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.
Thursday, December 31, 2009
Wednesday, December 16, 2009
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:
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.
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.
Sunday, December 13, 2009
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.
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.
Wednesday, December 2, 2009
Final FTC Roundtable Discsussion to be held 12-4
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.
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