to the initial documents filed in a new action.

That means that Florida attorneys will no longer be able to use a messenger, courier, overnight provider, fax or U.S. mail to give notice to all parties for all documents subsequent to the initial documents filed in a new action.

It appears the State Courts of Florida are embarking upon a journey into a Brave New World.

posted by Jeff Karotkin

Threatening to Shoot a Process Server is a Bad Idea!

2011-03-17T08:03:00.000-07:00

GOOD NEWS! After a jury found an Elbert County man guilty of felony menacing, the 59-year-old will face his sentencing in April. George Sumpter was found guilty on Jan. 20 and will be sentenced at 9 a.m. April 18 for threatening to shoot a civil process server.

Source Elbert County News http://coloradocommunitynewspapers.com/articles/2011/03/16/elbert_county_news/news/03_ad_sumpter__ec.txt

posted by Jeff Karotkin

First Service of a Summons Via Facebook Approved in Britain!

2011-03-15T08:49:00.000-07:00

The attorney found it challenging to get a debtor to attend court to answer questions about their finances. She was quoted as saying: (click link for full story)

“It is great to see that the courts are willing to embrace new technology.

Being able to use Facebook to do so will certainly assist in the case and allow our client creditor the possibility of obtaining further information to enforce the debt.”

Here we go again. This example is yet another instance where the courts have acknowledged that leveraging social media is as effective, if not more so than other alternate mean of service when a defendant is difficult to serve. By my count that makes six (6) instances internationally where a social media platform was approved to provide notice to a party to a case.

As far as I am aware it has not yet occurred in the U.S. but I suspect it is only matter of time.

If you are interested in other instances where electronic service of process has been approved by the courts please use the search feature on this blog and you will find several posts on the topic.

For those of you on Facebook, I have created a Facebook business page titled "Service of Process Looking Forward" where you can post information and interact with others interested in addressing the challenges facing the process serving industry.

Thanks

Jeff Karotkin

Process serving reform calls for renewed transparency, integrity and innovation

2011-03-11T06:00:00.000-08:00

By Matt Massa - March 10, 2011

The last few months have been a distressing time for the mortgage service industry, partly due to some inexcusable and unacceptable process serving practices. While it is clear that some process servers have not lived up to the highest possible ethical standards in doing their jobs, the breakdown has been magnified as many process serving companies have washed their hands of indignities and claimed to have no responsibility for their errant, subcontracted process servers’ actions.

Yet where there is distress and disorder, there is opportunity for renewal. Substantive reform not only can correct both real and perceived problems, but also serve as an example for how service providers in diverse industries can better manage their vendor relationships.

Impact on housing economy

Allegations of sloppy and fraudulent practices have ranged from process servers lying about delivering foreclosure notices to homeowners, to legal documents used to seize homes that don’t even identify the lender claiming to hold the mortgage, to “robo-signers” approving documents without carefully reviewing them when foreclosing on homes. Such revelations dating back to late last year have led to a nationwide investigation by state attorneys general. While we don’t know the outcome of those investigations, even simple errors of omission in case detail from the bottom up could expose unhealthy processes to potential litigation, more bad press, and financial repercussions. The bottom line is that unethical practices will cost the industry in terms of reputation, revenues and continued chaos.

After alleged abuses made national headlines, major banks like JPMorgan Chase (JPM: 45.54 -2.19%) and Bank of America (BAC: 14.26 -2.26%) briefly halted their foreclosures to review their internal processes and those used by the law firms they hire. This hold – as well as any future interruptions during the course of ongoing investigations – impacts the daily costs that lenders have in carrying the default loan (lost interest, property maintenance, depreciation or risk, etc.). Operational overhead also adds pressure to the rest of the loan pipeline, including law firms and their vendors. Obviously, stalls in the process make it difficult to maintain economic balance.

When downstream vendors, of which process servers are just one example, cause a negative impact on upstream bottom line, it leads to a general breakdown in trust. The gut reaction is to replace vendors. In cases where a single vendor was used, the instinct is to replace it with several vendors to increase competitive innovation. Unfortunately, this typically requires more time for oversight and leads to greater inefficiency in performance (including learning curves), inconsistent communications and missed assumptions (toward potentially unexpressed expectations), and potentially more errors. Additional management time plus a greater number of vendors and processes naturally lead to increased total costs of sales for each case, therefore driving project overhead up and profit down for all parties involved.

Furthermore, the perception of malfeasance is contagious. When a mutual vendor, or even a client, is caught with their hand in the cookie jar, it is assumed to be a widespread issue. Similarly, when an industry colleague is accused of something, it is feared that all similar companies are engaging in the same behavior – adversely affecting the reputation of an entire industry.

Ensuring quality vendor relationships

Process serving companies – the majority of which are not guilty of malfeasance or responsible for this latest crisis – are wise to first volunteer transparency to help rebuild industry trust. But restoring integrity also must involve putting quantitative processes in place to ensure the RIGHT process serving professionals are hired. In addition, the remedy needs to include implementation of tangible systems to build confidence that those individuals are doing what they are supposed to do, even when no one is directly observing them on the job. Applicable systems and procedures include diligent screening of prospective process servers; implementing industry-standard quality control measures and processes; and ensuring that process servers possess sufficient knowledge about their profession and the proper licensing, as well as uphold personal, company and industry standards.

A quantitative approach to screening for people of character and integrity. If a company does not really, truly know who is handling its files, now is the time to find out. Our industry needs to ensure that only people of integrity who also greatly respect their trade are in the profession of serving documents. The way to do this is by adopting character-based processes for selecting candidates. It is imperative, for example, to ask potential employees and their references about dependability, honesty, thoroughness, discretion, creativity, flexibility and attentiveness. In addition, we must verify candidates’ track records for success, performance and loyalty, even through criminal or other background checks as appropriate.

Greater emphasis on preparing process servers for success. Ensuring success on the job starts with clearly establishing and communicating the standards, ethics and compliant conduct that define the profession. Next, it is vital to ensure, capture and leverage professional knowledge and experience through enhanced training. This involves proper use of technology, but also adherence to process serving laws, civil procedure codes, court-specific interpretations and requirements, shared best practices and standard operating procedures, as well as client-specific expectations.

To achieve unequivocal excellence and efficiency, without competitive bias, it is imperative that our industry adopt a universal certification/approval program for independent, professional process servers. The better trained and educated servers are, and the more standardized the material and knowledge, the less likely servers will stray from the standards of practice. Pay-for-perfection compensation systems also are a proven tool for helping workers stay invested in their work.

Implementing integrated, industry-standard quality control. At the bare minimum, process servers are supposed to make sure that the processes they follow are legitimate and executed in a manner according to set laws and regulations. But without proper checks and balances and quality control, the opportunities for cutting corners are magnified. Important to an overall strategy of restoring integrity to our industry is the use of technology that can help deter potential abuses. Readily available and proven tools include GPS, systematic flagging of multiple jobs at different addresses, suspicious time stamping protocols, and time tracking against distance projections. Process serving companies also should give 24-hour, unrestrained access to client files and real-time updates, as well as proactively invite client audits. Such tools and practices help to build much needed transparency into the process.

Using innovation to create a modern process serving environment. It’s time to reinvent the yardstick. Measuring process server success strictly on speed of service and completeness is outdated and irrelevant. Instead, law firms and their servicers should look for vendors dedicated to change and progression, as well as strive to bring diverse vendors together to help innovate and streamline processes. These forward-thinking companies are committed to creating lean environments including process improvement and innovation, continuously building better and more economic ways of getting the job done on target. Routinely matching – and sometimes surpassing – time and completeness goals is a byproduct of lean and efficient process execution. However, the real value of these progressive vendors is found in the little innovations – often aberrations – that improve the daily life of a case. These small enhancements ultimately provide economic efficiencies on total case costs, giving lift to firm/servicer profitability.

Our industry has surely suffered in the short term due to some callous mistakes by process serving agents who fall short of the high standards of professionalism and ethics that most of us in the industry continue to uphold. Now we must move forward by making tangible changes in how we hire, educate and train professionals who perform this critical function. We need a more enlightened climate of collaboration, transparency and integrity, as well as a renewed commitment to innovation. Those companies that resist the transition will be left behind and may risk keeping our entire industry under a cloud of suspicion filled with the sins of the past.

Matt Massa is the national operations director of Firefly Legal, a leading associate legal services company that specializes in process serving, traces and searches, face-to-face services, and court filing. With offices nationwide, the company partners with its clients to find solutions that are guided by collaboration, innovation and integrity.

Posted By Jeff Karotkin

NATIONAL PROCESS SERVERS ASSOCIATION LAUDS N.Y. DECISION

2011-03-10T09:47:00.000-08:00

“The National Association of Professional Process Servers (NAPPS) wishes to extend its congratulations to the New York State Professional Process Servers Association (NYSPPSA) in its agreement with the New York City Department of Consumer Affairs to a 30-day extension before implementing the newly adopted process server rules and law for New York."

“NYSPPSA worked closely with the New York City Department of Consumer Affairs in coming to this agreement and we are pleased that the Department has also agreed to continue negotiations as both sides have a shared goal in providing quality services to the legal system and ultimately justice for those who engage that system."

Posted by Jeff Karotkin

Service of Process by Publishing Documents to a Public Website

2011-03-07T22:28:00.000-08:00

Another creative way to Serve foreign defendants.

On February 24, 2010, Microsoft provided notice and service of the Complaint, Summons and related materials in English and Chinese through the publicly available website http://bit.ly/fZ5y4w (www.noticeofpleadings.com) Microsoft has updated the website throughout this case.

The Court’s orders and notice regarding this action have also been widely reported in international media publications, including news media in China. (D.I. 32-2 at ¶¶ 15-22.) The reporting and publication of this action in China and throughout the world has been continuous. (Ramsey Decl, Ex. 11 (filed herewith).)

Posted by Jeff Karotkin

How to Serve Osama Bin Laden and Al Qaeda

2011-03-07T22:12:00.000-08:00

Plaintiffs have sued two classes of defendants. The first class is the foreign State defendants, Iran, and Iraq. The second class consists of individual terrorists and terrorist organizations including Osama Bin Laden, al Qaeda, and the Taliban, a/k/a the former Islamic Emirate of Afghanistan.

As to both classes, if plaintiffs know the specific address of a particular defendant, service will be made by conventional means pursuant to Fed.R. Civ. P. 4. As to foreign states, their agencies and instrumentalities, service will be effectuated pursuant to Fed.R.Civ.P. 4(j) and 28 U.S.C. § 1608. However, a number of the named defendants cannot be located. Therefore, alternative methods to effectuate service of process upon these defendants, as set forth on “Exhibit A”, pursuant to Fed.R.Civ.P. 4(f)(3), are fully warranted.

See full motion and order here.

Posted by Jeff Karotkin

Electronic Delivery System for Subpoenas - A Case Study

2011-03-01T08:42:00.000-08:00

The City of Inglewood and the Los Angeles District Attorney’s Office wanted to implement an automated electronic delivery system for Police Department subpoenas. The electronic delivery system needed to constitute legal service of the subpoena.

Implementation of an “Electronic Delivery System” to deliver subpoena data was needed to provide timely and efficient service to police officers who work a variety of shifts and create an audit trail for delivery and receipt of the subpoena. It was crucial to create a system that provided: confirmed identification of relevant parties, uniform search criteria and scalability to serve multiple cities Police and City Attorney Departments in the future, The system needed to be web-based solution for ease of administration and end user access via web browser for the Police Officer served with the subpoena, provide real time notification, monitoring of all Subpoena activities and easy to use reports for management.

This is yet another example of the landscape changing in way we didn't expect just a few short years ago. I have heard several process servers say... At least this does not affect us. Really in jurisdictions all over the country this same thing is happening and process servers are being displaced, the act of service of process physically is replaced with systems that offer tremendous efficiencies to all the agencies involved. To suggest otherwise is naive.

I am not saying this is a good thing or a bad thing, I am simply pointing out that it is happening and we process servers need to be informed so we can make intelligent decisions about what it means to each of our businesses moving forward.

A copy of the case study can be found here.

Posted by Jeff Karotkin

LOUISVILLE, KY, Metro Police, Jefferson Courts Test Electronic Subpoenas

2011-02-19T08:15:00.000-08:00

LOUISVILLE, KY City leaders hope a stimulus grant will buy the Metro better court attendance. Starting next month, Louisville Metro Police Department officers will get their Subpoenas to attend court proceedings electronically.

This system is set to replace the cumbersome physical service method in place today where documents are lost and officers are not getting notice on time to attend. It is estimated that some 100,000 subpoenas are served on county agencies in Louisville annually. For more on this story click here.

I originally reported on this project in April of last year. See blog post http://bit.ly/g1G5uw

Official (Former Process Server) to use business background to help him govern

2011-02-18T09:24:00.000-08:00

MARTIN COUNTY - City Commissioner Troy McDonald plans to put his experience as a local business owner to work for the people of Stuart.

For 12 years, Mr. McDonald has operated Duces Tecum Process Serving. Less than one month in office, he said his priorities include seeking ways to improve the business environment to create jobs, develop opportunities for existing companies and attract investment to the area.

"I've seen the difficulties that businesses have been through," he said. "I've talked to a lot of business owners. I can use the tools and knowledge I've gathered to help them."

http://www.myhometownnews.net/index.php?id=78018

Consumers Union Recommends Increased Oversight of the Service of Process

2011-02-07T21:14:00.000-08:00

Consumers Union Report was issued last month (January 2011) that deals with alleged debt collection abuses. Process Servers and the service of process are mentioned in the report.

The report addresses many alleged abuses committed by the collection industry. Admittedly Process Servers are not the primary focus of the report, but once again the New York sewer service incidents are being called out as the reason for increased oversight of the process serving profession. However, one of the key recommendations by Consumers Union is to “increase oversight of the service of process” at a state and federal level.

I believe that even though it may feel like the right thing to do for those in power, more laws and regulations like those currently being imposed in NY are not necessary or useful. These new laws will only serve to drive many small and solo process servers out of business or force them to become part of larger companies in order to survive.

If the profession has any hope of stopping the kind of knee-jerk reaction like we are seeing NY, the profession should continue to watch the Federal Trade Commission’s activities
and recommendations and the activities of the newly formed agency Consumer Financial Protection Bureau who may have the authority to write new laws under the FDCPA to rein in alleged abuses.

Proposed Rule Requires GPS to Track and Record Process Server Activity

2011-01-08T10:24:00.000-08:00

The New York City Department of Consumer Affairs has given notice that it intends to adopt new rules regarding the licensing of process servers. The new rule 2-233b Electronic Record of Service, would among other things require all process servers in New York City to have a GPS enabled device for the purpose of tracking, monitoring and recording electronically all the activities a process server engages in to affect service.

The DCA hearing is set for January 27, 2011 at 10:00 a.m., 66 John Street, 11th floor hearing room, New York, N.Y. 10038.

The proposal new rule dictates what records physical and electronic must be kept, how they are to be maintained and for how long. Process servers will be is responsible for turning those records over upon request to the Department of Consumer Affairs.

This rule is an additional requirement imposed by the NYC council last year. As I understand it some of the details are still being worked out, but all process servers will also be required to purchase a $10,000.00 surety bond and all process serving agencies will be required to have a bond in the amount of $100,000.00.

All of this is the result of a few rouge process serving agencies that allegedly engaged in "Server Service". This blog has reported on a few of those agencies in prior posts.

At least two of those process serving agencies, "American Legal Process" and "Serves You Right, Inc" have been investigated by the NY State Attorney General Office and as a result have been either formally charged with crimes or closed down.

Another NYC process serving agency "SamServ" was in the news this week. The American Bar Association Journal ran a story entitled "Federal Judge OKs RICO Conspiracy Class Action Against Law Firm in ‘Sewer Service’ Case" the story refers to a lawsuit that alleges a scheme where debt buyers, a law firm and a process serving agency worked with one another to defraud consumers in collections cases.

This Federal Court decision could not have come at a worse time for New York process servers given the Department of Consumer Affairs hearing later this month.

If these and other agencies did commit fraud or worse, they should be held accountable to the fullest extent of the law. Unfortunately all other process serving agencies will have to also pay a steep price as a result as a result of the new rules and regulations. Some fear that many process serving agencies will be forced out of business as a result.

Service of Process in a Virtual Law Firm

2011-01-03T18:14:00.000-08:00

Reprinted with permission of Virtual Law Practice
Stephanie L. Kimbro, Esq., M.A., J.D.

Virtual Law Office: Kimbro Legal Services, LLC

More virtual law firms are springing up that combine a traditional litigation practice with the features of a virtual law office. Members of these virtual firms use the online law office as a way to communicate and collaborate on case matters and to work remotely. Their clients use the client portal as a way to keep current on the status of their case, review documents, avoid numerous in-office visits and to pay their legal fees online. Some litigation practices, depending on the state bar’s rules, are foregoing the office lease and meeting with clients in shared office spaces with virtual receptionists (if you are a licensed NJ attorney, stick w/the brick & mortar expenses).

One of the questions I hear from litigation-based virtual law firms is how to handle service of process online. Most rules of procedure still require that the summons and any other accompanying documents be handed to the defendant in person at his or her residence or place of business. Different states have variations of the rule. Some require only service of process by licensed, private process servers rather than service by a court official, such as a sheriff. Some allow for electronic service of process. The states also have different forms and time deadlines for the process.

If the case is being filed in U.S. district court, the process is covered by Rule 4 of the Federal Rules of Civil Procedure. For an in-depth, 2009 law review article on the topic of electronic service of process in federal court, check out: Electronic Service of Process at Home and Abroad: Allowing Domestic Electronic Service of Process in the Federal Courts, by Ronald Hedges, Kenneth Rashbaum and Adam Losey, The Federal Courts Law Review, Volume 4, Issue 1, 2009.

If you are a virtual law firm, you are more likely to be handling cases where your clients and their case matters are not geographically located in the same cities where you and your firm members are practicing law. Imagine how a multijurisdictional virtual law firm that handles litigation must comply with different states’ rules for service of process. Most states allow for service by mail if the defendant is located in another state. But what if the virtual law firm has a presence in that state in the form of a firm member who is working remotely? Or what if the firm does not have a member physically in that state but who is licensed to practice law in the state that the defendant resides in? Is service by mail allowed then? Can email or social networking sites be used after snail mail fails to work?

I’m sure many of you read about the Australian case in 2008 where the law firm had attempted to follow traditional methods of service and after those failed turned to Facebook as a means of serving the defendant. See another fun law review article on this topic: Superpoked and Served: Service of Process via Social Networking Sites, by Andriana L. Shultz, University of Richard Law Review, Volume 43, 2009.

There are a lot of arguments in favor of electronic service of process which I’m not going to get into. In 2006, the ABA Section of Science and Technology Law updated its Best Practice for Electronic Service of Process. From my reading though, e-service continues to grow in acceptance and use, but is not in every states’ rules of procedure. Many firms, even those that use technology to deliver legal services, still prefer in-person service of process. In certain cases, they may want the in-person method to also convey to the defendant a greater sense of urgency that he or she take the matter seriously. A sheriff banging on the door might send a certain message that a posting on the Facebook wall might not.

For that reason and while waiting for all court systems to get on the electronic service of process bandwagon, a virtual law practice could consider the use of a web-based process server that allows the firm to order, track and manage service of process securely online. This might be a good use of web-based technology to assist a virtual law firm in handling service of process across the country, online in a secure web-based system. I’m sure there are other process server companies out there adapting to the changes in technology, but I’ve been exploring the services offered by USA-Serve and how they might be used by a virtual law firm whether its a solo practice or a larger multijurisdictional firm. The company has a secure portal for attorneys to manage and track service of process. If you are a litigation-based virtual law practice, it might be worth checking out this cloud based service for certain cases.

Know of any other companies providing electronic service of process or that has a web-based system that firms can use to track and manage service of process across the country and internationally? How can these systems’ features be integrated into the case and client management of a virtual law office? As more litigation-based firms add virtual law offices to their services, I would expect to see this component added into the process of managing a client’s case online for use by the firm’s remote attorneys and virtual administrative assistants and paralegals.

For more blog posts from the author of this post please visit Virtual Law Practice

Service of Process by E-Mail on a Foreign Defendant

2010-12-16T20:44:00.000-08:00

Ina case that was heard in the UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA, Judge Jeffrey S. White ordered thefollowing:

"Although the Court does notfind that the service already effectuated by Plaintiffs was improper, in an abundance of caution and considering that the WikiLeaksDefendants may be foreign parties, the Court ORDERS Plaintiffs to re-serve the amendedcomplaint and summons and all TRO-related papers, including this Order, on theWikiLeaks Defendants at their listed email addresses by no later than 3:00p.m., today, February 13, 2008."

This is an example that theworld we live in is getting smaller or perhaps more local. This is in large part thanks to the powerof the internet and its ability to bring things that were once far away ordifficult to gain access to directly to our desktops.

The power of the internet and thetechnology that enables it is making easier to communicate in ways thatwere not even contemplated just a few short years ago. This power tocommunicate is spilling over into the world of litigation and more specificallythe act of giving notice to a party of a pending action or Service of Process.

This blog has in part called to your attention numerous examples of courts worldwide that have come to recognize thatsometimes the most effective manner for providing legal notice of a pendingaction is by electronic means. In the past the only alternative foreffecting service on a party that could not be located was publication. Now weare seeing service by Twitter, Facebook, and email more and more frequently.

Is this a much ado about nothing assome in positions of power in the process serving community have suggested oris this yet another example of trend that seems to be gainingmomentum?

You be the judge.

District of Court Permits International Service of Process via Email

2010-12-09T17:30:00.000-08:00

MR Printing Equipment, Inc. and MR Sales and Service, Inc

-v-

Dietmar Potscher

Case Number: 10cv00937

Filed: February 10, 2010

Court: Illinois Northern District Court

U.S. District Judge John W. Darrah permitted Plaintiff, MR Printing Equipment, Inc., to serve a complaint and summons on Austrian defendant, by e-mail. This is yet another example of a continuing trend in federal litigation in the US and courts globally.

The case, MR Printing Equipment, Inc. v. Potscher, is pending in the United States District Court

in Illinois. Upon motion of the MR Printing the court permitted the defendant, to be served via e-mail under Rule 4(f)(3) of the Federal Rules of Civil Procedure.

The fact that the defendant resides in Austria which is not a signatory to the Hague Convention and the permissive language of the Federal Rules related to the service of process, allowed the Judge to permit international Service of Process via email.

Below is the Judges Minute Order on the Plaintiff's Motion to allow International Service via email and the Proof of Service filed in the case indicating the manner of service.

Canadian Judge Allows Service of Process Via Facebook

2010-10-25T20:35:00.000-07:00

Cyber-service ‘a new frontier’

Story Source - By Michael McKiernan | Publication Date: Monday, 25 October 2010

AnOntario judge has urged lawyers to be creative with electronic methods ofservice after allowing a litigant to do it using Facebook in a family lawcase.

Thismakes five or six cases worldwide that this blog has chronicled in the lastyear. Admittedly this form of alternative service continues to beauthorized when other forms of service have failed.

Thatsaid, check out one Canadian lawyer said about service of process in thedigital age.

Forhim, Facebook is a much better option than traditional methods of substitutedservice, such as placing an ad in a newspaper. He has also considered creatinga web site using the name of a defendant with originating documents availablefor download.

“The chances of someone Googling themselves is probably higher than somebodycatching a legal notice in the Toronto Star directed to them,” he says. “It’snot a great way of serving someone but compared to putting an ad in thenewspaper, it’s much better.”

“We need some reformin the Rules to allow for more efficient service. There are many ways thelawsuit could come to that person’s attention without having to have a thirdparty go and knock on that person’s door at the dinner hour.”

New York Attorney General Shuts Down Another Process Serving Company

2010-08-25T21:42:00.000-07:00

In July of this year New York Attorney General Andrew M. Cuomo filed a complaint against SERVES YOU RIGHT, INC and DAVID WARSHALL. The complaint alleged that the defendants engaged in fraudulently business practices, making false representations on affidavits of service throughout Long Island and New York City.

Seven days later, a Consent Order and Judgment was entered in this case permanently enjoining the defendants from being involved in or being employed by any process serving companies or process serving activities. SERVES YOU RIGHT, INC was required to immediately cease operations within 60 days of the Order. DAVID WARSHALL was also ordered to pay a fine to the NY AG's office in the amount of $50,000.00 within ten (10) days of the order.

The complaint can be found at this link. The Consent Order and Judgment can be found at this link.

This action is part of an ongoing investigation by Attorney General Cuomo into unlawful debt collection practices. Since commencing the statewide initiative in May 2009, Cuomo has shut down more than a dozen debt collection and affiliated process serving companies and required others to reform their deceptive practices.

Singapore's Supreme Court Considers Service via Social Media

2010-08-25T20:04:00.000-07:00

Process Servers have a sometimes difficult sometimes easy job to perform. This task "the service of civil process" has remained largely unchanged for more than 100 years. This Blog was dedicated to chronicling the many challenges the process serving profession currently faces.

On several occasions in the last year this Blog has cited examples of how modern technologies are impacting or posing threat to the traditional role of process servers.

For those the follow this Blog you know that I have cited several examples of social media already being used to effect the service of process most notably in Australia (twice), New Zealand, Canada and the United Kingdom.

The Singapore Supreme Court is exploring how to leverage social media platforms for the benefit of the civil litigation process. Specifically, the high court has published a document titled USE AND IMPACT OF SOCIAL MEDIA IN LITIGATION.

This twenty-six page document explores the opportunities and challenges associated of the use and impact of social media in civil litigation. The document proposes several best practices for both personal and substituted service discovery, exchange of documents between parties and other applications for social media platforms.

The Supreme Court is inviting public comment on these best practices and proposals. The due date for comments is September 15, 2010. The document can be found here.

On occasion I have accused of “promoting” electronic service of process. That is not the case; all I have been doing is calling attention to the issue in the hopes that NAPPS and all private process servers will one day have a meaningful and productive conversation about what these challenges mean to our profession.

Unless we want to be like the pony express (extinct) we had better find a way to insure that a disinterested third party (process server) retains a role in an electronic world.

What are process servers going to do when there is a proposal at the federal level that seeks to leverage today’s technologies in a way that marginalizes our role? It will happen; it is only a matter of time.

I am not saying the sky is falling. I am saying it is time to acknowledge these types of changes challenge our very existence and these types of challenges are presenting themselves with ever increasing frequency.

The fundamental question is; what if anything are process servers going to do to ensure that they remain relevant? The notaries figured it out… why can’t process servers? If we do not figure it out, social media and email may well fill the void. Then where are we?

I might be wrong, but I doubt it.

Eviction Notice Served via Email - Will That Work?

2010-08-23T21:44:00.000-07:00

That depends... In a recent California Appellate Case the issue of giving notice by email came into question.

In Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, 185 Cal. App. 4th 744 (2010), the court found that the landlord in a commercial lease had failed to give proper notice of failure to pay rent to the tenant even though the tenant admitted receiving notice of default from the landlord by email.

The signed lease provided for the notice by hand delivery, regular mail, and facsimile. In an apparent effort to to keep pace with technology, the lease also allowed for notice by Email.

The court found that notice was not properly given and the default must start over. The court cited that even thought the lease had an electronic transmission provision; the provision was not specific enough to satisfy the court that actual notice was given. Had the lease provision actually listed the tenants email notification address and the landlord could show that it the email was delivered to the physical address designated in the lease the electronic notice provision would have been sufficient.

Moral of the story if you are going to have an electronic notice provision in your lease be sure to consult counsel who should be able to draft language that makes clear that electronic notice via email is effective whether or not addressee actually opens or reads the email notice and any attachments.

India Supreme Court Allows Process to be Served via Email

2010-08-15T16:30:00.000-07:00

Last month, The Supreme Court of India acknowledged that over half of the cases before it are delayed by the act of process serving. As a result the Supreme Court ruled as follows:

[i] In addition to normal mode of service, service of Notice(s) may be effected by E-Mail for which the advocate(s) on-record will, at the time of filing of petition/appeal, furnish to the filing counter a soft copy of the entire petition/appeal in PDF format;

[ii] The advocate(s) on-record shall also simultaneously submit E-Mail addresses of the respondent(s) Companies/Corporation(s) to the filing counter of the Registry. This will be in addition to the hard copy of the petition/appeal;

[iii] If the Court issues notice, then, in that event alone, the Registry will send such an additional notice at the E-Mail addresses of the respondent(s) Companies/Corporation(s) via E-Mail;

[iv] The Registry will also send Notice at the E-Mail address of the advocate(s) for respondent(s) Companies/Corporation(s), who have filed caveat. Advocate(s) on-record filing caveat shall provide his/her E-Mail address for effecting service; and

[v] Within two weeks from today, Cabinet Secretariat shall also provide centralized E-Mail addresses of various Ministries/Departments/ Regulatory Authorities along with the names of the Nodal Officers, if already appointed, for the purposes of service.

It is worth noting that the mode of service typically used that is causing the delays is service via the Postal Service, return receipt required. Without the proper safeguards and requirements service via email is arguably less reliable than service via postal service. Maybe if these notices were served by private process servers these delays would not exist...
Regardless this ruling is yet another example of technology having an impact on the practice and procedures associated with the act of giving notice to the parties/litigants to a case.

For a copy of the order click here.

Evasive Subject Served via Facebook

2010-07-31T09:54:00.000-07:00

In yet another example of how social media is creeping into every aspect of our lives, last month Australian Court in Adelaide ordered that the social networking site Facebook be used again to serve legal documents on an alleged father in a child support case.

This is the fourth instance of Facebook being allowed/ordered for the Service of Process that I am aware of. Australia, New Zealand and Canadian judges have all signed orders allowing a defendants to be served by posting the Notice of the Action to the defendants Facebook account.

Clearly judges around the world see social networks as being at least as reliable a means for giving notice if not more so than publication when all other methods have failed. I have to admit that I would agree that in certain circumstances service of process via social-networks or by other electronic means makes more sense than service by publication.

I would not dismiss these recent developments as being a fad or a trend. They are important and I believe they demonstrate that the courts and our customers are more and more willing to consider alternate manners of service that only a few short years ago where unthinkable.

As I write this post I am researching a ruling from the Supreme Court of India that appears to have ruled that Service of Process via email is now an acceptable manner of service for certain case types.

Stay tuned, more to follow.

FTC Final Report of Debt Collection Industry

2010-07-12T21:23:00.000-07:00

FTC Issues Report on Reforming Debt Collection Litigation and Arbitration; Recommends Steps to Protect Consumers and Repair a Broken System

Process Servers are called Out as Part of the Broken System. The Report Recommends Four Steps to Help Insure Proper Notice. The Recommendations though well meaning, will only serving to make the act of service of process more cumbersome and expensive.

They will not stop those that chose to break the law regardless of the rules and regulations.

A new Federal Trade Commission report concludes that the system for resolving consumer debt collection disputes is broken, and recommends significant litigation and arbitration reforms to improve efficiency and fairness to consumers.

The report, “Repairing A Broken System: Protecting Consumers in Debt Collection Litigation and Arbitration,” reflects information gathered at roundtable discussions the FTC held throughout the country in 2009, as well as public comments and the FTC’s experience in debt collection matters. The roundtables followed a February 2009 report that identified some concerns with debt collection litigation and arbitration, but concluded that more information was needed about certain debt collection litigation and arbitration practices before further recommendations could be made.

The Commission therefore recommends state and local governments consider making a variety of reforms to service of process, pleading, and court rules and practices to increase the ability of consumers to defend or otherwise participate in debt collection litigation.

The FTC’s 2009 report found that debt collection litigation raised concerns about collectors failing to properly notify consumers of suits they have filed, collectors filing suits based on insufficient evidence of indebtedness, courts frequently granting default judgments against consumers who do not appear or defend themselves, collectors seeking to recover on debts beyond the statute of limitations, and banks freezing funds in bank accounts that are exempt from garnishment by law. In its new report, the Commission’s principal recommendations to address these concerns in litigation are:

States should consider adopting measures to make it more likely that consumers will defend themselves in litigation, decreasing the prevalence of default judgments.

Service of process may be inadequate or improper for many reasons. For example, process may fail to reach the consumer if it is delivered to an old or otherwise incorrect address or it is delivered to the wrong person, such as someone with a similar name. Some process servers may simply not serve the consumer but falsely assert that they have done so.

States should require collectors to include more information about the alleged debt in their complaints.

The FTC committed to closely monitor debt collection arbitration and evaluate whether creditors and arbitration forums provide consumers with meaningful choice and a fair process. The Commission also said that, as appropriate, it will report its views on new debt collection arbitration models to policymakers, industry, consumer groups, and the general public.

The FTC believes that reforms such as those discussed in the report should be made to ensure that the debt collection litigation and arbitration systems adequately protect consumers without unduly burdening the debt collection system, which helps to keep credit prices low and helps to ensure that consumer credit remains widely available.The Commission vote to issue the report was 5-0. Commissioner Julie Brill issued a concurring statement in which she urged Congress to enact a temporary ban on the mandatory arbitration of consumer debt collection disputes. “Such a ban should remain in place until the arbitration process can be shown to be fair, transparent, and as affordable as traditional litigation, and until consumers have a meaningful opportunity to opt out of pre-dispute arbitration without losing access to the credit services they seek,” she said.

Many consumer advocates and judges who adjudicate debt collection cases stated that inadequate or improper service occurs frequently. One local official reported that her agency’s comprehensive investigation of process servers in New York City revealed that “many are not performing service. They are filling out false affidavits of service. They are not going to the addresses. They are not sufficiently checking the addresses.” A Chicago judge explained similarly that one of his colleagues had conducted a “spot audit” of one process server and found that he “claimed to be in areas thirty miles apart in the Chicago-land area within minutes . . . . And we [asked,] ‘Is he Superman?’”

Nevertheless, the very high rate at which consumers do not appear and the service of process problems documented in some jurisdictions give the Commission a sufficient basis to conclude that efforts to improve service of process in debt collection litigation would benefit consumers in many locations.

An electronic version of the report text is available at http://www.ftc.gov/os/2010/07/debtcollectionreport.pdf

Superpoked and Served: Service of Process via Social Networking Sites

2010-06-14T20:57:00.000-07:00

Whether professional process servers like it or not increasingly courts worldwide are leveraging technology and social media outlets to provide parties with a method of service that is reasonably calculated to provide actual notice over other forms of alternative service. I submit that this trend is part of a natural evolution of the Service of Process and that service by electronic means is more reliable and predictable than Service by Publication or by the Postal Service.

In 2009 the University of Richmond Law Review Article was published regarding the use of Social Networks to affect Service of Process. I have to admit that I somehow missed its publication. It is yet another example of logical and practical thinking coming from the legal community related to the evolution of Service of Process.

The following are a few key points made in the Law Review article I found worthy of mentioning here...

The fact that the Hague Convention does not expressly permit service of process through social networking sites is not detrimental; the Convention does not expressly permit service through other technological means such as fax and e-mail, but these methods have been approved by a number of courts and were even endorsed by the Hague Commission.

Rule 4 - Courts have held that service of process can be effectuated by electronic means when foreign defendants are evasive. At least one commentator has suggested that electronic service should be permitted in domestic cases, even though doing so would require amending the current Federal Rules. Absent an amendment to the Federal Rules, the only logical prong under which service of process via Facebook might suffice is Rule 4(f).

Technological advancement often presents difficult barriers for courts to overcome in the application of traditional law,” but service of process is “so fundamental to the operation of law that historically [it has] been more open to adaptability and change.” Courts are beginning to find electronic service constitutionally permissible under Mullane, and the trend toward electronic service is “a logical step forward in the evolution of civil procedure and reflects the popular use of new technologies in common communication.” Facebook is one such new technology.

If you would like to read the entire law review article I have posted it to my Google documents page that can be found here.

Are You Liable For Your Process Server Under FDCPA?

2010-06-14T19:58:00.000-07:00

By Tomio Narita, Simmonds & Narita LLP

Consumers often assert FDCPA claims against collectors based upon alleged misstatements or misconduct by process servers while serving a state court summons and complaint. Thus, consumers may claim a process server was rude or abusive at the time of service, causing them to suffer emotional distress, or that a process server made false statements about the debt. These allegations are not sufficient to impose liability on the collector under the FDCPA.

For the rest of the post please click here.

Service on Foreign Corporations - Hague Convention not Required

2010-05-19T17:49:00.000-07:00

California Appellate Court Okays Service on Foreign

Corporations Through Service on Their California

Subsidiaries in Certain Circumstances Despite Hague

Convention Requirements

Authors: Cristian L. Vallejo & Eric S. Jones
http://manattcentral.manatt.com/news.aspx?id=11458

Foreign companies doing, or planning on doing, business in California should be aware that a recent decision from the California Court of Appeal for the Fourth District held that under certain circumstances a foreign corporation can be validly served in California by serving such corporation’s California-based subsidiary despite the requirements of the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the “Hague Service Convention”). Such Decision requires foreign companies to be alert to the receipt of service documentation by their California-based subsidiaries.

In Yamaha Motor Company, Ltd. v. Superior Court, the California Court of Appeal for the Fourth

District reminded us that federal law makes the validity of service dependent on state law. Relying on Cosper v. Smith & Wesson Arms Co. (California Supreme Court decision) and Volkswagenwerk Aktiengesellschaft v. Schlunk (U.S. Supreme Court case) and interpreting the relevant provisions of the California Code of Civil Procedure and Corporations Code, the California Court of Appeal ruled that a Japanese company could be served under California law by serving its American subsidiary (alleged by plaintiff to be the Japanese company’s “general manager” in California) rather than through the Hague Service Convention. The Court of Appeal held that although such method of service seems “too easy a way to get around the Hague Service Convention,” in reality, under California law, that is the case.

The plaintiff in the case was a 12-year-old boy who was injured while riding a Yamaha product. A lawsuit was brought against Yamaha Motor Corporation USA (“Yamaha-America”) and Yamaha Motor Company, Ltd. (“Yamaha-Japan”). Plaintiff alleged that Yamaha-America was the wholly owned domestic subsidiary of Yamaha-Japan and the exclusive importer and distributer of Yamaha vehicles for the United States. In addition, plaintiff alleged that Yamaha-America conducted the following activities in connection with Yamaha vehicles: testing, provision of warranty and owner manuals, marketing, and receiving of all customer complaints and accident reports for the United States. Plaintiff’s theory to serve Yamaha-Japan by serving Yamaha-America was that Yamaha-America was Yamaha-Japan’s “general manager” in California and, as

such, it can be validly served on behalf of Yamaha-Japan under California law.

In Schlunk, the U.S. Supreme Court held that “the only transmittal to which the [Hague Service] Convention applies is a transmittal abroad that is required as a necessary part of service” and that “the Due Process Clause does not require an official transmittal of documents abroad every time there is service on a foreign national.” Therefore, the question becomes a matter of state service of process law. That is, if the applicable state law requires service abroad, then the Hague Service Convention will apply, and if it does not, then the Hague Service Convention is not implicated.

While California does state in California Code of Civil Procedure Section 413.10 that the rules Governing summonses are “subject to” the Hague Service Convention, the Yamaha court was quick to point out that “subject to” does not mean “pursuant to the rules of,” but rather that “treaties trump conflicting state law.” Pursuant to California Code of Civil Procedure Section 416.10, a corporation may be served, among other techniques, by any method authorized in Sections 1701, 1702, 2110, or 2111 of the California Corporations Code. Corporations Code Section 2110 specifically applies to foreign corporations and authorizes hand delivery of process to the “general manager in this state” of a foreign corporation as valid service on such foreign corporation, therefore the Hague Service Convention is not implicated.

In Cosper, while interpreting a subsequently repealed California Corporations Code Section, the California Supreme Court concluded that, under California law, service was proper when the “agent served is of sufficient character and rank to make it reasonably certain that the defendant will be apprised of the service made.” In formulating this language, the court was attempting to determine if a sales representative that operated on a nonexclusive basis was the “general manager” in California of the foreign corporation. The court found that, yes, such a sales representative was the “general manager” and that service was proper because the representative was of sufficient rank to make it reasonably certain that the foreign corporation

would be apprised of the service made.

Taking into account the fact that Yamaha-America provided to Yamaha-Japan the exclusive services described above, which are much more in-depth than those found in the Cosper case, the Yamaha court found that it was “reasonably certain” that Yamaha-America would apprise Yamaha-Japan of any service in California, and as a result, Yamaha-America was the “general manager” in California for Yamaha-Japan. In addition, the Yamaha court found that the fact that the Corporations Code Section discussed in Cosper had been repealed was a “non-issue,” as the court could not “tease out an intervening change in the statutory law.” Therefore, service on Yamaha-Japan’s domestic subsidiary, Yamaha-America, which acts as its “general manager” in California, was valid.

Although, as a result of this California Court of Appeal’s decision, plaintiffs may, under certain circumstances, forgo service on a foreign corporation pursuant to the Hague Service Convention, it is important to keep in mind that there are very good reasons to prefer such service instead. As Justice O’Connor pointed out in the Volkswagenwerk case, “those who eschew [the Hague Service Convention’s] procedures risk discovering that the forum’s internal law required transmittal of documents for services abroad and that the [Hague Service Convention] provided the exclusive means of valid service.” In addition, she points out that “parties that comply with the [Hague Service Convention] ultimately may find it easier to

enforce their judgments abroad.”

Manatt, Phelps & Phillips, LLP’s attorneys stand ready to assist you with any questions you may
have regarding the implications of this decision.

For additional information on this issue, contact:

Cristian L. Vallejo - Mr. Vallejo’s practice focuses on both financial restructuring and finance and corporate transactions with particularly experience in cross border transactions. His experience includes: Representation of lenders and investors in corporate finance transactions of all types; Representation of clients in connection with the start -up and acquisition of companies in the US and throughout Latin America; Representa tion of bondholders, lenders, servicers and other creditors in connection with financial restructuring and workouts, involving multiple jurisdictions, of US and Latin American based companies; and
Representation of clients in connection with the development and financing of large energy and other infrastructure projects throughout Latin America.

Eric S. Jones - Mr. Jones is an associate with the Business, Finance & Tax practice group in the
Los Angeles office. He has a broad-based tax practice in corporate, partnership, international and individual income tax, including mergers and acquisitions, reorganizations and dissolutions, choice of entity considerations, executive compensation, and transactional matters.

http://manattcentral.manatt.com/news.aspx?id=11458

Federal Court Authorizes Email Service of Process of Chinese Defendant

2010-05-10T17:37:00.000-07:00

Trends In International Litigation : International Business

Lawyer & Attorney : Ed Joffe : Joffe & Joffe Law Firm :

Miami, Florida Global Customs & Trade Issues

Published By Edward M. Joffe of Joffe & Joffe, LLC

Chanel, Inc. brought suit against Zhong Zhibing, a/k/a Zhong Zhiping under the federal trademark laws

for illegally promoting, advertising, selling, offering for sale, and distributing products bearing exact copies of Chanel-registered trademarks in the Western District of Tennessee through various fully interactive commercial internet websites.

After filing suit, Chanel hired several investigators to learn Defendant's name, physical address, electronic mail address, and other identifying information. One investigator purchased a Chanel-branded handbag, which was processed entirely online, which order included shipping and billing information, payment, and confirmation. The only contact information gleaned were several email addresses. Another investigator working in China was able to find the defendant through a telephone number, but never a physical address. As a result of its inability to find the defendant’s physical location, Chanel asked the court for leave to serve by email.

The Court noted that under Fed. R. Civ. Pro. 4(f), a plaintiff was required to use the Hague Convention

for service of process in China. However, the Hague Convention did not apply if a physical address did not exist. Rule 4(f) provides that a party may use an alternative means to affect service if two conditions are met: (1) the party obtains the permission of the court, and (2) an international agreement does not otherwise prohibit the means of service approved. See Fed.R.Civ.P. 4(f)(3)

Here, the court noted that service by e-mail did not appear to violate Chinese law. Article 84 of the Civil

Procedure Law of the People's Republic of China states that “[i]f the whereabouts of a recipient ... is

unknown ... the document shall be served by public announcement.”

Likewise, use of email under the facts of the case met the constitutionally mandated due process equirements of “notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”

Under all of those circumstances, the court allowed service by email.

Practice Pointer: Counsel for Chanel did its due diligence, including using a Chinese investigator, in trying to find a physical address for the defendant and only then asked the court for leave to serve by email. Absent a strong record of these efforts, the court it is unlkely the court would have granted the request.

Collectors and Process Servers Impacted by New Regulations in New York

2010-04-23T19:43:00.000-07:00

The New York City Council adopted and published a new set of rules governing Debt Collectors that became effective April 24, 2010.

These new rules were promulgated by the same body that took on Sewer Service in New York that resulted in arguably the strictest regulations on private process servers in the United States.

Normally I would not write about rules effecting the collectors in New York, but these rules among other things place strict requirements on the collectors to maintain records of the activities of the process servers they contract with.

The following are the relevant sections of the new rules in New York City that will have an impact of process servers that work for debt collectors covered by these rules:

(3) A record of all cases filed in court to collect a debt. Such record shall include, for each case filed, the name of the consumer, the identity of the originating creditor, the amount claimed to be due, the civil court index number and the court and county where the case is filed, the date the case was filed, the name of the process server who served process on the consumer, the date, location and method of service of process, the affidavit of service that was filed and the disposition for each case filed. Such record shall be filed in a manner that is searchable or retrievable by the name, address and zip code of the consumer and the creditors who originated the debts that the debt collection agency is seeking to collect.

(4) The original copy of each contract with a process server for the service of process, and copies of all documents involving traverse hearings relating to cases filed by or on behalf of the debt collection agency. Such records should be filed in a manner that is searchable by the name of the process server.

The entire rules can be found at the following link: http://www.nyc.gov/html/dca/downloads/pdf/debt_collection_agency_law_rules.pdf

Electronic Subpoena System to replace cumbersome hand delivery of 100,000 paper subpoenas

2010-04-16T10:16:00.000-07:00

Louisville Metro police have signed a $454,000 contract to adopt an Electronic Subpoena System to replace the county's cumbersome system of hand-delivering 100,000 paper subpoenas annually and help make sure officers show up for court.

“Everybody's going to benefit from this,” especially police, said Bruce McMichael of the Louisville Metro Criminal Justice Commission.

Metro Police Lt. Col. Vince Robison, responsible for overseeing court attendance, said the department is “very optimistic this will help us eliminate” the problem of officers missing court.

In recent years, an estimated 10 percent of the approximately 100,000 paper subpoenas issued annually to Louisville police never reached the officers, according to department officials. They and others cite the process as one reason why officers miss court. More on this story can be found here.

For those of you following my Blog you know this is the second major instance where government has deployed this type of solution to deal with the challenges associated with physical paper service of process.

I suspect this is just the beginning of things to come...

New York AG Shuts Down Another Process Serving Agency

2010-04-07T15:46:00.000-07:00

The NY state Attorney General’s office has shut down a process server company that repeatedly claimed in legal affidavits that its employees had made proper service of legal documents to thousands of consumers when in fact it had not.

The Attorney General Office entered into a settlement requiring Brockport-based We Serve It For You Process Serving Agency, LLC, operated by Joanne Marie Coy, John Coy, Theresa Buehler, and Wesley Converse, to immediately cease operations and cooperate with ongoing investigations. The business and its owners must also pay fees, costs, and penalties totaling $10,000 and John Coy must surrender his notary public commission.

The AG’s office began investigating We Serve It For You in 2009 as part of an ongoing probe into debt collection lawsuits.

“The toxic business practices of this company impacted individuals across New York State,” said Attorney General Andrew Cuomo. “People need to have trust in the legal system, and that’s why we are banning this company and its owners from serving legal documents to the people of New York.”

The Attorney General’s investigation determined that those documents were regularly signed and mailed to John Coy, who would notarize them without witnessing the signature. From 2007 to 2009, We Serve It For You served approximately 54,000 complaints and maintained a database detailing each service. The Attorney General’s Office and the Unified Court System determined that:

On more than 1,100 occasions, We Serve It For You process servers claimed to have made service or service attempts at two or more places at the same time.

On more than 700 occasions, We Serve It For You process servers claimed to have made service or service attempts before they even received the documents to serve.

On tens of thousands of occasions, John Coy notarized the signatures of We Serve It For You process servers when he did not witness the signatures.

Through the agreement with Attorney General’s Office, We Serve It For You and its operators are permanently barred from having any legal or beneficial interest in any business involving the delivery or service of legal documents. The business will permanently cease all activities and dissolve.

We Serve It For You and its operators are also required to cooperate with the Attorney General’s ongoing investigations into illegal debt collection practices.

The settlement follows recent action against another process server, American Legal Process (ALP), which engaged in a similar fraud and caused more than 100,000 consumers to have costly judgments entered against them without the chance to respond or defend themselves in court. Aside from a civil suit and criminal prosecution against the owner of ALP, Cuomo’s office is seeking to have more than 100,000 default judgments that were caused by the faulty service overturned.

The NY AG Press Release can be found here

NYC cracks down on process servers with new law passed today 3-25-10

2010-03-25T17:07:00.000-07:00

Process Servers in New York City have been given notice that a new law is coming that will regulate them at a level that is was unthinkable a year ago. If the Mayor of New York signs the law process servers will be forced to do the following:

• Process servers must pass an exam showing they understand the law

• They also must electronically log their attempts to serve papers, using wireless or GPS, and keep those records in a database for seven years

• The legislation requires independent process servers to file a $10,000 surety bond

• The legislation requires companies to file a $100,000 surety bond

No longer is the process servers affidavit of service good enough in New York. All of this is thanks American Legal Process who allegedly dumped (sewer service) as many as 100,000 summons and complaints.

Business Week story here.

Substituted Service of Process by E-Mail

2010-03-21T20:54:00.000-07:00

The Whois Subcommittee of the Internet Committee of the International Trademark Association recently published a report that discusses the problem of Service of Process in cases of fictitiously owned commercial websites.

The report steps through the committees premise that service of process by electronic mail on the e-mail address should be allowed. The committee specifically recommends that Service of Process by electronic mail to the email address provided in the Whois record associated with the domain name for that website shall be effective against the named registrant of a domain if sent to their email address. The committee is recommending that this change in the laws or treaties be enabled without the need for a court order allowing for an alternative manner of service.

In the report the committee cites fifty-six (56) cases of relevance in the analysis of the challenges associated with giving actual notice of an action to a foreign or fictitious defendant who has infringed on another’s trademark.

They go on to cite several Law Review articles and other secondary sources that support their proposal that in certain circumstances Service of Process by email should be allowed. The report is available at the following link: http://bit.ly/963Cwr. The Committee is welcoming comments on the Report at any time, comments should be sent to eservicereport@inta.org.

This committee’s work is yet another example of the ongoing erosion of traditional Service of Process. In my opinion this report accurately and thoroughly points out that traditional means for service of process can be insufficient in circumstances where a defendant is able to hide behind a fictitiously owned website, especially if you take into consideration the modern communication tools available today. There are those within the profession that continue to believe that examples like the one cited above are not a real threat.

If you believe that changes like the one proposed above will stop and do not have the potential to lead to other shifts in the laws and the behaviors of the legal profession you are fooling yourself. Those that argue that electronic service is only allowed after all other methods of service have been exhausted fail to realize that what the rules governing Service of Process allow and what the practices the legal profession employ, sometimes are two totally different things.

If you think the absence of rules formally allowing eService will stop it from happening you are mistaken. I know for a fact that not a day goes by when more and more process is served by means not authorized by codes or statutes including email and other electronic means. That includes Summons, Citations, Subpoenas and other documents that are required to be served personally.

I have come to believe that if the professional process serving profession seeks to maintain a role long-term, it needs to first acknowledge that CHANGE is happening that challenges the professions very existence. The profession also needs to stop being so change-adverse. If the profession comes to the conclusion that it needs to adapt then and only then will it be able to formulate a strategy that enables process servers to retain over the long term the vital role they perform today. That strategy should take into account the cold hard fact that the profession will not stop the march of technological advances that are likely to continue to threaten traditional Service of Process. The strategy should understand and account for the arguments for the change that threatens the profession and in doing so should offer an alternative solution that insures a role for process servers in the increasingly electronic world. And finally, the strategy should look at the big picture and provide for both long and short term goals that seek to insure the profession remains relevant.

The following is an example of what the Notary profession did when it was similarly threatened. Several years ago the National Notary Association (NNA) recognized the threat of eNotarization in their industry. They realized that they needed to be a part of the solution if they if their members were going to retain a role. Approximately four years ago they gathered various notary groups and other interested parties to start a discussion about eNotarization. Today, thanks largely to vision, determination and focus they lead the way forward in eNotarization, keeping their interested parties in business.

The private process serving profession faces similar challenges today. Individual process servers without a strategy for personal and industry development will have a hard time ensuring their long term success.

This challenge is bigger than one association. It requires that all interested parties partner in an effort to create the foundation for a strategy moving forward. Once the foundation is in place, the profession can continue to build and transform the industry to not only keep pace with the legal industry, but also ensure that process servers’ businesses will continue to thrive.

If we do not find a way to clarify and define our role in an electronic world, we risk becoming obsolete. We will not become obsolete if we take charge and become the Masters of Our Own Domain. In order for that to happen we need leadership at a state and national level that understands the challenges we face and more importantly is willing do the hard work necessary to protect, promote and preserve the private process serving profession. The status quo is unacceptable.

This challenge is not much-a-do about nothing. It is about the future of the profession. As always, I welcome your comments.

New York City Council Seeks to Crack Down on Process Servers Who Lie

2010-02-27T06:54:00.000-08:00

Yesterday's New York Times published an article on the topic of Sewer Service. http://www.nytimes.com/2010/02/27/nyregion/27sewer.html

For those that have been following this developing story, you know this is the second effort in recent months by the NYC Council to regulate process servers in NYC. The first effort was unsuccessful primarily because the last session of the council ran out of time to pass the Bill.

This time around in a new session the sponsor has come back with an even stronger effort to further regulate private process servers who operate in the city and who forward process into the city even though they might reside outside the city or even outside the state. The Bill if passed in its current for would require process serving agencies to maintain a $100,000.00 bond and process servers to maintain a $10,000.00 bond.

The Bill also requires process servers to have a GPS device or other so called real-time tracking so that the process server can prove that they were where they claimed to have been at the time of the attempt or service event.

Essentially this means that the process server’s affidavit is no longer good enough! It means that there is no presumption that what the process server is attesting to is factual.

I am told that in order to get a Bond in the amount of $100,000.00, the process serving agency must be credit worthy in at least that amount. I suspect that will eliminate many agencies from being able to comply should this Bill pass.

This bill is a severe over reaction to a problem that came to light when ONE rogue agency was found to have committed sewer service. This bill is an attack on all in the profession and it must be fought and defeated.

The New York Professional Process Servers Association needs your support fighting this measure.

Please consider donating to the effort to fight this measure. You can do so by going to http://www.nysppsa.org/Legislative%20Fund%20form.pdf

The bill can be found here .

Single attempt at notice did not satisfy the Maryland Rules of Civil Procedure.

2010-02-26T08:31:00.000-08:00

Case: Rafael Flanagan v. Department of Human Resources, CA No. 64, Sept. Term 2009. Reported. Opinion by Harrell, J. Filed. Feb. 9, 2010.

Issue: Did leaving a show-cause order under the door of defendant’s last known address provide sufficient notice of his court date?

What The Court Held: Maryland’s highest court ruled that the Maryland Department of Human Resources made a mistake when it had a process server slide under the door of the defendants “last known address” an order that he appear in a Baltimore court to explain why he was in arrears in his child support. That single effort to contact the defendant in 1995 was insufficient to notify him of his court date, thus nullifying his admission that he owed back child support.

The opinion means that notice delivered to the defendants last known address happened in this case is sufficient only with a judge’s permission and only after good-faith efforts to notify the defendant have been unsuccessful or if he or she is trying to evade service.

NY Sewer Service. What's next... Ankle Bracelets?

2010-02-06T18:18:00.000-08:00

For those of you following the New York Attorney General case against William Singler and American Legal Process and the fall-out that has followed might not be surprised to learn that the New York City council is again attempting to pass a law that would further regulate process servers and process serving agencies.

The first such attempt by the NYC council was defeated by the New York Association of Professional Process Servers and NAPPS.

This time around NYC council is coming back with even harsher requirements. NYC council is seeking to track the movements of process servers by some sort of GPS device that would apparently to insure that process servers were where they claimed to have been as reflected on their affidavit of service.

They are also seeking impose stricter licensing requirements including $100,000.00 bonds for each process serving agency and $10,000.00 bond for each process server. It gets better, they also want to impose penalties and create a civil action against process servers who violate any of the provisions of the new law.

I fully understand that the NYC council is seeking to protect the rights of the citizens of New York. That is part of their job after all. I understand that what happened in NY was a serious problem that needed to be addressed. I am not surprised that the governing bodies in NY are seeking to further regulate process servers. I would only hope that the regulation does not go too far. In my opinion this proposed bill does just that. It is a severe over-reaction to what appears to be an isolated instance of one process serving agency allegedly engaged in criminal wrong-doing. That one agency is not representative of the practices of an entire profession.

The New York Process Servers Association can use your help in defeating this proposed law click here to donate.

The following is the proposal that is going to be heard next week by the NYC council.

Int. ______

By Council Member Garodnick

A Local Law

To amend the administrative code of the city of New York, in relation to process servers.

Be it enacted by the Council as follows:

Section 1. Section 20-403 of the administrative code of the city of New York is amended to read as follows:

a. Process server license. It shall be unlawful for any person to do business as, be employed as or perform the services of a process server without a license therefor.

b. Process serving agency license. It shall be unlawful for any process serving agency to assign or distribute process to individual process servers for actual service in the city of New York without a license therefore.

§2. Section 20-404 of the administrative code of the city of New York is amended to read as follows:

a. A process server is a person engaged in the business of serving or one who purports to serve or one who serves personally or by substituted service upon any person, corporation, governmental or political subdivision or agency, a summons, subpoena, notice, citation or other process, directing an appearance or response to a legal action, legal proceeding or administrative proceedings.

b. A process serving agency is any person, firm, partnership, association or corporation, other than an attorney or law firm located in this state or deputized city marshal, who maintains an office, bureau or agency, the purpose of which is to assign or distribute process to individual process servers for actual service in the city of New York.

[b.] c. For the purposes of this subchapter the service of five or more process in any one year shall be deemed to constitute doing business as a process server.

§3. Section 20-406 of the administrative code of the city of New York is amended by adding a new subdivision c to read as follows:

c. Each such applicant for a process server license or renewal thereof shall be required to pass an examination satisfactorily. Such examination shall be under the supervision of the commissioner and shall test the knowledge of the applicant concerning proper service of process within the city of New York and familiarity with relevant laws and rules.

§4. Subchapter 23 of chapter 2 of title 20 of the administrative code of the city of New York is amended by adding new sections, 20-406.1, 20-406.2, 20-406.3 and 20-406.4 to read as follows:

20-406.1 Bond required. a. As a condition of the issuance of a process server license, each applicant for such license or a renewal thereof shall furnish to the commissioner a surety bond executed by the applicant in the sum of ten thousand dollars, payable to the city of New York, and a surety approved by the commissioner. Such bond shall be conditioned upon the applicant's compliance with the provisions of this subchapter and any rules promulgated thereunder, and upon the further condition that the applicant will pay (i) to the city any fine, penalty or other obligation the city imposes relating to a violation of this subchapter and any rules promulgated thereunder, and (ii) to a plaintiff any final judgment recovered in an action arising out of the violation of any of the provisions of this subchapter within thirty days of its imposition. The commissioner may by rule authorize an individual applicant, in lieu of furnishing a bond, to satisfy the requirements of this section by depositing cash in an amount equal to the amount of the surety bond required by this section.

b. A process server licensed under this subchapter who engages in the business of serving process exclusively as an employee of a process serving agency licensed under this subchapter shall not be required to furnish a surety bond pursuant to subdivision (a) of this section.

c. As a condition of the issuance of a process serving agency license, each applicant for such license or a renewal thereof shall furnish to the commissioner a surety bond in the sum of one hundred thousand dollars executed by the applicant payable to the city of New York, and a surety approved by the commissioner. Such bond shall be conditioned upon the applicant's compliance with the provisions of this subchapter and any rules promulgated thereunder, and upon the further condition that the applicant will pay (i) to the city any fine, penalty or other obligation the city imposes relating to a violation of this subchapter and any rules promulgated thereunder, and (ii) to a plaintiff any final judgment recovered in an action arising out of the violation of any of the provisions of this subchapter within thirty days of its imposition. The commissioner may by rule authorize an applicant, in lieu of furnishing a bond, to satisfy the requirements of this section by depositing cash in an amount equal to the amount of the surety bond required by this section.

§20-406.2 Responsibilities of process serving agencies. Every process serving agency licensed under this subchapter shall:

a. Comply with all applicable state and federal laws;

b. be legally responsible for any failure to act in accordance with the laws and rules governing service of process by each process server to whom it has distributed, assigned or delivered process for service;

c. Provide to each process server employed by such agency a written statement indicating the rights of such employee and the obligations of the process serving agency under city, state and federal law. Such statement of rights and obligations shall include, but not be limited to, a general description of employee rights and employer obligations pursuant to laws regarding minimum wage, overtime and hours of work, record keeping, social security payments, unemployment insurance coverage, disability insurance coverage and workers' compensation;

d. Keep on file in its principal place of business for a period of three (3) years a statement for each employee, signed by such employee, indicating that the employee read and understood the statement of rights and obligations such employee received pursuant to subdivision (c) of this section.

§20-406.3 Records, Audits. a. Every process server and process serving agency licensed under this subchapter shall retain records in compliance with section 89-cc of the New York state general business law for no less than seven (7) years of each process served. Such records shall be retained in electronic form. Tampering with any such electronic records shall be prohibited.

b. A process server licensed under this subchapter who engages in the business of serving process exclusively as an employee of a process serving agency licensed under this subchapter shall not be subject to the provisions of subdivision (a) of this section, but shall be required to comply with all other applicable laws.

c. The commissioner may conduct audits of the information required to be kept pursuant to subdivision (a) of this section in order to monitor compliance with this subchapter.

§20-406.4 Educational materials. The commissioner shall develop educational materials to be provided to all process servers and process serving agencies licensed under this subchapter. Such materials shall at a minimum identify the laws and regulations pertaining to service of process in the city of New York.

§ 5. Section 20-408 is REPEALED and a new section 20-408 is added to read as follows:

§20-408 A process server licensed pursuant to this subchapter shall carry and operate at all times during the commission of his or her licensed activities an electronic device that uses a global positioning system, wi-fi device or other such technology as the Commissioner by rule shall prescribe to electronically establish and record the time, date, and location of service. All records created by such electronic device shall be maintained in an electronic database by the process server, or if such process server is acting exclusively as an employee of a process service agency, by the process service agency, for seven (7) years from the date such record is created.

§6. Section 20-409 of the administrative code of the city of New York is amended by adding a new subdivision c to read as follows:

c. Upon application for renewal of a license issued pursuant to this subchapter, applicants subject to subdivision (a) of section 20-406.3 of this subchapter shall certify in writing compliance with the record keeping provisions of such section.

§7. Subchapter 23 of chapter 2 of title 20 of the administrative code of the city of New York is amended by adding new sections 20-409.1 and 20-409.2 to read as follows:

§20-409.1 Violations and penalties. Any person who, after notice and hearing shall be found guilty of violating any provision of this subchapter, shall be punished in accordance with the provisions of chapter one of this title and shall be subject to a penalty of not less than seven hundred dollars nor more than one thousand dollars for each violation.

§20-409.2 Civil Cause of Action. Any person injured by the failure of a process server to act in accordance with the laws and rules governing service of process in New York state, including this subchapter and regulations promulgated thereunder, shall have a cause of action against such process server and process serving agency, which distributed or assigned process for service, in any court of competent jurisdiction for any or all of the following relief:

a. compensatory and punitive damages, provided that punitive damages shall only be awarded in the case of willful failure to serve process;

b. injunctive and declaratory relief;

c. attorneys’ fees and costs; and

d. such other relief as a court may deem appropriate.

§20-409.3 Reporting. Twenty-four months after the local law that added this section becomes effective, the commissioner shall submit a report to the speaker of the council regarding the effectiveness of these provisions on effectuating proper service and improving oversight over the process service industry. Such report shall include, among other things, the results of audits the commissioner has completed of process servers and process serving agencies, including information regarding their compliance with the provisions of this subchapt\er.

8. This local law shall take effect one hundred eighty days after enactment provided, however that the commissioner of consumer affairs shall take all actions necessary for its implementation, including the promulgation of rules, prior to such effective date.

Process Server Pleads Guilty to Fraud, Faces 1-Year Prison Term

2010-01-20T10:05:00.000-08:00

The owner of a Long Island process serving business that put thousands of New Yorkers at risk of default by failing to notify them that they had been sued pleaded guilty Friday to felony fraud, New York Attorney General Andrew Cuomo announced Friday.

William Singler, the president of Lynbrook, N.Y.-based American Legal Process, will receive a jail term of one year for the Class E felony of first-degree scheme to defraud. [Read the criminal complaint (pdf).]

When Singler was arrested in April, his attorney, Corey Winograd of Winograd & Winograd in Manhattan, told the New York Law Journal that his client acknowledged that some of his process servers had not done their job, but claimed his client had not been aware of what was happening.

"He trusted those process servers," Winograd said last spring. "We now know today that some process servers breached that trust."

But in an appearance Friday before Acting Supreme Court Justice Alan L. Honorof of Nassau County, Singler admitted he had signed phony affidavits of service, swearing that court papers had been served on defendants in debt collection suits even though he knew many of his employees had broken the law.

Winograd, in an interview after the plea, said his client is

"taking responsibility for what occurred at his company and the actions of the many process servers who worked for American Legal Process, and he's looking forward to putting this episode behind him and moving on with his life."

As a result of Singler's fraud, many defendants had costly judgments entered against them, according to a statement by Cuomo.

Cuomo said Singler's crime

"impacted lives and caused financial hardship for thousands of New Yorkers,"

many of whom had their bank accounts frozen, their wages garnished and liens put on their homes.

Still pending is a civil action in Erie County against Singler and American Legal Process.

Filed in April, the suit, Cuomo v. Zmod Process Corp., dba American Legal Process, 4228-09, contends that between January 2007 and October 2008, Singler and American Legal Process

"persistently and repeatedly failed to serve New Yorkers in the manner prescribed by law, and have filed, or caused to be filed, thousands of false affidavits of service representing that service was proper."

During this time, there were 13,040 instances in which 55 servers reported they had attempted to deliver papers to a defendant before receiving the documents, according to the felony complaint against Singler.

And on 3,512 occasions, employees of American Legal Process claimed they tried to serve documents, but in fact they would have to have served different defendants in separate locations at the same time, Cuomo said.

Employees also claimed to have made process-serving attempts that would have required them to drive more than 10,000 miles in a single day.

In addition to the civil and criminal actions against Singler, Cuomo brought suit in July against dozens of law firms and two debt collectors seeking to vacate 100,000 defaults throughout New York.

Filed in Erie County Supreme Court on behalf of Chief Administrative Judge Ann Pfau, the suit seeks to vacate all default judgments where the only evidence that a defendant received service notifying him of being sued was based on an affidavit from American Legal Process, Pfau v. Foster & Garbus (pdf), 2009-8236.

The parties are working to resolve the case, according to a spokesman for the Unified Court System.

Under CPLR §308, servers must try to deliver papers three times before being allowed to mail a copy of the suit or "nail" a copy to a defendant's door.

Singler is due to be sentenced on March 24.

Meanwhile, in a separate federal case filed at the end of December, a group of civil rights advocates accused a network of debt collectors, including the law firm of Mel S. Harris and Associates, of civil racketeering, deceptive business practices, and violating federal debt collection law.

Sykes v. Harris and Associates, LLC, 09-civ-8486, was filed on behalf of a class of defaulting lawsuit defendants by the Neighborhood Economic Development Advocacy Project, MFY Legal Services Inc. and the law firm of Emery Celi Brinckerhoff & Abady. The suit claims the defendants used fraudulent debt collection practices to obtain tens of thousands of default judgments against New York residents.

The defendants in the case could not be reached for comment.

Republished with License 01-20-2010 - ALM - Noeleen G.Walder

Electronic Service of Process - Much a-do about nothing?

2010-01-18T16:46:00.000-08:00

Recently Robin Mullin's wrote a three part series on Electronic Service of Process. The series is well written and is a look at what electronic service of process is, the challenges that electronic service of process presents, as well as an in-depth view of how electronic service of process might impact our profession.

I strongly encourage anyone interested in the topic to visit his Blog. I am happy to see others who are passionate about the profession taking the time and effort to share their thoughts and concerns in an educational and meaningful way.

This issue is NOT "much a-do about nothing" like some within the process serving community would have you believe. It deserves our attention and it is my hope that articles like Robin's encourage and open, honest and robust discussion that has been missing for too long.

I really enjoyed Robin writing and observations and opinions. Keep up the good work Robin.

William Singler Owner of American Legal Process Guilty of Fraud

2010-01-16T11:00:00.000-08:00

Singler plead guilty 1-15-10 in Nassau County Supreme Court to one count of first degree scheme to defraud, a class E felony. He is expected to be sentenced on March 24.

Singler admitted that he knew some of his employees didn't properly serve court papers the company was hired to deliver.

Singler broke the law and then lied to cover it up,” said Attorney General Andrew Cuomo. “It is not a victimless crime, but one that impacted lives and caused financial hardship for thousands of New Yorkers. Many had their bank accounts frozen, their wages garnished, and liens put on their homes, all because they were denied their day in court.”

It is being reported that he may get one year in jail. If true, I for one am outraged that someone that is responsible for such a terrible crime committed against thousands of people would only get a year in jail.

He single handedly tarnished the image of professional process servers around the world. I believe that the private process serving community needs to speak up and demand that he and all those that helped perpetrate the alledged crimes be held to account for their actions. That includes the collection law firms that are alleged to have looked the other way when ALP claimed to have had such a high successful service rate.

Anyone in the collection food chain knows the type of results that ALP claimed to be achieving was impossible.

Full story http://bit.ly/5KSarS

Class Action Lawsuit Alleges "Sewer Service" by Collectors & Process Servers

2009-12-31T13:31:00.000-08:00

A New York Times article dated 12-31-09 chronicles the story of a New York family that learned of a judgment against them only after the Marshall's office attempted to enforce the judgment.

In October 2009, a New York consumer rights law firm filed lawsuit alleging violations of the Fair Debt Collections Practices Act in the United States District Court of New York in the Southern District case number 09-CIV-8486 (DC). The complaint was filed against a variety of defendants representing the entire collections chain starting with debt buyers, the law firms they retained and the process serving agency they contracted with.

This case stems from the alleged massive fraud that the NY Attorney General's office is currently investigating. The AG's office filed its own lawsuit earlier this year. The AG's office is attempting to have approximately 100,000 judgments thrown-out because they allege the process serving agency responsible for serving the complaints committed "Sewer Service".

If you want to be blown away by what allegedly took place you need to read the AG's complaint against the process serving agency and approximately 35 collection law firms. In one instance it is alleged that a process traveled over 1000 miles in one day serving complaints all over NY State, many at the exact same time they claimed to have served other defendants.

On December 28, 2009, the complaint filed in the federal court was amended by the plaintiffs making it a Class Action lawsuit. The plaintiff firm claims it could represent over 100,000 victims of judgments won since 2006.

Needless to say this saga continues to cast a negative light upon Debt Buyers, Consumer Collection law firms and Process Servers nationwide. One can only hope that those that are responsible for the alleged fraud in New York are brought to justice.

Is Personal Service of Civil Subpoenas Coming to an End?

2009-12-16T19:32:00.000-08:00

Recently I stumbled upon a website, that as a professional process server for more than 25 years, gave me cause for concern. The site contained a list of Internet service providers, social networking sites and major media giants based in the United States that included contact names, addresses, phone numbers, facsimile numbers, and, in some cases, information about how to serve process upon them electronically.

Companies like AT&T, Facebook and Google have listed their preferred method for subpoena delivery in criminal cases. This brings up the question that if these companies are readily publishing information about how to serve process upon them for criminal cases, why not do the same for the purpose of serving civil or other process? If an attorney stumbled upon this list, what would stop them from sending process electronically in a civil case to these companies?

I decided to contact a few of major companies listed on the website to ask them how to send a civil subpoena for records. The following are copies of real emails I sent and the real responses:

From: Jeff Karotkin [mailto:jkarotkin@onelegal.com]
Sent: Wednesday, November 04, 2009 12:18 PM
To: xxxxxxxx@facebook

Subject: Subpoena for Records

Facebook:

I have a civil subpoena for records to serve upon Facebook. Can I have it sent to this email address and if so what are the proper procedures to insure compliance.

Jeff H. Karotkin
Vice President of Strategic Development
One Legal LLC.

From: [xxxxxxxx@facebook.com]
Sent: Wednesday, November 04, 2009 3:55 PM
To: Jeff Karotkin

Subject: RE: Subpoena for Records

Hello – We are in receipt of you request, please feel free to fax the subpoena to: (xxx) xxx-xxxx.

Please also note a check of $50.00 will need to be sent for processing.

Thank you – Facebook, Inc.

From: Jeff Karotkin
Sent: Wednesday, November 04, 2009 12:11 PM
To: xxxxxxxxxxxxx@cox.com

Subject: Subpoena for Records

Mrs. Riley

I have a civil subpoena for records to serve upon Cox Communications. I was wondering if I can have it sent to this email address or if there is another preferred method for serving the subpoena.

Thanks

Jeff H. Karotkin
Vice President of Strategic Development
One Legal LLC.

From: xxxxxxxxxxxxx@cox.com
Sent: Thursday, November 05, 2009 5:53 AM
To: Jeff Karotkin

Subject: RE: Subpoena for Records

Mr. Karotkin,

You may send your subpoena as a .pdf attachment to this email address.

Subpoena Coordinator
Cox Communications, Inc.
xxxxxxxxxxxxx@cox.com

When a company receives service by fax, email or snail mail today do they care if it was properly served? Since companies are providing information about how to service process upon them, it appears that they do not care. Some companies might even prefer to receive electronic papers because it is simply less hassle.

Electronic communications and technological advances are rapidly changing the world in which we live and work. It was not that long ago that the Internet was not widely used, few companies had websites and Google, Facebook and Twitter didn’t even exist.

Five years ago NAPPS had a panel discussion on eFiling and eService with discussions about these changes might mean to our profession. Many in the room thought that the impact on process servers would be minimal, that electronic service of process would not threaten traditional service of process. Today, we can see these changes being made right before our eyes. There are more than a dozen examples in the news where papers have been served via via Twitter, Facebook, e-mail and even text.

Today, law firms and their clients are demanding that their vendors do business smarter, faster and more efficiently than ever. Gone are the days when law firms mailed secondary service/correspondence. If a firm is still printing, collating, stapling, labeling and mailing documents to opposing counsel they are behind the times.

As technology improves and the legal industry changes, the process serving industry needs to reflect those changes too. The legal industry is using technology to leverage, facilitate and streamline the practice of law and will expect us to follow suit.

The industry is at a crossroads where we have the choice to accept that technology is going to advance, or we choose to ignore it and continue serving papers with blinders on. I believe that if we hope to successfully insure our long-term viability we need to collectively adapt and evolve.

“It is not the strongest of the species that survives, nor the most intelligent that survives. It is the one that is the most adaptable to change. “ Charles Darwin

Several years ago the National Notary Association (NNA) recognized the threat of eNotarization in their industry. They realized that they needed to be a part of the solution if they if their members were going to retain a role. Four years ago they gathered various notary groups and interested parties to start a discussion about eNotarization. Today, thanks largely to vision, determination and focus they lead the way forward in eNotorization, keeping their interested parties in business.

The private process serving profession faces similar challenges today. Individual process servers without a strategy for industry development will have a hard time ensuring their long-term success.

This challenge is bigger than one association, it requires that all interested parties partner in an effort to create the foundation for a strategy moving forward. Once the foundation is in place, we can continue to build and transform our industry to not only keep pace with the legal industry, but also ensure that process servers’ businesses will continue to thrive. If we do not find a way to clarify our role in an electronic world, we risk being obsolete one day very soon.

By Doing Business Online Are You Waiving Your Rights?

2009-12-13T19:07:00.000-08:00

Here is yet another example of how things are changing for the process serving profession… Did you know that when you use many e-commerce websites these days that you have waived your right to service of process by traditional means?

How many of you have actually read those Terms and Conditions before you checked the little square box? Me either, recently I was curious or and actually read the Terms and Conditions on two websites. Below are two examples of what I found in those Terms & Conditions.

“Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notice to it under this waiver and agrees that such service shall constitute good and sufficient service of process and notice thereof.”

Here is another common waiver

"By visiting the Site, you agree that the laws of the State of New York, without regard to principles of conflicts of laws, will govern these Terms of Use and any dispute of any sort that might arise between you and BrainPOP. Any dispute relating in any way to your visit to the Site or to the Content, products or services sold or distributed by BrainPOP or through BrainPOP shall be solely adjudicated in Supreme Court of the State of New York or in the U.S. Federal District Court located in New York County, New York, and you consent and submit to exclusive jurisdiction and venue in such courts and agree to accept service of process by electronic mail."

It is one thing to knowingly waive ones rights to jurisdiction and service of process, it is entirely another when we all know no one reads the terms and conditions online. We just go about our business and check that little box and hit continue without ever knowing we have waived our rights.

The waiver of service and electronic service are challenges to our livelihoods that we start thinking about and talking about. Until we understand the challenge before us, we are not likely to take any action that protects primary/traditional service of process. The type of action that needs to take place should inform and educate process servers as well as the bench, bar and public if it is hopes to be successful. Most importantly, that action needs to enable process servers to retain the vital role they perform today.

Some would have you believe that my desire to inform, educate and encourage an open and robust discussion on the topic of electronic service of process and the erosion of our profession is somehow nefarious. Nothing could be farther from the truth.

Do not be lead astray by those that are ignorant or afraid of change. Do not let their belief that the process serving profession does not need to evolve, stop you from finding a way to remain relevant.

Final FTC Roundtable Discsussion to be held 12-4

2009-12-02T20:33:00.000-08:00

The final Federal Trade Commission Roundtable Discussion is being held later this week in Washington D.C. The event is open to the public and can also be viewed live via webcast.

Once again the roundtable includes a session focused on the Service of Process. The process serving profession is fortunate to have Larry Yellon on the panel representing NAPPS. The session dealing with the service of process is on the agenda first thing the morning of 12-4-09. The published topics related to the service of process are as follows:

For detailed information about the session, the speaker bios, the full agenda and instructions on how to view the session live via webcast please visit the follow FTC webpage.

You Have Been Served Without Ever Leaving Your Desk

2009-11-17T19:38:00.000-08:00

When you think about the act of giving notice/serving process I bet you did not have in mind being served by a posting to your Facebook wall, twitter account, or to your email inbox. Well it seems as though not a week goes by when there is not another instance of electronic service process in the news or being written about in the legal community.

Increasingly our customers and constituents view the physical act of service of process as being out of touch with the times. We can not afford to stand by and read story after story suggest that service of process through social networks and by email is an acceptable or reliable means for effecting service.

The following is a link to an article that appeared in the legal publication South East Texas Record last month. Please check it out the author mentions several of the instances I have written about on my blog and on this forum.

http://bit.ly/1gOny7

The following is the closing line of the article:

“Professional process servers may no longer have to worry about the cat-and-mouse challenges of physically serving defendants, if an online alternative beckons.”

Electronic Service of Process at Home and Abroad

2009-11-12T16:58:00.000-08:00

Recently I happened upon a Draft of a Federal Court Law Review Article, written by Ronald J. Hedges, Kenneth N. Rashbaum and Adam C. Losey. The final version as far as I know has not yet been published.

The article is about Electronic Service of Process at Home and Abroad - Allowing Domestic Electronic Service of Process in the Federal Courts.

The article covers the history of Electronic Service of Process in the Federal Courts going back to the earliest instances where electronic service was allowed by facsimile, as well as, the current rule Federal Rule of Civil Procedure 4(f)(3) that allows in certain circumstance for a foreign defendant to be served electronically.

The article goes on to make reasoned case for why the Federal Rules of Civil Procedures should be amended to keep pace with modern methods of both business and personal communication.

The draft Law Review Article is 22 pages of must read material if you want to gain a better sense of how our constituents, federal practitioners and federal judiciary view the issue of electronic service of process.

The following are just a few of the key points the authors offered in support of amending Federal Rule 4 to allow domestic electronic service of process:

“When the Federal Rules were first drafted, the typewriter and telephone were on the cutting edge of communications technology.”

“While the law hardly advances at the speed of technology, federal courts have adapted to new technology. There is a bevy of precedent for amending the Federal Rules to keep up with technology.”

Another example of federal courts adapting to communications technology is the nationwide use of electronic filing. “[Electronic filing systems] are now in use in 99% of the federal courts.” The use of this electronic filing system “not only replaces the courts’ old electronic docketing and case management systems, but also provides courts the option to have case file documents in electronic format, and to accept filings over the Internet.”

“In a service of process context, there is a strong efficiency argument for the use of email. An email can be sent for little or no cost and can reach the recipient’s inbox literally moments after it is sent.”

“ It is likely that history will repeat itself in the international adoption of domestic and international electronic service of process via email and social networking communications, only this time around the United States will follow the lead of Australia and New Zealand.”

“Even if all the arguments against electronic service of process hold true, when electronic service of process is used as a secondary or tertiary channel of service it is more secure and more reliable than the channels currently used. Federal courts already allow service via means that are less reliable than normal channels, provided that more reliable channels are first exhausted.”

“Technology has evolved to the point that electronic service is superior to many forms of traditional service. Electronic service should now be treated as an equal to paper media by the Federal Rules.”

The entire draft article can be found at the following link:
http://www.fclr.org/fclr/articles/html/2009/hedges.pdf

I suspect a few of us could poke a few holes in the logic supporting their premise. But just a few... The bottom-line in my humble opinion is that the private process serving profession is in big trouble if it does not confront this challenge in a way that forges a path forward that we can live with.

Let us hope it is not too late.

FTC Posts Draft Agenda for the 3rd Roundtable Session

2009-11-04T17:42:00.000-08:00

The third session of the Federal Trade Commission's Roundtable discussions on “Protecting Consumers in Debt Collection Litigation” is set for December 4th in Washington D.C.

The following is the Agenda:

9:00 Introductory Remarks

9:15 Initiating Suits: Service of Process and Consumer Participation

Why aren’t more consumers defending against collection suits?

To what extent are consumers failing to participate in collection suits because they were not served with process? What are the other reasons for failure to participate?

What can courts and others do to increase consumer participation in debt collection suits?

What actions should lawmakers, the courts, the FTC, the industry, or others take to address service of process and consumer participation issues?
There are other topics on the agenda but I thought I would highlight the section that specifically relates to the service of process. The full agenda can be found here.

I understand that NAPPS will have a representative on the panel.

Electronic Court Filing and Electronic Service Presentation 2004

2009-10-29T20:12:00.000-07:00

The following slide show is from a 2004 presentation I gave at a NAPPS Conference. Almost all of it is as relevant today as it was five years ago.

The diagrams that predicted where things were headed have come to pass and are having a negative impact on court filing and process serving businesses from coast to coast.

eFiling and eService Presentation 2004 -

eFiling and eService Presentation 2004 -

SHERIFF TO ACCEPT SERVICE OF SUBPOENAS ELECTRONICALLY

2009-10-17T18:20:00.000-07:00

In Collier County Florida, the public defenders office is slated, by years end, to begin serving subpoenas on law enforcement officials (sheriffs) electronically. This appears to be a collaborate effort and exact details of the system are unknown. While perhaps inevitable, it’s a sad day indeed when you see folks involved in this project saying things like:

“It’s a great thing. It’s a sign of the times…It’s where we’re all headed.” - Charlie Green, Clerk of the Court

“It lets us be sure the people we are serving have actually been served.” - Elizabeth Snow, IT Director, Public Defender

It should be our profession saying these things but it’s not. We should not be surprised if we see more of this given the lack of strategy, leadership and vision in our profession specific to electronic service.

The full story can be found here.

Fraudulent Service of Process being addressed in New York City

2009-10-13T19:31:00.000-07:00

New York City Councilman Garodnick Announces Reform

of Fraudulent Process Service.

Garodnick Announces Reform of Fraudulent Process Service

In the aftermath of Attorney General Andrew Cuomo suing 35 law firms for illegally failing to notify New Yorkers that they were being sued over old debts, Council Member Garodnick announced legislation to protect consumers from fraudulent process service.

Each year, debt collectors suing in New York City Civil Court collect $800 million in judgments. In 80 to 90 percent of those cases, New Yorkers never realize that they have been sued — frequently because the process servers hired by the debt collection law firm never deliver their court papers. The result is a default judgment, which can be used to freeze a bank account and garnish wages, and which ruins a person’s credit.

Council Member Garodnick’s bill would rein in process servers by requiring that they, and the agencies they work for, provide the City a surety bond, or insurance, in order to be licensed to do business in New York City.

“Everyone is responsible for repaying their debts—nothing here changes that,” Council Member Garodnick said. “But our neighbors deserve a chance to defend themselves in court from debt claims, which are often frivolous. It doesn’t help anyone for our neighbors to be put into financial purgatory over debts they never actually incurred.”

Service of Process Via Facebook

2009-10-07T21:28:00.000-07:00

Earlier this year a judge in Alberta, Canada signed an order allowing a defendant to be served by posting the Notice of the Action to the defendants Facebook account.

This is the third instance of Facebook being allowed/ordered for the Service of Process that I am aware of. First in Australia and the second in New Zealand, both occurred in the last 12 months.

This post comes on the heals of a posting regarding Service of Process via Twitter earlier this week. Clearly judges around the world see social networks as being at least as reliable a means for giving notice if not more so than publication when all other methods have failed. I have to admit that I would agree that in certain circumstances service of process via social-networks or by other electronic means makes more sense than service by publication.

I would not dismiss these recent developments as being a fad or a trend. They are important and I believe they demonstrate that the courts and our customers are more and more willing to consider alternate manners of service that only a few short years ago where unthinkable.

Just this evening I received an email from a fellow process server in Nevada. He wrote that he has realized that his court filing business is all but gone come February of next year because the courts in the 8th Judicial District of Nevada has mandated electronic filing.

He admits knew this day was coming. He also admits that he was not prepared for the reality of it hitting him so soon and so hard. He now finds himself wondering how to adjust his business model in order to survive the changes that are happening around him. He is not alone; process serving companies from Seattle to Philadelphia in the last year have found themselves facing the same dilemma.

The Service of Process has remained largely unchanged for more than 100 years. I believe we are fooling ourselves if we think the act of serving process will not see a dramatic change in the years to come.

My point is we have been talking about eFiling and eService at a national level for more than 10 years. We need start preparing ourselves and our business for these and other challenges if we hope to remain relevant in the digital age.

Are we on our own as we face these challenges or will the state and/or national process server associations lead the way? Do those associations even have a role in addressing these challenges? If so, do they have the talent and where-with-all to help insure the profession remains viable for many years to come?

What do you think?

FTC Debt Collection Roundtable Video and Transcripts Now Available

2009-10-06T18:07:00.000-07:00

he Federal Trade Commission held the second of three roundtable sessions around the country last week in San Francisco. The Service of Process has been a topic of discussion in the first two sessions. As you may know, the profession took a few kicks in the gut during the first roundtable in Chicago.

The San Francisco session also had the Service of Process on the agenda. This time around process servers were given an opportunity to participate as part of the panel of speakers. Paul Tamaroff and Andy Estin were on the panel and represented the interests of the private process serving profession. The San Francisco session was less painful to witness but it was not without its moments where the professionalism of the industry was called into question. Both Andy and Paul offered suggestions on how to address the problems.

If you are interested in viewing the video webcast or reading the transcripts of either the Chicago or San Francisco sessions that were dedicated to the Service of Process and Default Judgments. I have provided the following links:

Chicago Webcast: http://www.mobilevideo.net/ftc/080509_ftc_sess1/softv.index.htm

Chicago Transcripts: http://htc-01.media.globix.net/COMP008760MOD1/ftc_web/transcripts/080509_sess1.pdf

San Francisco Webcast: http://www.mobilevideo.net/ftc/093009_ftc_sess1/softv.index.htm

San Francisco Transcripts: http://htc-01.media.globix.net/COMP008760MOD1/ftc_web/transcripts/093009_sess1.pdf

You might want to take an Advil or two first.

Service of Process Via Twitter

2009-10-02T19:15:00.000-07:00

In an ever increasing and troubling trend, yet another court has allowed Service of Process using a social networking site.

Yesterday an English High Court ruled that a court injunction (order) could be served via Twitter. The Order approving this service method is being called the Blaney’s Blarney Order after the subject matter of the litigation. The law firm representing the plaintiff in this case claims this is the first time an order has ever been served via Twitter.

Not so fast... It may not be the first time Twitter was used to provide notice to a party to a lawsuit. Earlier this year a Dutch antipiracy group brought suit against Pirate Bay (a Swedish company accused of hosting illegal downloads) and provided notice via Facebook and a Twitter account claiming they weren't able to locate the company founders. See tweet below.

It is interesting that many of the same issues process servers deal with in the physical world, exist in the virtual world.

- Can't locate the person to serve

- Get creative in serving the documents

- Claim you weren't served

- Serving the wrong person

In a previous post on this blog dated 9/11/09, I asked the question "Is this the future of Service of Process? If you have not already read that post I encourage you to do so, I cited a few other instances of social networks being used to effect service of process.

What do you think?

Chinese Drywall Manufacturer Held in Default - Failed to Repsond to Service of Process

2009-09-28T10:22:00.000-07:00

Over the last month I have mentioned United States Senate Bill 1606 as being important for Process Servers to be aware of. This bill would make it easier for U.S. plaintiffs to effect service of process on foreign manufacturers by requiring them to maintain a registered agent here in the United States.

An example of the problems associated with the current system for effecting service and holding foreign manufactures responsible is a case being heard in Louisiana. The following information is from a blog called the Injury Board:

An Alabama and Florida home builder filed a motion asking the court to rule against Chinese Drywall Manufacturer, because the company had not responded to the lawsuit after the builder was finally able to serve the company in China this summer.

The ruling came during a hearing taking place in New Orleans, LA, where dozens of lawsuits against foreign manufacturers, building suppliers, and homebuilders have been consolidated.

The Foreign Manufacturers Legal Accountability Act of 2009, introduced this summer, will make it easier to hold foreign manufacturers accountable in the U.S. court system by doing several things:

Requires manufacturers to have an “agent” located in at least one state where the company does business that would accept service of process for any civil and regulatory claims.

Companies would consent to state and federal jurisdiction, holding foreign manufacturers accountable to those judicial standards

For more detalis about this story please visit InjuryBoard.com http://bit.ly/3Adqzz

CA Appellate Court Rules on SOP pursuant to Hague Convention

2009-09-24T15:22:00.000-07:00

CA Appellate Court rules that International service of process pursuant to Hague not necessary to obtain jurisdiction over Japanese Company. The opinion stated in part the following:

This court issued an OSC in response to this petition for writ of mandate because it presents an issue of some public importance that has not yet been squarely faced by a California state court, in a published opinion, in this particular context: The question of whether a Japanese manufacturer can be served under California law simply by serving the Japanese manufacturer’s American subsidiary. The trial court ruled that a Japanese manufacturer could indeed be validly served that way. The method just seemed too easy a way to get around the Hague Service Convention and we scheduled an OSC on the petition to give us the chance to study the issue.

On review, however, it turns out that, yes, it really is that easy. And not only that, there is nothing this court, as a matter of California common law, can do about it. We are a court under authority, and there is a non-overruled, non-distinguishable California Supreme Court case, Cosper v. Smith & Wesson Arms Co. (1959) 53 Cal.2d 77, that makes service on the California representative of a foreign parent valid — that is, valid as to the foreign parent — under California law. And not only that, but there is a 1988 federal United States Supreme Court case, Volkswagenwerk Aktiengesellschaft v. Schlunk, supra, 486 U.S. 694 (Schlunk), that says when service is valid under state law on the American subsidiary of a foreign manufacturer, there is no need to serve papers in accord with the Hague Service Convention. Accordingly, we have no choice but to deny the petition for writ of mandate.

The following link will take you to the published decision. http://bit.ly/h5kbj

C.A. Upholds Default in Malpractice Action Against Los Angeles Attorney

2009-09-24T14:15:00.000-07:00

Here is a case of interest that upholds Substituted Service on Employee of Private Postal Facility as being valid by Appellate Panel.

The following is a link to the Metropolitan News article.

http://bit.ly/4G6tKm

Electronic Court Filing in Washington D.C. Deflates Bicycle Messenger Business

2009-09-19T12:31:00.000-07:00

eFiling continues to have a negative impact on messengers...In Washington D.C. This is the latest in a series recent instances where the traditional messenger/courier companies are being negatively impacted by the progress that eFiling affords.

District of Columbia Courts - Washington Post Story http://bit.ly/c6WkB

King County Courts - Seattle Times Story http://bit.ly/Lhyn9

Philadelphia County Courts - Law.com Story http://bit.ly/dufxh

New York City Courts - ABA Journal Story http://bit.ly/JMmG2

San Francisco County Courts - Wired Magazine Story http://bit.ly/gjo4o San Francisco Chronicle Story - http://bit.ly/3gfHoN

I wonder at what point will the Process Serving profession take note of these developments and realize that traditional service of process is also at risk of being transformed by the implementation of technologies that can bring tremendous efficiencies to moving documents and information from one place to another in a blink of the eye...

All that stands in the way of this becoming a reality is the legal community embracing change. The Process Serving community can play an important role in shaping the future of the industry, but for some reason has not stepped up to the plate...

I started a Yahoo Group for Process Servers

2009-09-17T21:45:00.000-07:00

Service of Process Looking Froward - Process Server Group

Purpose:

- Discuss issues facing the profession

- Expand your referral network

- Service of Process related product reviews

Service of Process Looking Forward was created to provide process servers and related litigation support providers with a forum to discuss, debate and otherwise share information about the challenges facing the process serving profession.

Service of Process Looking Forward seeks to continue to establish itself as a blog that provides the most relevant, timely and actionable information to the Process Serving Profession.

To join click the link in the upper righ column of this blog.

Thank You-
Jeff H. Karotkin, Moderator

Service of Process Best Practices Adopted in Michigan

2009-09-14T17:52:00.000-07:00

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.

Is this the Future of Service of Process?

2009-09-11T13:02:00.000-07:00

Australian Judge Approves sending default notices via Facebook

In December last year the social networking site Facebook was used to notify a couple that they lost their home after defaulting on a loan. The court approved this method of delivery only after there had been numerous failed attempts to effect service at the couple's home and by email.

Australian courts have in the past given permission to serve process by standard e-mail and text messages when it was not possible to effect service on the subjects in person.

Facebook released a statement following the court ruling. "We're pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication. The ruling is also an interesting indication of the increasing role that Facebook is playing in people's lives".

FACEBOOK SOP - PART TWO – THIS TIME IN NEW ZEALAND

Last year, it was an Australian court that allowed documents to be served on two defendants via the very popular social network site Facebook. Now, a New Zealand court has also has agreed; New Zealand High Court Associate Justice David Glendall approved the delivery of court papers via a Facebook notification to the account of a man being sued. One can only hope this Facebook trend will soon die of natural causes.

For more information about the New Zealand case, please visit , NZ court papers can be served via Facebook, judge rules, March 16, 2009, written by Ian Llewellyn http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10561970

Process Service by E-Mail - New York

A Snyder v. Alternate Energy Inc., a New York City Civil Court decision from last year allows e-mail service in certain circumstances.

For a very thorough review of this case please visit the following blog post:

The Volokh Conspiracy http://volokh.com/posts/1210268085.shtml

Aside from the obvious implications of this court decision, what I find particularly fascinating is the comments to the author’s blog. The comments mostly from lawyers both applaud the decision and question just how effective traditional email can be for giving actual notice. Great comments! Check out the blog to gain some insight into what attorney’s think about this trend.

eService Pursuant to Rule 4 (f) of the FRCP

Earlier this year, a Virginia judge was asked to approve e-mail service of process.

Lawyers for indicted former Rep. William J. Jefferson, D-La., have asked Alexandria U.S. District Judge T.S. Ellis III to allow service of process by e-mail on a hard to find international witness. The actual Court Motion can be found at: http://bit.ly/WWLXo

2nd FTC Roundtable to Discuss Debt Collection Arbitration and Litigation

2009-09-11T08:50:00.000-07:00

The second round of at least three Federal Trade Commission Roundtable discussions is scheduled for September 29th and 30th in San Francisco, CA.

Like the last session in Chicago the roundtable discussion will cover topics in consumer debt collection arbitration proceedings, such as the role of consumer choice, perceptions of bias, transparency of results, post-decision issues, and future directions in arbitration of consumer debts.

The second day will cover topics in consumer debt collection litigation proceedings, such as service of process, consumer default rates, time-barred debts, evidentiary requirements in collection actions, and post-judgment issues.

It is my understanding that the National Association of Professional Process Servers (NAPPS) has submitted public comments and has been invited to participate on the second day.

I can only hope that the private process serving profession will not take the abuse it took during the Chicago roundtable. I trust process servers will be well represented.

If you are interested in attending or watching a live webcast of the roundtable, please visit the following link for more information. http://bit.ly/3jZmO1

United States Senate Bill 1606. Good for Process Servers?

2009-08-29T13:45:00.000-07:00

U.S. Senate Bill 1606 was introduced in the current session of congress. It would require foreign manufacturers of products imported into the United States to establish registered agents in the United States who are authorized to accept service of process against such manufacturers, and for other purposes.

http://www.govtrack.us/congress/bill.xpd?bill=s111-1606%20

Is this a good thing for private process servers? It appears to me that this bill in its current form would take a step toward leveling the playing field for domestic and foreign manufacturers that produce products that harm U.S. consumers.

I fail to see how that is a bad thing. I am sure it could be argued than it might drive some prices of products up that are imported into the U.S. because foreign manufacturers would be more likely to be held accountable for faulty products.

One reason they are not currently held accountable is because it is very expensive and time consuming to go after foreign manufacturers. One of the expensive and time consuming hurdles is the act of serving process internationally. It appears this bill removes that hurdle. Because the service of process on foreign entities is time consuming and expensive and requires a professional that specializes in providing these services. For a select few process serving agencies this bill could adversely impact their business.

For the vast majority of process servers this bill could result in more cases being filed against foreign manufactures and in turn mean more primary service of process, more discovery as well as more secondary service of process to be served domestically.

I have had a few discussions with fellow process servers and most feel this bill is a positive step forward for the private process server in the United States. A few other process servers are not so sure. Personally, I fall into the camp that would support the bill in its current form.

What do you think? I raise the question because nobody else is. I raise the question to create awareness about this bill. A few in the NAPPS leadership are aware of the bill. Thus far it has not been assigned to the legislative committee but is however being monitored by the International Committee. I do not know about you but I do not know what that means.

I believe the NAPPS leadership needs to hear form you on this topic; otherwise they will operate in a vacuum believing that they know what is in your best interest. Maybe they do, that is why they were elected right?

I believe what you think is more important than letting this issue remain quite.

This post represents my personal observations and should not be construed to be the opinion or position of anyone else or any organization.

U.S. Senate Bill 1606 Regarding Service of Process

2009-08-25T16:33:00.001-07:00

Process Servers - ServeNow.com | Find a Process Server

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Private Process Servers - Scapegoats!

2009-08-25T09:46:00.000-07:00

Earlier this month the Federal Trade Commission held a two day roundtable discussion in Chicago to address debt collection litigation and arbitration. The opening session was on the following topics:

Initiating Suits - Default Judgments and Service of Process.

The Panel was made up of approximately fifteen speakers ranging from Judges, Professors, Consumer Advocates, Debt Buyers and Collection Lawyers.

Over the course of an hour or so process servers took a beating. It was strongly suggested that the high default rates associated with consumer debt collection cases nationally were the result of among other things improper service of process, a complete lack of service or "sewer service".

By now, anyone that is paying attention to the challenges facing the public image of the private process serving profession has read about the situation in New York where it is alleged that a process serving agency was not properly serving collection law suits for some of the largest collection law firms in the country. Currently the New York Attorney General is investigating the practices of process serving agency in question and has suggested that as many as 100,000 default judgments may be thrown out or set aside. It is also worth noting that the AG is also focusing on the collection law firms as well and has indicated that they had a duty to oversee the process serving agency whose practices have come into question.

Needless to say, the panel was fully aware of this story and others such instances. The result was more than an hour focused on this issue. The panel discussions went on over a two day period and throughout the sessions the process serving issues continued to be raised.

Having sat through the webcast of this event a few comments were most troubling. They are not verbatim because I have not read the official transcript yet, so I will paraphrase:

• Speaker - Why isn't the National Association of Professional Process Servers here?
• Speaker - I am not sure that such an organization even exists.

• Speaker - Process servers should be subject to the Fair Debt Collection Practices Act (FDCPA)
• Speaker - I would like to see several things that should be define what we see as unfair deceptive practice. First the filing of a false return of service in a collection case.

• Speaker - 85 to 95% of collection cases result in defaults. The high default rate means no process is being served, we need to require servers to keep log and they should be forced to make them public.

• Speaker - I think the three biggest problems that I see, first one is one that has not been redressed by the statutes yet and that's the service of process. It is a problem that does not start with judicial supervision. It starts with the process server making a decision to do something outside the courtroom namely not serve that process on the defendant.

To be fair, process servers were not the only industry that took heat. The debt buyers, collection agencies, and collection law firms took their fair share of the focus.

The image of process servers in my opinion is at an all time low. Even in the best of times we are about as popular as the tax man. I believe the current problems are a result of a few bad apples, but you would not know that if you were reading all the bad PR. It is time that professional process servers start policing their own and get serious about addressing their image problem.

If you are interested in seeing the webcasts for yourself and reading the transcripts of the sessions, please visit http://www2.ftc.gov/bcp/workshops/debtcollectround/#090805 for all the information. You will also find information at that link on the next roundtable discussion in San Francisco, CA, next month.

CHANGE! - Is the Process Serving Profession doing enough to remain relevant?

2009-08-24T17:36:00.000-07:00

Change – what is it and what does it mean?

If you Google “change” you will find dozens of definitions… for the purposes of this discussion, the change I am referring to could also be referred to as “shift” or “shift happens” or maybe even more accurately “shift is happening all around us”.

The change and shift that is happening all around us is difficult to measure as it is in constant movement and is even more difficult to stay ahead of. Whether we like it or not, change and shift does not care what we think. Change does not care what we believe; it does care if we would like things to stay the same in order to preserve the integrity of our profession. I have heard some say that the best we can do is acknowledge that the world is changing and attempt to manage how that change might affect the future of our profession. I believe we can do better; I believe we must embrace change if we hope to be successful.

Over the last five years or so, I have participated on a few panel discussions about what is happening in the courts, with a focus on how eFiling and eService and how it is effecting the process serving profession. During the first of these panel discussions five years ago I presented some information about the RIO case. That case for those of you who are not familiar with it was one of the first Appellate Court cases that allowed a Summons and Complaint to be served electronically. Since then there have been several cases that have cited RIO and that have allowed for e-service under similar circumstances. My point is what might not seem like a big deal might actually end up being the catalyst for more dramatic change or the shift in the laws and practices that effect the service of process.

Ten years ago, who would have predicted that there would be process serving agencies today that operate almost every aspect of their business electronically? No physical paper is picked up by or received by the process serving agency. Where all assignments are placed online, received online and dispatched electronically all without touching a single sheet of paper. All proofs of service, all status reports and all invoices are sent to the customers electronically. No paper at all. Yes they still need to serve a paper document. Sound far fetched? It is already happening.

Process Servers customers are eFiling in jurisdictions all over the country. In some cases those customers are not generating paper at all. They are either signing the electronic document digitally or not at all…

My point is the adoption of technology is effecting how law firms interact with the courts, opposing counsel, their customers and their vendors. Technology is also enabling process serving companies some of the same advantages. One might argue that a logical extension of the use of technology is that electronic service of process might become more and more prevalent. Mind you it has not become common; it is the exception rather than the rule. But make no mistake, that change is coming. I am not suggesting process servers role over and let change happen to them. On the contrary I am pointing out that process servers have the power to decide if we want to be part of the solution and effect change that helps protect the integrity of the profession. I am suggesting that process servers must protect a key element of due process by insisting that no matter what change or shift happens the concept of a disinterested third party that can attest to the facts related to the service of process is vital and necessary to insure that parties’ rights are protected and preserved.

If you doubt for a moment that the private process serving profession will not face the threat of process being served electronically on a scale that we may not be able to imagine, I invite you visit the following link to a video clip and then ask yourself if it is possible. http://www.youtube.com/watch?v=jpEnFwiqdx8

I believe that process servers will see this threat realized other countries first, like India, China, Great Britain, South Africa, Australia and New Zealand. It has already happened in New Zealand and Australia earlier this year. In both countries, courts have allowed instances of service of process electronically to a defendant’s Facebook account.

On the home front all it would take to get the ball rolling is an amendment to Rule 4 of the Federal Rules of Civil Procedure. Such an amendment has been suggested by some that believe it is a simple as adding the following language to Rule 4(e) (3).

The following section was reprinted from an article written by Jeremy Colby, Esq a partner at the New York firm Webster Szanyi LLP in 2006:

By adding the following language to Rule 4(e) (3)

"by delivering a copy of the summons and of the complaint to the individual via

electronic means such as electronic mail or facsimile where directed by the court.”

That coupled with a corresponding amendment to Rule 4(h) (1) as follows:

“in a judicial district of the United States in the manner prescribed for individuals by subdivisions (e) (1) or (e) (3), or by delivering a copy of the summons and complaint . . . .”

Amending Rule 4(e) and Rule 4(h)(1) in this manner would permit e-SOP upon individuals and corporate entities inside the United States in the same manner that is currently allowed under Rule 4(f)(3) for service outside the United States and for actions pending in the federal courts.

Such an amendment could lead to a disruption to the traditional manners of effecting service of process not just in the federal courts but in the state courts that follow the federal rules.

Mr. Colby’s article is the most comprehensive I have seen on the topic of electronic service of process and is a must read if you want to understand the history of electronic service of process and want to have a glimpse of what the future might hold if the profession does not embrace change and make it work for them. If you would like a copy of his article please send me an email requesting same and I will forward it to you.

What does ALL this mean? What are process servers supposed to do? What is their vision for the future? How will they remain relevant? What can NAPPS or other professional process serving organizations do to protect, promote and preserve the private process serving profession?

I challenge you to start asking yourself, the NAPPS leadership and the leadership of your state association these important questions. Together through a collaborative effort utilizing the collective skills and resources I believe process servers can start to formulate a thoughtful and proactive approach to address these challenges. I believe in order to effect change you must EMBRACE CHANGE.