On the 10th of March, 2017, the Missouri Creditors Bar Association, gave a class to several process servers throughout the state of Missouri and Illinois. The class was to address FDCPA regulations and potential violations so that processors may be trained on the act with respect to service of process.
Author Archives: Kellerman Investigations
Summary of the Nonprofit Revitalization Act of 2013
The Nonprofit Revitalization Act brings reform in two main areas:
Enhancing nonprofit governance and oversight to prevent fraud and improve public trust; and Reducing unnecessary and outdated burdens on nonprofits.
The Nonprofit Revitalization Act gives New York the strongest nonprofit governance regime in the country. The law:
Ensures sound financial management by requiring that charities’ boards perform active oversight over financial audits. Boards will be responsible for retaining independent auditors and reviewing results of the audit. At larger charities (over $1 million in annual revenue), the board or audit committee will be required to follow additional oversight procedures.
Prevents conflicts of interestby requiring that transactions between a nonprofit and insiders who stand to benefit be fully disclosed and that nonprofit boards determine they are fair, reasonable, and in organizations’ best interests. When a charity engages in a substantial transaction with an insider, the board will have to consider alternatives and document its basis for choosing the insider transaction.
Strengthens the Attorney General’s power to police fraud and abuse by granting clear power to bring judicial proceedings to unwind interested-party transactions.
Ensures board independenceby prohibiting any employee of a nonprofit from also serving as chair of its board.
Promotes good governance by requiring all nonprofits to adopt conflict of interest policies and those with over $1 million in annual revenue and 20 or more employees to adopt whistleblower policies.
Attorney General Schneiderman’s Nonprofit Revitalization Act also streamlines and modernizes New York law to remove unnecessary burdens, save taxpayer dollars, and help nonprofits focus resources on providing services by:
Streamlining procedures for nonprofit mergers, property sales and corporate dissolutions, so that funds needed for ongoing charitable programs are not wasted on unnecessary red tape;
Modernizing laws to allow nonprofits to conduct their affairs more efficiently,such as permitting nonprofits to use email and video technology for meetings and allowing boards to delegate the approval of small transactions to committees; and
Eliminating unnecessary and costly requirements for nonprofits forming in New York,saving nonprofits money and time and allowing them to commence charitable programs more quickly.
A link to the article: https://ag.ny.gov/press-release/ag-schneidermans-nonprofit-revitalization-act-signed-law
NonProfit Conflicts Of Interest, Governance and Fraud Slideplayer Slide Deck.
Although federal courts and many state courts only require that a process server be 18 years of age or older and a non-party, most process servers are representatives of private service of process businesses or certain law enforcement officers. For federal cases, a marshal may be used. In state cases, a sheriff’s department officer may be used.
Benefits of Using a Professional Process Server
Professional process servers may provide a variety of benefits over using a sheriff’s department or marshal for service. Here are a few such reasons to use a professional process server.
Speed of Service
Many lawyers and paralegals report that professional process servers provide faster service. Some process servers may attempt their first delivery within one to three days of receiving the necessary documents. In contrast, sheriff’s departments may take longer because there are generally other things that the department is focused on, such as curtailing crime or handling prisoner transports. Faster service is important in cases that have a quick turnaround or that require process within a specified number of days.
Knowledge of Laws
While sheriff’s offices must worry about a wide range of laws related to criminal and civil matters, professional process service companies tend to only need to be concerned with laws related to providing effective service. They are commonly well-versed in rules related to process serving, including what time of day valid process can be completed, whether they can leave legal documents with another responsible person in the household, whether there are restrictions pertaining to where the service can be completed and whether service is prohibited on weekends or holidays. If a rule regarding process is violated, the case may be dismissed on procedural grounds or delayed if process needs to be repeated.
A sheriff’s department is usually only allowed to provide service for state and local cases. If a federal case is involved, a professional process server may still be able to provide process.
Many professional process servers are committed to successfully serving the defendant. If a defendant is not available for service at a particular date and time, the professional process server will likely repeat attempted service more times than a sheriff’s department.
Providing process is just one small aspect of a sheriff’s department job. If a particular officer does not perform this function in a respectful manner, he or she will likely still have a job. However, professional process servers rely on maintaining a good reputation with lawyers, paralegals, legal assistants and private parties. A customer can go elsewhere if he or she is not satisfied with customer service, so professional process servers are generally more concerned with providing good customer service.
Some professional process servers may charge a lower cost than the sheriff’s department. Additionally, their quote may include multiple attempts to serve the defendant and for necessary travel costs, whereas a sheriff’s department may add on these additional costs.
Professional process servers may honor special requests made by clients. For example, they may travel to a certain location to serve the party or wait for a certain time of day.
Hiring a Professional Process Server
Not all professional process servers are the same. As in any business, you will see a difference in quality, price and effectiveness. Here are a few strategies to implement to ensure that you hire a reputable process server:
• Verification process – Verify that the process server has all necessary documents, which may include a license, insurance and bond.
• Reputation check – Look for any problems with the process server’s reputation by checking the company’s website, online forums for complaints and the Better Business Bureau. Also, ask for the names and numbers of former clients so that you can personally ask about their experiences.
• Experience Inquiries – Before agreeing to hire the company, check how long it has been in business, its success rate and if it has any particular area of expertise.
• Agreement – Ask for a written agreement that outlines the fee structure and whether there are any additional fees for multiple attempts and mileage.
• Detailed Instructions – Give the process server detailed instructions related to service. For example, give him or her a picture of the person to be served, his or her name, where service should be completed and which documents are to be filed. Also, provide details about how you should be notified of any updates.
PROCESS SERVING STANDARDS SUMMIT
Recommended Process Serving Standards for the Collection Industry
All process servers and process serving companies should always conduct themselves in an honest, respectful, professional and ethical manner and avoid even the appearance of improper behavior.
A.GPS verified/time/date-stamped record of every attempt evidencing the service location
B.Full description of the individual served or complete explanation for non-service in return of service documents as required by the jurisdiction
Full description should include first and last name and relationship and if name and/or relationship not given description that name and/or relationship was refused
C.Process Server must be the one signing the return, no one can sign another’s return
If a notary is required, compliance with state law as to notary attestation is mandatory
Signatures on original affidavits need to be originals and cannot be images, no one can have imaged signatures of the process server so that there is no potential for misuse, with the exception of states where an e-signature process is permitted and is utilized within the law
D.Server compensation programs based on successful versus non-successful serves should not be utilized
Success-based compensation systems provide opportunity for falsified affidavits of service
Individual process servers should be compensated by their process serving company at the same rate for successful serves and unsuccessful serves; and where not compensated at the same rate process serving companies should provide disclosure to their clients.
E.Written compliance program
All process service companies should have a written compliance program
The compliance program should include penalties for non-compliance up to and including termination
The compliance program should designate a Chief Compliance Officer who is responsible for implementing and managing the program
The written compliance program should document steps taken to ensure compliance with local, state, and federal laws
The written compliance program should be updated on regular basis by the Chief Compliance Officer
The written compliance program should be made available on-demand by the process service company’s clients
F.Procedure should be in place to keep abreast on court decisions and new laws impacting process serving in the states where they operate
G.Company must maintain necessary corporate licensing, registrations, bonding and insurance for every state where company operates
H.Monitoring of individual process servers for active state/county licenses and bonding
As well as active driver’s licenses and automobile liability insurance
National criminal background checks going back at least seven years for new process servers with felony or any other crimes of moral turpitude convictions being a hiring disqualifier
National criminal background rechecking annually
I.The process serving company should maintain full transparency for each client providing status information and all information regarding active and inactive accounts
Copies of all service documents, images, server handwritten worksheets and GPS information should be available
J.Any sub-server company hired by the process serving companies should be in compliance with these standards
Any time a sub-server is used for service, advance notice should be given to the client
II.Internal and External Audits
Regular internal auditing of process server activity and documents for completeness and accuracy
Feasibility scoring of the time between all service attempts to identify unrealistic over-performance of their route
Cross-checking that all server attempts are within legal days and hours
Monitoring the results of each server’s attempts for unrealistic performance
At any given time, without warning, clients may audit process serving companies either in person or remotely
Responses from process serving companies should be immediate as long as requests are reasonable
III.Process Server Education
A.Education program, including relevant creditor/collector regulations, particularly for new servers (where no licensing or training is provided by the licensing authorities)
B.Continuing education every two years (unless mandated by state)
IV.Engagement of Process Serving Companies
A. Mutually acceptable written contract should be in place between process serving companies and each of their clients
The contract with each client should define the nature of the service relationship, the importance of confidentiality, service standards and time-frames, service fees, parameters for record retention, the client’s right to audit, licensing requirements, indemnification of the client, data transmission security, sub-server requirements, payment and billing requirements, insurance requirements, and warranties.
V.Conflicts of Interest
A.Law firms or their partners should not have any ownership position in the process serving companies that the law firm uses without full and total disclosure to all of the law firm’s litigation clients
And family relatives (or spouses) of law firm partners (or spouses) should not have an ownership position in the process serving companies that the law firm uses without full and total disclosure to all of the law firm’s litigation clients.
Let me give you one good reason why you should carefully review affidavits of service from your process server: Street-Dybdahl v. Nguyet Huynh, 157 Wn. App. 408 (2010). This prudent practice especially holds true if you’re filing suit just before the statute of limitations runs on your client’s claim.
David Streeter-Dybdahl was hurt in a car accident in late September 2005. On Sept. 18, 2008, only two days before the statute of limitations ran, he filed a negligence suit against the other driver, Nguyet Huynh, in King County Superior Court.
On Nov. 20, 2008, defense counsel called Streeter-Dybdahl’s attorney and asked for proof and confirmation of service. There was no immediate response. Instead, only three days later, a process server tried to serve the complaint on Huynh at the Seattle address listed in the police report.
In his declaration of service, the process server said that he personally delivered the pleadings to Nguyet Huynh at defendant’s “residence and usual place of abode.” The recipient was described as a male Asian in his 30’s with brown hair, 4’10” tall, and weighing 140 pounds. There was one major problem with this description, however, as the real Nguyet Huynh is a female Asian.
On Dec. 23, 2008, Huynh answered the complaint and asserted insufficient service as an affirmative defense. By that time the 90-day tolling provision of RCW 4.16.170 had expired, so Streeter-Dybdahl didn’t have the option of again trying to serve the defendant.
Huynh later moved to dismiss, arguing that she had never been personally served and that she didn’t live at the Seattle address where the complaint was dropped off. In her supporting declaration, she said she is 5’1” tall and weighs 110 pounds, and that her husband is 49 years old and 5’3” tall (which ruled out any inference that her husband had received the papers). Huynh also said that she moved from the Seattle address to Lynnwood in 2002, and that she moved to her current Lynnwood home in April 2008. For good measure, she also submitted property records confirming that she bought the property at that time.
In his opposition, Streeter-Dybdahl submitted records from the Department of Licensing reflecting that Huynh had listed the Seattle residence as her current address since January 2006. He also offered King County records showing that Huynh had a prior ownership interest in the Seattle property, which she quitclaimed in 2006. (I’m not sure how that helped his cause, unless Streeter-Dybdahl was trying to impeach Huynh’s testimony that she had lived in Lynnwood since 2002.) And predictably, Streeter-Dybdahl further noted that the Seattle address was referenced in the police report as the defendant’s address.
The trial court also considered testimony from Huynh’s brother, who was living at the Seattle address when service was attempted. Although he apparently fit the description of the male described in the affidavit of service, the brother denied at his deposition that he ever saw or received the summons and complaint. He also testified that Huynh moved out of the Seattle residence around 2003 or 2004, and that she only came by once or twice a month to collect mail.
Although the trial court denied Hyunh’s motion to dismiss, the Court of Appeals (Division One) granted her motion for discretionary review (rarely a good sign for the party who initially prevails).
At the outset, Division One discussed the applicable procedural rules when an insufficient service defense is made. They aren’t too complicated:
1. The plaintiff has the initial burden of proof to establish a prima facie case of sufficient service.
2. An affidavit of service is presumptively correct.
3. The defendant must show service was improper by clear and convincing evidence.
Under the relevant statute, a defendant who is not served personally can also be served “by leaving a copy of the summons at the house of his or her usual abode with some person of suitable age and discretion then resident therein.” RCW 4.28.080(15). As the Court of Appeals noted:
The term “‘[u]sual place of abode must be taken to mean such center of one’s domestic activity that service left with a family member is reasonably calculated to come to one’s attention within the statutory period for [the] defendant to appear.’”
157 Wn. App. at 413 (quoting from Sheldon v. Fettig, 129 Wn.2d 601 (1996)) (my emphasis).
Since Streeter-Dybdahl conceded that Huynh hadn’t been personally served, the issue was whether she had been validly served by substitute service. Resolving this question in Huynh’s favor, the Court of Appeals concluded that the record failed to establish that the Seattle address was the “center of her domestic activity.” For one thing, said the court, using a particular address for a “limited purpose” – e.g., listing it with DOL as a current address – isn’t a “critical factor” in determining this issue. Moreover, the court highlighted the brother’s testimony about how Huynh had moved out of the house in 2003 or 2004 and only came by once or twice a month to collect mail.
In Sheldon v. Fettig, supra, the Washington Supreme Court ruled that under certain circumstances, a defendant can have more than one house of abode if each is a center of domestic activity. In that case, substitute service was deemed proper because the defendant was a flight attendant who split time between her apartment in Chicago and her parents’ home in Seattle. But according to Division One, Sheldon was distinguishable:
[T]here was no evidence to suggest that Huynh actually resided at the Seattle house, much less split time between that house and her Lynnwood home. While Streeter-Dybdahl places much weight on the fact that mail was kept in a special box for Huynh at the Seattle house, there is no evidence that she was immediately notified or aware when mail came for her at that address; it was simply kept there for her in the event she came by. Such facts do not suggest that the Seattle house was the center of her domestic activity and that service left with a family member there is reasonably calculated to come to her attention within the statutory period for her to appear.
157 Wn. App. at 415.
As a fallback argument, Streeter-Dybdahl also contended that Huynh had waived her claim of insufficient service. As Division One observed, a defendant can waive this defense by engaging in dilatory conduct or conduct inconsistent with asserting the defense. For example, in Lybbert v. Grant County, 141 Wn.2d 29 (2000), waiver was found where the defendant “did not plead insufficient service, engaged in several months of discovery, discussed mediation, failed to respond to interrogatories inquiring about a possible insufficient service defense, and then asserted the defense after the statute of limitations ran.” The Court of Appeals further noted that to establish waiver, the plaintiff must show either “willful evasion of process,” or that by “lying in wait,” the defendant had deprived the plaintiff of the chance to fix the service defect. But none of those facts were present here. The record instead established, said Division One, that the process server mistakenly believed that he had served Huynh – and that Streeter-Dybdahl then failed to correct his error before the service deadline passed.
In sum, Street-Dybdahl v. Nguyet Huynh is another poignant reminder that defective service of process can be fatal to a given plaintiff’s claim. The best way to avoid this situation altogether is by filing your client’s complaint long before the statute of limitations runs. That way, if the defense is raised, you’ll have plenty of time to either conduct discovery on the defense and/or serve the defendant again. But if this isn’t possible because the client contacts you just before the statute is about to run, it wouldn’t hurt to keep the following in mind:
In car accident cases, don’t rely solely on the police report for the defendant’s address. Even if that address is “current” per DOL records, that fact alone won’t excuse defective service.
Check public records to corroborate the defendant’s current whereabouts.
Use an on line service like Accurint for Legal Professionals to obtain a cheap investigative report.
Carefully review the affidavit of service from your process server. Although an affidavit of service is presumptively correct, Streeter-Dybdahl shows how easily this presumption can be overcome.
NAPLES, Fla.- Two private investigators signed on for a mission of a lifetime. Both risked their lives during a daring rescue to pull an American and her children out of Egypt.
Because of the severity of the mission, names of the family involved will not be disclosed. During the mission, the investigators did not have the backing of the U.S. government and were on their own if something went wrong.
Naples Security Solutions answered a phone call from a family desperate to get their loved ones back. They explained to the investigators, Chris Knott and Mike Perl, one of their family members and her children were being held hostage by her husband in Egypt.
The two had met in the United States, both were doctors who fell in love and were married.
“She is of Christian faith and he is Muslim,” explained Knott.
The difference in religions would not play a huge role in their marriage until five years in. The woman said her husband’s mentality changed. He gravitated toward Islam, he cut off her family and made no friends.
He no longer wanted to live in the United States and demanded they move to Egypt. When the family wouldn’t go, he suggested a trip instead. She hesitated but went against her family’s wishes.
“They knew he had the capability to do this but she didn’t want to see it I guess,” explained Perl.
“He destroyed their passports and said they would never go back. He said he would kill the family before they were allowed to go back to the United States,” said Knott.