Will NYC Process Servers be Required to use Body Cameras?

Recently there has been a push for having more accountability for law enforcement officials.  Many counties are suggesting body cameras be required for all police officers in order to monitor the behavior of both the civilian interactions as well as officer reactions.  Illinois is now pushing for this technology to be used by process servers in counties of populations over 3 million.  This would only affect one county (Cook) in Illinois.

More About Illinois Bill HB 6327

Illinois Bill HB 6327, would require that all the video data be stored until the resolution of the case.  This would place additional expenses on process servers who are already feeling the pinch of expenses due to competition and additional technological advances that have become commonplace in the industry.  The idea of the bill would be to improve transparency and security for public servants.  However, there has been opposition that litigants would become more violent if they knew that they will be video recorded.  For more information on the bill see ServeNow's article here.

Will this affect the New York City process service industry?

Being that New York City is a densely populated area, the legislature in New York City via the Department of Consumer Affairs has promulgated many laws since 2011 to maintain integrity of the industry.  In June 2011 the Commissioner of the New York City Department of Consumer Affairs (the “Department”) mandated new recordkeeping rules to be maintained by licensed process servers in the City of New York. The adopted rules and amendments to existing rules took effect in July, 2011. According to the Department’s website, effective as of November 12, 2011, licensed process servers are required to carry and operate an electronic device that records the Global Positioning System (“GPS”) location while serving process.  Furthermore in order to become a process server, an individual must take an exam charging a $75 fee for taking this exam and if an applicant fails the exam they must pay again to retake it. The applicant must also pay a $340 licensing fee and a $75 fingerprinting fee.  Also, this year amendments to the penal code make it a Class D felony to assault a process server.

In light of all of this legislation is there a need to have body cameras on New York City process servers?  One would think that the additional regulations set forth by the Department of Consumer Affairs would make it just an additional burden on process servers to maintain body cameras.  If Illinois mandates this, there may be a push for it in cities with a population density such as New York City.  This may lead to an another exodus of process servers from the industry.  We should all monitor what the Illinois legislature does and see if this is a viable option for New York City process servers in the future.

http://djhprocessservice.net/will-nyc-process-servers-required-use-body-cameras/

When Is Service By Publication Allowed in New York City

There are many times that a legal action needs to be initiated and the Defendant is nowhere to be found.  They have left without no known address and there are not any people around that will assist you in finding them.  In an instance such as this, service by publication may be permitted by a judge.  This is when a judge allows you to publish the papers initiating the action in a newspaper or other publication.  Before you get to the part where a judge will allow service by publication, you would have to show that you have exhausted all of your other remedies and this is one of the last resorts.  We have recently found in an unusual circumstance that Courts in NYC have allowed service via facebook but service by publication is much more the norm.  Exhausting all your remedies would include attempt personal service at the last known address or at the place of business.  Trying to use substituted service is sometimes also allowed however if you cannot find the person then notice of publication would most likely be allowed.  The notice of publication would set forth guidelines that the judge will determine and also allow a certain time-frame for it to be performed.  The most common type of action that notice of publication is used is in real estate and divorce actions.  Generally the notice must be published in the newspaper more than once, such as once a week for a number of weeks. When a certain time has lapsed since initial publication, such as 45 days the service can be deemed effectuated.

 §  315.  Service  by  publication authorized.   The court, upon motion
  without notice, shall order service of a summons by  publication  in  an
  action  described  in  section  314 if service cannot be made by another
  prescribed method with due diligence.

With respect to notice of publication, you can put the legal document (Initiating legal document) in a newspaper.  It doesn't matter if the publication is a local one or a large one like The Daily News.  However, it would be more cost effective as small publications costs a fraction of what a publication with a bigger based would have.  The idea is to give the defendant what is called constructive notice to the individual.  The court would deem the service appropriate even if the newspaper is read by the defendant or not. Also it would be appropriate to put the publication in a publication where the defendant should have seen it.  That would mean in a newspaper that would serve a region that the defendant has been known to live in the past.

Service of publication takes a few steps to get to.  It would be appropriate to hire an experience process server to handle the steps before in order to show the Court that you have used the highest level of care before you ask for the publication option.  DJ&H Process Service would be one that can assist you in your process service in NYC.  Should you have any questions about service by publication or anything else, please call us at 718-843-1184. We are a licensed NYC based process service agency.

http://djhprocessservice.net/service-publication-allowed-new-york-city/

Recordkeeping an Important Goal for NYC Process Servers

Process servers are fully aware that they must follow New York City's statutes and Administrative Code regulations.  The rules mandate how to serve process in many different situations and how to include the nature of service in the mandated logbook.  The rules and regulations are enforced by New York City's Department of Consumer Affairs.  These rules explain how to use a logbook and what is necessary to be included in an affidavit of service which will be filed with the Court and signed by the licensed New York City process service and notarized under penalty of perjury.

But just as important for the process server is the creation and maintenance of complete and accurate records of each particular instance of service attempted or made. First, if a person in a lawsuit challenges the service of process, the server must be able to demonstrate its validity. Second, city regulators are stepping up efforts to oversee the profession and want proof that process servers are performing their duties correctly.  The failure to do so may result in exorbitant fines or the suspension of the license to serve papers in the five boroughs.

The ability to have correct records are tantamount when defending alleged illegal service

Valid service of process is a prerequisite for a lawsuit to proceed. So it is not uncommon for a named defendant to take the earliest opportunity to stop or delay the litigation. This will result in the Court scheduling a traverse hearing to determine whether the service was indeed proper.  To uphold the validity of the service, the process server must be able to show that quality record-keeping system is in place and that proper practices under the law are always followed.  The easiest way to show this is for the licensed process server to maintain an up to date logbook.  In that sense the logbook could be entered into evidence and the process service can testify that the entries in them were inputted in the ordinary course of business.  If a judge can see that the recordkeeping is accurate, the process server will most likely prevail in the traverse hearing.  You will have instant credibility in defending the service of process; that is, to show that service was validly made, and that the filed proof of service is technically complete and sufficient.

Department of Consumer Affairs has stepped up penalties against Process Servers

The Department of Consumer Affairs have become increasingly concerned in recent years about “sewer service” which is a failure to serve the documents despite a proof of service declaring that service was completed.  This has allowed plenty of default judgments to go through the courts and judgments handed out against defendants in particularly debt collection and bankruptcy cases.

As a result of this, New York City's Department of Consumer Affairs issued more than 500 subpoenas on process servers for their records on their global positioning systems (GPS).   The GPS coordinates would show where exactly the process server alleged they were located when they served the legal papers.  Many did not have the required GPS coordinates or the GPS showed a location that was outside the location where the service was purportedly completed.  The Department of Consumer Affairs allows you to enter your GPS within a half a mile from where service was effectuated.

Our licensed New York City process servers know and understand the complex laws of process-serving.  Having up to date logbooks in case of hearings are of utmost importance as well.   You can contact DJ&H Process Service if you would like your legal documents served and filed in the correct manner.

http://djhprocessservice.net/recordkeeping-an-important-goal-for-nyc-process-servers/

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

A 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.

http://djhprocessservice.net/what-happens-when-an-individual-is-evading-process-server-in-new-york-city/

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

"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.

http://djhprocessservice.net/what-is-sewer-service-in-the-process-service-industry-and-how-can-it-be-prevented/

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

The 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.

http://djhprocessservice.net/importance-of-an-affidavit-of-non-military-service-in-legal-proceedings-in-new-york-and-the-process-servers-role/

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

Service 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.

http://djhprocessservice.net/will-service-of-process-in-new-york-city-via-facebook-become-the-norm/