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

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?

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 eNotarization, 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?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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?

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

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?

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

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Private Process Servers - Scapegoats!

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?

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.