Legislation/Bills Archives - DGR Legal

Michigan Bill To Make Filing A False Certification A Felony

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false certification

 

A Michigan bill has been introduced with the intention of making false certification of personal service a felony charge in an effort to create stronger consequences and more accountability in process service.

House Bills 4666 and 4670 would classify the false certification of personal service as a felony violation in the Code of Criminal Procedure. One of the sponsors, State Rep. Joe Bellino, testified before the House Judiciary Committee on October 24th in favor of the bill, citing the need for greater accountability for those who serve legal notices.

“Falsely claiming to serve notice of a court proceeding, when in fact the individual involved did not receive the notice, can have far-reaching consequences. Unfortunately, process servers who commit fraud are hardly ever held accountable in Michigan. Only rarely are they found in contempt of court, which typically results in a small fine or, at most, 90 days in jail.”

The bill would introduce the following language, effectively turning lying on an affidavit into a felony charge by adding the following lines:

(3) an individual who intentionally makes a false declaration under subsection (1) (B) (ii) (B) is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $2,000.00 or both.

The proposed punishment is a big change from the current one of no more than 90 days in prison.

Subsection (1) (B) (ii) (B) is also a new addition. The rule change would have one of the following statements selected as applicable and placed above the date and signature on the certification:

  • “I am a law enforcement officer serving under an oath of office and declare that I have examined this proof of service and its contents are true to the best of my knowledge, information, and belief”.
  • “The preceding paragraph does not apply, and I declare under the penalty of perjury that I have examined this proof of service and its contents are true to the best of my knowledge, information and belief”.

We’ll keep you posted on whether or not the bill is actually passed.

Does anyone know of a state where making false statements in an affidavit or certification for process service is a felony charge?

Read the full bill text here:

House Bill 4666

House Bill 4670

 

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Bill Introduced to Allow Service of Process on Private Mailboxes

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service of process on private mailboxesA California bill, AB 1093,would allow service of process on private mailboxes to be effectuated on the first attempt if the only address reasonably known for the subject is said mailbox.

Introduced on July 14th, the bill would amend Section 415.20 of the Code of Civil Procedure and is sponsored by Assemblyman Phillip Chen.

The premise of the amendment is based on existing law, wherein if the summons and complaint can’t be personally served then service can be effectuated upon another person at their usual place of abode or business as long as a copy is mailed as well.

This bill would help expedite the legal process in the applicable instances.   Keep in mind though, to use the mailbox, it must be the only address reasonably known for the person to be served. Otherwise, it is deemed necessary to attempt using other methods.  This change wouldn’t relieve attorneys of the need to perform adequate due diligence in locating an address where personal service could be attempted.

Here is the full change to the rule:

(a) In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(b) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(c) Notwithstanding subdivision (b), if the only address reasonably known for the person to be served is a private mailbox obtained through a commercial mail receiving agency, service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the commercial mail receiving agency in the manner described in subdivision (d) of Section 17538.5 of the Business and Professions Code.

For the complete bill and text, go here.

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NY Process Servers Seek To Replace Affidavits With Certifications of Service

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NY process serversA proposal authored by Larry Yellon has been brought to the attention of the Albany legislators on behalf of NY process servers seeking to replace affidavits with certifications of service.

The proposal requests a change in the CPLP Rule 306d Form allowing for a single signature. This would make affidavits obsolete and replace them with returns or certificates of service. Modeled on the Federal, California and Florida returns of service this would eliminate the need for notarization and make it easier to obtain proof of service from other states.

New Jersey process servers have also sought a similar rule change, presenting the request to Judge Grant, head of the Administrative Office of the Courts.

“The association would like to kindly request in place of a notarized affidavit, a certification instead be accepted for service of process which would ultimately have the same legally binding effect holding the individual responsible to the accuracy of the document. As the courts move toward electronic filing in all divisions, this would help to expedite the filings of affidavits.”

For the full letter go here.

Such a change would benefit both New York and New Jersey process servers considerably, as well as the entire judicial system. Not only would the cost be reduced for process servers, timelines would be shortened for filings. With the rise of e-filing in New Jersey, affidavits not requiring notarization could quickly be scanned and sent to the client while still in the field, expediting the time to file with the court and streamlining the case.

The benefits to the replacement of affidavits with certifications of service would ultimately benefit the courts, litigants, law firms and process servers.

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2017 Process Service Legislation

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2017 process service legislationProcess service legislation in 2017 has a number of bills and proposed rule changes across the country just waiting to impact process servers.

Take a look at what’s currently on the table:

State: Michigan
Bill: HB 4294

Introduced:  September 9, 2015
Summary:  HB 4294 would permit additional fees on top of service rates being served out of any court in Michigan.

  • An order of eviction, ability to take property or goods, or a civil bench warrant – $39 + mileage
  • Notice of sale, subpoena, order to show cause, summons and complaint and affidavit and account – $25 + mileage
  • Any writ of garnishment – $22 + mileage
  • Getting and filing a bond – $19 + mileage
  • Service by mail – $12
  • Every wrong address – $15

Current Status: Referred to the Senate Judiciary Committee 12-6-16
Link: HB4924

State: Florida
Rule: 48.092

Summary: 48.092 has been created for instruction on service of a financial institution.

  • Allows financial institutions to set sole central location or registered agent for service within the state. These locations must be open at minimum 9-5, M-F, excluding holidays.
  • If financial institutions don’t set a location or registered agent, service may be made upon any officer, director, or business agent at the principal place of business or any branch, office or place of business in Florida

Link: 48.092

State: Arizona
Bill: SB 1018

Introduced: January 9, 2017
Summary: Certified process servers added to Section 28-455 allowing them to now have access to vehicle records.
Current Status: Assigned to Senate Rules Committee 1-9-17
Link: SB1018

State: Ohio
Rule: 4.2

Summary:  Permits confidential service through the Secretary of State for certain persons. This allows victims of domestic violence and persons who may be at risk should their address be exposed to have their service accepted by the Secretary of State.
Link: 4.2

State: Ohio
Rule: 33, 34 & 36

Summary: Doesn’t allow service of discovery to be served along with the summons and complaint
Link: 33, 34 &36

District Court Fees Update: December 1, 2016

Summary: Most notable, attorney admissions to practice will raise to $231. Record searches will raise to $31.
For more info with a complete list of changes, click here.

Know of any other pending bills and legislation or rule changes that would impact the process service industry? Send them over and we’ll be sure to add them to the list!

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New York Process Server Log Book Bill Passes Senate

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New York process server log bookSenate Bill 29 has passed the Senate, taking the process server log book rules one step closer to no longer requiring both a digital and handwritten copy.

The bill was introduced after process servers began to strongly feel the burden of maintaining two types of log books in addition to their regular daily duties.  The bill would remove the requirement to keep a handwritten log book and would instead require process servers to submit entries to a third party within three days of service or attempted service.

This option also requires process servers to not have the ability to edit these records in any way. If there is a type or error, the third party would be able to edit the credits but only through the addition of italicized text and may not make any deletions.

The bill is currently waiting to be passed in the Assembly (A3939).

Here is the complete justification from the court documents as to the proposed change:

In order to create a more efficient way for the regulators to review the records of process servers, municipalities that have one million or more people (NYC) have implemented a mandatory digital record requirement that mirrors the State requirement of General business law Sec. 89-cc. Requiring the process server to record the same information twice, a handwritten format and a digital format. The result of that law has created an undue burden for the process server.  This burden does not provide any benefit to the citizens of New York nor any regulatory authority. This law will allow the process server an option to meet the requirement of sec. 89-cc that mirrors the requirement of the local Municipality. The process server will be able to streamline their data recording in a tamper proof environment that will create more transparency and reduce the risk of fraud.

The New York State Professional Process Servers Association is requesting process servers reach out to their Assemblyperson in support of the passage of the bill.

To read the complete bills:

Assembly Bill 3939

Senate Bill 29

 

 

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Some Nevada Process Servers Exempt From Licensing Requirement Under New Bill

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Nevada process serversWhile Nevada requires process servers to be licensed, AB128 would grant an exception to Nevada process servers in cases where the individual completing service isn’t compensated.

The italicized text below shows the proposed changes:

Section 1. NRS 648.063 is hereby amended to read as follows: 2 648.063 [An]

  1. Except as otherwise provided in subsection 2, an unlicensed person who performs a single act for which a license is 5 required has engaged in the business for which the license is required and, unless exempt from licensing or performing an investigation pursuant to NRS 253.220, has violated NRS 648.060.
  2. A natural person who without compensation serves legal process must not be deemed to be engaged in the business of process server and the provisions of this chapter relating process servers, including, without limitation, the requirement to obtain a license to engage in the business of process server 3 pursuant to NRS 648.060, do not apply to such a person.

 For the full text of the bill go here.

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Bill Giving Process Servers Access to Gated Communities Withdrawn

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Viprocess servers access to gated communitiesrginia SB 823, which would have given process servers access to gated communities, was withdrawn by Senator Wexton on January 23rd.

Introduced on November 11, 2016, this is the third time a bill has been introduced into the Virginia legislature in an attempt to grant process servers access to gated communities and multi-family residential dwellings.

Until the bill is passed, process servers have to resort to various other tactics in order to effectuate service. One of the most effective techniques when denied access to a gated community by a security guard is to mention § 18.2-40:

“Every person acting jointly or in combination with any other person to resist or obstruct the execution of any legal process shall be guilty of a Class 1 misdemeanor.”

Even that option however is not 100% effective. The passage of SB 823 would have provided process servers a clear path to the completion of service, even if access to the gated community was denied.

It is likely the bill will be re-introduced in the next session and Virginia process servers are hopeful that this time it will be passed.

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Colorado Introduces Bill To Address Denial of Access to Gated Communities

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Colorado process serverIntroduced on January 19th, HB17-1095 would allow a process server to serve process upon another person when the process server is denied access to the subject’s residential community by a security officer.

While some states look to gain access to gated communities for the purposes of effectuating service, this rule goes one step further in allowing servers to serve the security guard at the gate. In addition to delivering the papers to the security personnel at the location, the documents must also be mailed at the address of the party to be served.

This bill also addresses security devices such as swipe access to gates. In the event a security device is present, then the process server can contact the property manager or a managing agent of the residential community to request access. Should the property manager or managing agent refuse to grant access, the process server can then leave the documents in a conspicuous location and mail a copy of the documents to the last known address. This also applies if the security personnel refuses to grant the process server access or to accept to the documents on behalf of the subject.

To read the full bill text go here.

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What VA SB 823 Means to Process Servers in New Jersey

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process servers in New JerseyVirginia currently has a bill pending which could positively impact the ability of process servers in New Jersey to pass similar legislation.

VA SB 823 allows entry for the purpose of service of process to multi-family dwellings and restricted access communities. While other states have passed similar legislation, those states have either licensed or registered process servers, effectively creating a list of individuals to cross check who is claiming to be accessing the property in order to effectuate service. New Jersey is similar to Virginia in that it does not have any licensing or registration requirements – anyone who is over the age of 18, not a party to the matter and of sound mind can serve.

Virginia has addressed how to ensure individuals accessing the property are truly there for the service of process – they of course must need to meet the rule requirements for process servers in the state, but they must also provide “a valid identification and evidence of the process to be served”. The valid identification could be a driver’s license or a government issued ID, which would provide an individual manning the access points to a restricted access community to sufficiently identity said process server. The evidence of the process to be served substantiates a process server’s reason to be granted access and will show the name and address of the individual to be served.

These two pieces combined – the valid identification of service – can be applied to the potential future introduction of similar legislation with New Jersey. The passing of SB 823 would help set a precedent in states where there is no government held list of process servers within said state, providing a much-needed avenue to still be able to gain access to gated communities and expedite the completion of service and the judicial process.

While we always keep a close eye on any bills that will affect the process service industry, this is one all process servers in New Jersey will be following! Best of luck to Virginia process servers.

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VA SB 823 Would Grant Process Servers Access to Gated Communities

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access to gated communitiesVirginia SB 823 would give process servers access to gated communities and multi-family residential dwellings for the purpose of service of process.

“An employee or agent of an owner of multifamily residential real estate or a common interest
48 community, as defined in § 55-528, exercising physical control over common entry points to restrict
49 access to the multifamily residential real estate or the common interest community shall grant entry to a
50 person attempting to execute service on a party who resides in, occupies, or is known to be present in
51 the multifamily residential real estate or the common interest community, provided that the person
52 attempting to execute service (i) is authorized to serve process as set forth in § 8.01-293 and (ii)
53 presents to the owner, or its employee or agent, a valid identification and evidence of the process to be
54 served.”

This bill could be a huge benefit to Virginia process servers, who have all no doubt encountered situations where effectuating service was either difficult or impossible due to the subject residing in a gated community.

The bill also benefits the legal community as a whole. No longer will cases be delayed due to individuals being unable to be served due to their residence being a part of a multi-family or restricted access community. Instead, the judicial process will be expedited.

Additionally, the legislation serves to protect the integrity of due process rights and the rights of every citizen to be adequately notified of legal matters concerning them.

If passed, Virginia would join Illinois, Washington, Florida and California as states where specific rules allow process servers entry to gated communities. Unlike these other states however, Virginia does not have registered or licensed process servers. In order to gain entry the legislation requires process servers to be allowed to serve under Virginia rules as well as provide “a valid identification and evidence of the process to be served”.

SB 823 was introduced by Senator Jennifer T.  Wexton on November 9th, 2016.

For the full text of the bill go here.

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