What Happens When An Individual is Evading a Process Server in New York City?

evadingserviceA lawsuit can not officially commence until the defendant is served with the legal papers in New York City.  Many individuals believe that they can avoid the lawsuit or even have it dismissed if they evade the process server altogether.  This is a common falsehood that defendants make.  The law provides that although personal service is necessary in most cases, the Court can allow other options for service if there is knowledge that the party is attempting to evade process or there isn’t enough information as to the address of the party to be personally serve.

To begin with, the easiest option on service is personal service if you can get it.  Personal service is when a process server personally hands the legal document initiating a court case on to a defendant. This is the best option for service, and New York requires that it be attempted multiple times before a plaintiff turns to the alternative methods.  With respect to personal service, the papers do not have to touch the individual or needed to be acknowledged.  You can drop the papers in front of the person and say “You Joe Smith have been served and most likely the Court would deem that personal service.  The process server would have to describe the individual served, the location of service and any other particulars that would make it succinct to the Court that the party to the action was delivered the legal papers.  It is advisable to have GPS coordinates and a photograph of the area and or of the person if possible as well.

If the individual to be served is great at avoiding process that it would be impossible to get to the point of personal service then a Plaintiff can seek alternatives.  The Court can allow these alternatives depending on their discretion.  The alternatives would be a)Leaving court papers at the defendant’s home or business with a competent adult; and/or b) Mailing a copy of the summons and complaint via certified mail to the defendant’s home or business.   If this information is not known or if it is difficult or not possible, a judge will grant the plaintiff permission to serve you via publication. This involves taking out ads in local newspapers.  It will cost some money to publish but you can use a local newspaper where the party’s last known address was.  The party to be served does not have to see the service but it would let the world know that a lawsuit has been initiated.  That would be sufficient for the Court.

Evading process is very difficult to do in New York City.  Although it may take time to serve using alternative methods, eventually you will get your man.  If you need assistance with the service of legal papers in New York City we can help at DJ&H Process Service.  Call us at 718-843-1184 if you need assistance.

 

What is ‘Sewer Service’ in the Process Service Industry and How Can It Be Prevented

processserver4“Sewer service” is a practice that has been used in the past by attorneys and process serving agencies in order to get default judgments on the party being served.  It was and sometimes  still used when let’s say a debt collector fails to serve a notice of complaint and then files a false affidavit claiming the notice has been properly served. When the debtor doesn’t show up in court, the collector can then apply for, and almost always wins, a default judgment.  This was a practice abused in recent years in New York City by process servers.

During the foreclosure crisis in between 2007-2010 there were many instances of “sewer service”.   There was a crisis in the process service industry in New York City. According to the New York City Bar Association, in 2009, 66% of the 241,195 consumer debt cases initiated resulted in default judgments, often after “sewer service.” As a result, each year tens of thousands of New York City residents are deprived of their due process right to be heard before judgments are issued against them, resulting in frozen bank accounts, ruined credit ratings, and other devastating consequences.

The Department of Consumer Affairs regulates process servers that serve legal documents in the City of New York.  In 2012, the Department of Consumer Affairs promulgated new rules under the Administrate Code that provided process servers have to take a test to receive or renew their licenses, maintain an electronic log in addition to paper records of their attempts to deliver papers and carry a GPS device, among other things. The new rules also make the process-serving businesses more responsible for the behavior of the people working for them.

Although these rules have been enacted, the practice of “sewer service” is still taking place.  In 2016, a process serving company was allegedly hired by many high-volume debt collection law firms in New York to serve collection lawsuit papers. This usually consisted of a summons and complaint which notifies consumers that they are being sued. The process service agency often neglected to actually serve the papers as required by law, instead engaging in the highly illegal practice of “sewer service” according to the charges.

If you are concerned about  “sewer service” and need to hire a professional process service company in New York City, DJ&H Process Service is the one you should call.  We hire licensed process servers and monitor their actions through GPS and other methods to make sure that service is done correctly and does not violate the law.

Importance of an Affidavit of Non-Military Service in Legal Proceedings in New York and the Process Server’s Role

affidavitofnonmilitaryservice2The Servicemembers Civil Relief Act protects military personnel from having court judgments taken against them while they’re on active duty. You can provide the court with such proof by submitting an Affidavit of Non-Military Service.  This is especially important in Landlord & Tenant, Matrimonial and Foreclosure actions in New York City.  In many instances, the Plaintiff in the actions will request the process service agency to submit an affidavit of Non-Military Service.  Process servers are fully knowledgeable of filling out this affidavit as it is usually requested in the course of their everyday business.

An investigation carried out for the purpose of discovering a person’s military status may be carried out at any time after the commencement of the actual action or proceeding. The commencement of the action or proceeding in general means delivery of the papers, not completion of service.  In the practical sense, the investigation may take place at any time subsequent to the service and prior to the entry of the failure to appear/answer judgment. To be perfectly clear, the NonMilitary Affidavit may be filed together with the Affidavit of Service and originating papers, or anytime thereafter up to and including the application for the default judgment.

The investigation may be carried out, and the Affidavit sworn to, by any of the following: a) The Plaintiff/Petitioner or his/her attorney. b) Anyone requested to do so by the Plaintiff/Petitioner or his/her attorney. c) Anyone hired for that purpose by the Plaintiff/Petitioner or his/her attorney. d) An employee of the Plaintiff/Petitioner or his/her attorney.

The Non-Military Affidavit must give facts as to the basis for the affiant’s belief that the defendant or respondent is not in the military service. “Facts” requires more than a simple conclusory statement that the defendant or respondent is not in the military service. A bare statement to that effect is to be considered inappropriate and may be rejected by the Clerk as insufficient. The statement should indicate the reason(s) for the affiant’s belief. Possible reasons might be: a) Asked defendant/respondent personally. b) Spoke to neighbors who know defendant/respondent personally. c) Spoke with employees of landlord who work in the building and are acquainted with defendant/respondent. d) Spoke to defendant/respondent’s employer or co-workers. e) Looked up defendant/respondent’s record: Example: having application which must be updated as to military status by law. The Investigator looked up records of defendant/respondent. The records indicated that the defendant/respondent is not in the military. The records must be identified. f) Proof from the Defense Manpower Data Center (DMDC). 50 App USCA § 583 allows a certificate signed by the Secretary of the DMDC to be used as prima facie evidence as to the status of a person. See CCM 158 for details. g) Defendant/respondent is elderly (approximate age). h) Defendant/respondent is infirm (wheelchair, crutches, etc.). I) Person giving information works with defendant/respondent. j) Defendant/respondent receives public assistance. k) Telephone conversation, provided that the person who did the investigation establishes that s/he knows and has a basis to know, the voice of the conversant.  l) Any other type of investigation is possible, but must be outlined in a manner similar to the above examples.

You must also be able to identify the person who the affiant has spoken to in a describable manner and where you spoke to that person.

This investigation can be done by a licensed New York process server.  In particular at DJ&H Process Service we have completed many Affidavits on behalf of attorneys and litigants over the years.  If you need an Affidavit of Non-Military Service completed for your case, you can contact DJ&H Process Service.

Will Service of Process in New York City via Facebook become the norm?

serviceviafacebook2Service of process in New York City divorce actions are more stringent than in many other case.  In divorce proceedings, the plaintiff must make sure the defendant is notified of the divorce action. So, a divorce defendant must be “served” with the summons, which means the divorce paperwork needs to be handed directly to the defendant. This method of service is called “personal service.”

The person serving the papers on the defendant cannot be one of the parties to the case, which means one spouse cannot serve the other. The server can be a friend, relative, or a process server hired by the plaintiff, and must be at least 18 years old.

The plaintiff can “serve” the defendant in any of the following ways:

  • Personal Delivery: the defendant is handed the court papers.
  • Substituted Service: personal service on someone who lives/works with defendant and is mature enough to give him/her the papers and first-class mailing to defendant’s last known address/place of business (envelope must say “personal and confidential” and not mention the lawsuit.)
  • Service by Publication: If the defendant can’t be found, the court will allow an official notification of the divorce proceeding to be published in a newspaper.
  • Alternate service: Any other method of service the court decides is appropriate.

Recently New York Courts have allowed Alternative Service via Facebook in situations where all other avenues have been exhausted.  Although many people believe that service via social media will become the norm, it doesn’t seem to be according to the circumstances on why the judge allowed service via facebook.  In Ellanora Arthur Baidoo v. Victor Sena Blood-Dzraku, 48 Misc.3d 309, 2015 N.Y. Misc. LEXIS 977 (N.Y. Sup. Ct. Mar. 27, 2015), the judge in Brooklyn ordered that the divorce papers must be sent to the husband over Facebook “once a week for three consecutive weeks or until acknowledged.” In the matter, the husband kept in touch with his wife by phone and through Facebook, but that he had no fixed address and refused to make himself available to be served. After all other conventional methods of service failed, he vacated his last known address in 2011, he had no job, the post office had no forwarding address for him, there was no billing address linked to his prepaid cell phone, and the DMV had no record of him — the judge allowed service through Facebook.  It seems that the plaintiff has to use every avenue available to serve a party.  Also there is another factor that the party to be served may be attempting to evade process as well.

From this we can see that service of process using social media will not become the norm.  It might be used in special circumstances that will have to be outlined specifically before being used.  If you are in need of service of legal papers in New York City call DJ&H Process Service.  We can help with all your needs.

Traverse Hearings and Why You Need a Licensed NYC Process Server

processserviceWhen serving papers in New York, there are always issues on whether the legal documents are served correctly on a particular.  If they are not served correctly, the person that should have been served can go into court and allege that service was improper.  The Court can decide that a traverse hearing be held in order to deem whether service is proper or not.  At this point, the process server would have to go into Court and testify as to how s/he effectuated service on the particular individual.  These issues always come up in Courts in New York City most of all because of the volume of service and process servers incorrectly serving at the wrong location.  This could be in any of the boroughs of Queens, Brooklyn, Manhattan and Bronx because of the density of the boroughs.

According to New York State law, before a court can render a judgment against you, it must first acquire Personal Jurisdiction over you.  Personal jurisdiction is obtained by serving you with a summons and complaint; but, you must be properly served.  Here are the ways you can be served:

  • Personal Service – delivering a copy of the Summons and Complaint to you personally;
  • Suitable Age and Discretion Service – delivering a copy of the summons and complaint to someone in your home of “suitable age and discretion” (someone competent enough to pass the papers on to you);
  • Nail and Mail – After at least two failed attempts at personal or suitable age and discretion service, the process server may post a copy of the summons and complaint to the door and mail a copy to your last known address.

When you file an order to show cause challenging service of process, there are four possible outcomes for an Order to Show Cause to vacate a default judgment:

  1. The motion is denied on all grounds and the judgment stands.
  2. The court grants the motion and dismisses the case for clack of personal jurisdiction because the affidavit of service is facially defective (i.e., what the process server has alleged does not constitute proper service) or the defendant has documentary evidence sufficient to refute the truth of the process server’s claims (e.g., proof that the defendant did not reside at the place where service was effected, proof that the defendant or person of suitable age and discretion could not have been served at the time and place alleged).
  3. The motion is granted to the extent that the judgment is vacated but denied as to dismissal of the complaint. In this case, the court will generally grant the defendant a certain period of time to answer the Complaint if he or she has not already done so.
  4. The Court schedules a traverse hearing to determine whether service is proper. At a traverse hearing the burden is on the debt collector to call the process server as a witness and testify as to the service. The Court either decides at the hearing that service was improper as a matter of law and dismisses the Complaint without prejudice or, more likely, orders plaintiff to re-serve the Complaint properly. The Court might allow re-service of the Complaint right there in court.

Pursuant to New York General Business Law Section 89-cc, a process server is required keep a log including the details of the service.  The log must include:

“legible record of all service made by him as prescribed in this section. Such records shall be kept in chronological order in a bound, paginated volume. […]. The record to be maintained shall include the following information, where applicable: (a) the title of the action or a reasonable abbreviation thereof; (b) the name of the person served, if known; (c) the date and approximate time service was effected; (d) the address where service was effected; (e) the nature of the papers served; (f) the court in which the action has been commenced; (g) the index number of the action, if known; (h) if service is effectuated pursuant to subdivision four of section three hundred eight of the civil practice law and rules or subdivision one of section seven hundred thirty-five of the real property actions and proceedings law, a description of the color of the door to which the summons is affixed; (i) the process serving agency from whom the process served was received, if any; (j) type of service effected whether personal, substituted or conspicuous; (k) if service is effected pursuant to subdivision one, two or three of section three hundred eight of the civil practice law and rules, the record shall also include the description of the person served, including, but not limited to sex, color of skin, hair color, approximate age, height and weight and other identifying features; (l) if service is effected pursuant to subdivision four of section three hundred eight of the civil practice law and rules, the record shall also include the dates, addresses and time of attempted service pursuant to subdivision one, two or three of such section; (m) if the process server files an affidavit of service with the court, his record shall include the date of such filing.”

At the traverse hearing the process server must have this log available and be able to testify about the details of the alleged service.  In practice, especially with older cases, the process server cannot be found and if he or she is found, either can’t recall the details of the service or has failed to maintain his or her log.

Our process servers here at DJ&H Process Service are compliant with the rules of law and are fully licensed with Department of Consumer Affairs.  They are familiar with Traverse Hearings and what the Courts will be looking for at the hearings.  They will be able to testify that service was proper as traverse hearing should need be.  Call DJ&H Process Service for service of process.

Why You Should Choose a Licensed NYC Process Server

licensed process serverThe constitution requires under “due process of law” that a person be notified of a legal proceeding before that proceeding can take away his “life, liberty, or property”.  To this end, state legislation requires that specific legal documents (i.e. subpoenas, summonses, three day notices, etc.) be “served” upon a person to guarantee an opportunity that they are heard in court.  In New York City, this is why it is important to hire a licensed process serving agency like DJ&H Process Service, Inc.

New York law does not require a specific person to “serve” legal documents, only that the person is not a party to the action, and is at least 18 years of age. However, there is a high demand for  professional and experienced “process servers”.  Inexperienced 3rd party individuals are not as likely to be successful executing difficult serves or responsibly filing an affidavit of service. Attorneys need professional process servers whom they can rely on to carry out their client’s rights and interests.

The position of process servers may not be as prestigious as attorney’s, judges, or even court reporters. However, their role is just as indispensable as long as “due process” is woven into our constitution. Frequently process servers will act as couriers and will find and pull court document for attorneys. Attorneys also have a strong need to have “court runners” to file their documents. An “attorney service” will file documents in addition to providing service of process for their clients. Process server companies in contrast do not always file documents for their clients as a service.

Common sense is sometimes the best method for choosing almost any service. When you call up an attorney service or process server company, does someone answer the phone? Do you have to go through a voice menu and press 3 digits before you can talk to someone? Does someone return your call? How long does it take to receive a returned call? A quality process server company will show enthusiasm and an interest in helping you when you call.

Obviously testimonials and referrals are useful. However, in their absence, it might be helpful to understand who is doing the serving. When working with an attorney service, it’s very possible that the person your talking to on the phone has no idea whose going to handle the serve 95 miles away, as he delivers to you his promises and commitments.

Here are some questions to ask: Who will perform the serve? Is it the entrepreneur owner, or a subcontractor? Maybe the sub of a sub? 2) How many attempts will be made for the fee charged? If  “unlimited,” ask what is meant by that. 3) Is there a charge for mileage? 4) Any internet information on the company? 5) Usually particularly good placement on google means they can charge more. Therefore, compare prices. 6) Ask when you will receive an update. The court imposes time limitation on the proper service of all legal documents. You ought to receive an update when you ask for one. 7) You’re going to want to provide as much information as possible regarding where the subject can be served and when. Communicating this will lower costs because it makes it easier to do the job. In addition it holds them accountable. A good process server or company will provide peace of mind as a part of the service.  Picking DJ&H Process Service for your process serving needs in New York City is the right start.  They are able to serve documents in all boroughs of the City.  Brooklyn, Queens, Staten Island, Manhattan and the Bronx.