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The city of New York is starting a trend by passing an ordinance aimed at holding process servers accountable. Recently, some process servers claimed they were delivering papers when they actually did not serve those documents. The ordinance would require that process servers use a GPS to record the time, date and location of the service delivery. Servers would also be required to take a test, get a license and be bonded.
New York Times.com reports that problems with process servers not delivering legal notices has grown during the recession as more individuals have debt problems. Last year, the New York Attorney General's office filed suit against an agency that allegedly filed false affidavits, then a class action suit alleging wrongdoing was filed in Manhattan against process servers and debt collectors.
The following was posted by Ryan Callahan, Esq, Connery, Callahan & Lange
Public opinion regarding process servers paints a bleak picture of their profession. As far back as the seventeenth century, Shakespeare suggested that the role of a process server is that of coward. It would appear the general public is disobedient to the cliché warning against shooting the messenger.
With the slightest change of perspective, the role of a process server can be thought of as a noble profession; the role that makes tangible our constitutionally guaranteed right to Due Process of law. A middle man by nature, the process server connects plaintiff to defendant and ensures proper notice and jurisdiction are attained.
Lately, however, allegations of impropriety have cast shadows over the industry. This behavior has evoked the sentiments of Mr. Shakespeare rather than those of Messrs. Jefferson and Madison amongst the public. While justice is intended to be blind, the blindfold that masks Lady Justice should not aid deception. Now, the blindfold has been removed and light has been shed on the fact that notice and jurisdiction are often not properly attained. Diligent law firms relying on validity of service are now the ones walking blindly into a slew of litigation.
Taking the Industry to Task
The aforementioned impropriety is unsettling to say the least. As a snapshot of the current climate, the matter has been brought into the New York State Court system. A class action lawsuit was filed on December 28, 2009 in Southern District Court on behalf of judgment debtors alleging violations of the Fair Debt Collection Practices Act and the Racketeer Influenced and Corrupt Organizations Act in connection with invalid service of process. The New York State Office of the Attorney General has taken note of the severity. The office, through the Chief Administrative Judge of the New York State Unified Court System, the Honorable Ann Pfau, brought a verified petition seeking to vacate over 100,000 default judgments. Thirty-five (35) law firms and two (2) collection agencies were named as respondents now ordered to show cause as to the allegations raised in the verified petition. The attorney general estimates the average judgment to be around $5,000.00. Thus, 500 million dollars stands to be rendered 'uncollectible'.
The alleged claims of impropriety are egregious, basically breaking down into three schemes. There are alleged instances in which process servers claim to have made service attempts in more than one place at the exact same time. In one particular case, a process server claimed to have been at four different addresses at once. There are instances in which a simple mileage calculation rendered the service attempts physically impossible. For example, a server claimed to have made process-serving attempts that would have required him to drive more than 10,000 miles in a single day. Lastly, there are instances of servers delivering papers before the date that the papers were actually given to the servers.
Of course, attorneys and their process servers are inextricably tied together. New York State attorney General Andrew Cuomo stated that he was "putting all law firms on notice that they are responsible for the conduct of the companies they use to serve complaints and other legal documents." The actions of his office confirm this mandate; law firms represent the bulk of defendants/respondents in the Court actions. From a reading of the general allegations, some of these firms may have been knowing participants in the schemes, others failed to meet the standard of diligence in reviewing the affidavits of service. However, the recent plague of impropriety in the process serving industry begs the question: As dishonest, industry practice begins to vindicate long-standing, negative public opinion, and with the mandate of the Attorney General lingering in the backdrop, what is the diligent law firm or lawyer to do?
Available, affordable technology to protect the diligent law firm
Quite obviously, if your process server travels 10,000 miles in a day, a red flag should be raised as to the vailidity of your service. However, there are more subtle methods of accomplishing a "sewer service" to the detriment of an unsuspecting law firm. Also, with the recent publicity given to invalid services of process, motions to quash service will undoubtedly become the gold standard method for debtors to avoid judgments and collection efforts, whether valid or not. Lawyers, particularly those in the field of debt collection, potentially enter perilous territory with every document transferred from the printer to the server.
Unfortunately, a lawyer does not have the luxury of following a process server around town, ensuring proper service with every stop? However, with a unique, patented use of available, affordable technology a lawyer can now have the functional equivalent. CivilMap is the newest, most user-friendly product set to change the process serving industry for the better. Launching nationally in April, 2010, CivilMap is a smart phone application which allows each and every service of process to be documented by independent third party verification to ensure validity of service. CivilMap is equipped with a custom web server through which data is entered and stored. CivilMap also provides the Rules of Civil Procedures with every service to ensure they are performed correctly.
The CivilMap product and the prevention of sewer services, motions to quash , and scriviner's errors
How can CivilMap protect the innocent law firm? By design,CivilMap works to prevent a sewer service. Once a service is computed into the web server, the job begins, as does the protection to law firms. A server will be required to travel to the intended destination for service. Upon arrival at the destination, a GPS location is recorded, date and time stamped, and an audio recording of the service begins automatically. When the process server completes the service, the information is sent to the database and checked by the company office. An affidavit is generated from the information in the database. All the while, the record of progress is accessible to attorneys in real time.
Applying CivilMap to the allegations of impropriety discussed above, one begins to understand why CivilMap will literally change the industry. A law firm employing a CivilMap user to perform service of process can rest assured that a sewer service is not an option. From the moment a job is entered into the database, a travel route is created for that particular job. A server cannot complete the service until he reaches the destination. Upon arrival, the GPS location is recorded as having been reached. The exact date and time of arrival are also recorded. Lastly, the audio recording device allows a law firm the ability to listen to each service to ensure that the rules of civil procedure are adhered to.
A server can no longer claim to be to be different places at the same time. A server can no longer claim to have traveled thousands of miles in a single day. A server can no longer alter documents so that they reflect an earlier date than that on which the document was received. A server can no longer carelessly hand over legal documents to anyone who answers the door.
However, CivilMap is designed to offer more benefits than protection against dishonorable process servers. Take the example of the dilligent law firm contracting with the honorable process serving company. As prognosticated above, debtors will quickly look to challenge validity of service, hoping to capitalize off recent impropriety in the industry. CivilMap alleviates this concern. A debtor's unscrupulous motion to quash service will be stopped dead in its tracks by CivilMap's independent, third person verification of time, date, and location per service attempt. The cloud of doubt hovering over the process serving industry will not cast shadows on users of CivilMap. Reliability and transparency are built into the product.
Lastly, even the most advanced technological devices cannot erase human error from the process serving industry. Misinterpretations of the Rules of Civil Procedure and typographical errors are a given, even amongst the most honorable and diligent of process serving companies. Rule 4(l)(3) of the Federal Rules of Civil Procedure (and as adopted by most jurisdictions) contemplates such human error, and states in relevant part:
Validity of Service; Amending Proof. Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended.
Picture the faith a lawyer would have in amending a proof of service with independent, third party verification of time, date, and location as evidentiary backing provided by CivilMap. And given the current cloud surrounding validity of service, couldn't we all use the assurances inherent with this new technology.
 William Shakespeare, The Winter's Tale, 4.2.28-35.
 2009 Civ. 8486.