Service of Process by Email.

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. 
 
Find us on facebook at http://www.facebook.com/#!/groups/serviceofprocess/ 

Process Servers Thrown Under the Buss?

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?

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

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

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

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!

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

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?

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.

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?

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

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

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

In two sworn Affidavits signed by licensed Process Server LIZ MILLS, she states that because she is concerned about her personal integrity and the integrity of her profession, and having therefore reviewed several documents 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 signed the aforementioned document and the signature appearing on the document is unequivocally not mine.”

“I have also reviewed Returns of Service dated 1/3/09 for Jerry Berman and Heidi Berman.  I never signed the aforementioned documents in front of a Notary Public at any time.  The signatures on the Returns of Service dated 6/17/08 are unequivocally not mine.”

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

 

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

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

Posted by Jeff Karotkin

Florida State Bar Proposes Mandatory eFiling and eService Statewide

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. 

1. 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.                                                                                 
2. 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.   
3. 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.   
4. 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!

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!

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

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

“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

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

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

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

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

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

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

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

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