Robin's Ruminations

Should we oppose e-service?  Can it be stopped?  Is there a middle ground?  How should NAPPS and the various state associations respond?  What should we, as individuals, be doing in advance of the onset of e-service?

E-service can't be stopped because it is already here.  It is a perfectly appropriate method of alternative service.

There is plenty of middle ground.  NAPPS's position is fine because it recognizes e-service's place in the overall system but emphasizes the importance of personal service.  This position should work well into the foreseeable future.

But, most importantly, we need to do anything and everything which will improve our image in front of our legislators and courts.  This means we do service by the book.  We've got to stop allowing our clients to push us into doing things which are wrong or outside the law.  We've got to stop working and associating with people who behave in that fashion.  Codes of ethics need to be strengthened and enforced.  Bad actors need to be ostracized.  

Process servers everywhere need to educate themselves.  We need to learn more about our chosen profession.  We must pay attention to what is happening around us.  More than once I have seen process servers express surprise and dismay at a change in the system which was highly publicized for months or years in advance simply because those servers chose not to pay attention to the world outside their own little bubble.

And, if there is no other way, government regulation needs to be embraced.  I'm generally not in favor of government regulation for regulation's sake alone.  But when activities are involved in which one person's behavior or actions impact another person's life or well being then regulation has an appropriate place in our society.  Service of process is one such place.  Process servers impact the life and well being of the person they serve, that of their client, and that of other process servers.  The laws of supply and demand simply don't act fast enough to prevent immense damage from being done by someone more interested in the fee than the service.

So with that, I'm going to take off my turban and give the title of The Great Karnak back to Johnny Carson.  

Comments (1)
Robin Mullins July 21st, 2010 12:21:11 PM

Ruminating about the future always makes me think of Johnny Carson's routine where he would put on a turban and take on the role of The Great Karnak.  Holding an envelope to his forehead he would entertain us all by reading its contents without opening it.  So here I sit, turban and all, with an envelope pressed to my forehead.

E-service exists and its use will increase over time.  However, for the reasons discussed in my previous post, I think the rate of increase is slow and will remain slow in the foreseeable future.  This means, in the near term, e-service will be used as an alternative form of service similar to snail mail, publication, or posting.  From that it follows that the impact of e-service on the average process server will be minimal.  In the near term.

But what factors could influence the rate of acceptance of e-service by the courts?

Cost is certainly an issue and our current hard economic times could play a role.  As in almost every other industry, technological advances in process serving will push costs down.  If e-service were fully implemented as a cost cutting measure (totally disregarding all other factors) the price of a service could be pushed down to levels not seen in decades.  Perhaps a dollar or less.  

Technology itself will play a role.  We are advancing at an incredible rate.  There are things happening in labs around the world which truly push the limits of our imaginations.  Suppose for instance, (and this is really off the wall and yet.......) we didn't carry our computers and phones around in our hands but, instead, they were imbedded in our bodies.  As radical as it may sound this is not that far outside the realm of possibility!  Could there be any question then as to whether or not a defendant received notice of a law suit if the notice was sent to the system built into his body?!

Our behavior will play an important and perhaps deciding role.  As discussed on this blog and on many others, the situation in New York was horrific and did an inestimable amount of damage to our reputation.  And, unfortunately, such activities have happened elsewhere and continue to happen to this day.  In my very strong opinion, if there is one thing which will push our legislators and courts in the direction of e-service it is our own misbehavior.  

More in Part 4.

Comments (0)
Robin Mullins July 21st, 2010 11:33:23 AM

The courts, as is their nature, are relatively slow to change.  My observation is that they typically lag behind society in many respects.  In nearly all instances this is a good thing for our country.  There are many reasons for this and I can think of a couple which apply directly to the larger issues surrounding technology and e-service in particular.

The courts are highly respectful of precedent.  There are very few new things under the sun and the courts have already heard and considered and decided many of them.  Therefore, except in unusual situations, they are loath to reverse previous opinions and rulings.  The fundamental concepts involved in e-service aren't really founded in technology.  Instead they deal with the concept of service itself.

A corollary to the courts respect for precedent is that they are not overly influenced by fads or fashion.  Today FaceBook is the "be all/end all" when it comes to socializing on the web.  But the courts recognize it wasn't the "be all/end all" yesterday and probably won't be tomorrow.  So although there have been some serves allowed using such social networking sites, the courts have shied away from allowing such service to become a daily practice.  The same applies to the use of e-mail, fax, snail mail, and newspaper publication.

Without going too deep into the subject you should realize our profession springs directly from the 5th and 14th Amendments to the Constitution.  They require due process and due process requires notice and that is where the process server enters the picture.  When a civil action is brought by one person against another it is that person's intent to bring the power of the state against the second person.  This is our civilized way of keeping people from using more violent means to resolve their differences.  And if the power of the state is going to be employed then notice is required.

In general terms, most courts require service by a method which is reasonably calculated to insure the party receives actual notice of the proceeding.  There are all sorts of ways and manners in which this is done.  All you have to do is compare the rules of service of one state with that of another.  No one state's rules are "better" than another, they are simply different.  However, you will find a pattern.  

That pattern involves a spectrum of requirements.  For example, here in Washington the rules move from the restrictive (personal service) through a moderate level (abode service) to the least restrictive (publication or even posting).  But accompanying the ability to use the less restrictive methods are requirements for diligence.  California has a perfect example.  As I understand the abode service rule in California, the process server is not allowed to use that method until at least two previous attempts at personal service have been made.

So, in my opinion, the courts have been moving in the direction of allowing e-service at just about the rate I would expect.  Slowly and with caution.  In the situations of which I am aware, the courts have required proof the person could not otherwise be served even after appropriate diligence.  The technology for e-service exists today and has existed for some years.  But the court's natural conservative nature has played out true to form.  They haven't jumped on the technological "band wagon."

More in my next post.

Comments (0)
Robin Mullins July 21st, 2010 10:39:54 AM

Recently I was asked by Seth Davis of ServeNow.com for my thoughts on the future of the process service industry with particular attention to the impact of e-service.  Unfortunately his time frame was rather tight and, due to work and family obligations, I wasn't able to put my thoughts together in time.  But I found his questions intriguing and have decided to take them up here.  So the next several posts will all deal with this subject.  Here are the questions Seth put to me.

1.	At what rate do you think courts have been moving toward accepting e-service of process as an alternative to the traditional method? Do you think it will be two years, five years, a decade, etc., or ever?
2.	Based on the legal developments you’ve been monitoring, how likely do you think it is that process servers will lose a lot of business to e-service of process? Any estimate on how much business it could take away?
3.	What do you think are some determining factors about whether e-service will be an accepted practice in states? Are there any reasons why you think e-service of process will fail to gain widespread use as an alternative to live process servers?
4.	Many process servers are dedicated to opposing e-service of process at the moment because they fear that it will take away a lot of business. If it does gain traction as a common method of service of process, can you think of some ways that process servers could adapt their business models to accommodate it?
5.	Based on the cases you’ve examined what are some flaws with e-service of process that courts recognize? In other words, what are some limitations that e-service of process has as opposed to traditional service of process?
6.	Do you think there’s still a window of time open to process servers where they can fight the advance of e-service of process, or would their time be better spent pondering how to adapt?
7.	What do you think process servers can do to prepare themselves for the widespread use of e-service?

As usually happens when anyone attempts to forecast the future my attempt will almost certainly be proven wrong.  There are simply too many factors to take into account and most of them are unknown to me.  So I want to make clear that my thoughts on these matters will change as future history unfolds before us.  Still, it is fun to ponder such ideas.

Comments (0)
Robin Mullins July 21st, 2010 10:14:25 AM

There has been an elephant in the living room for quite some time that no one has really cared to talk about.  Actually there are several elephants but the one that has come to my attention recently has to do with the posting of foreclosure documents on difficult to locate real property.

Posting a piece of property sounds so incredibly easy.  Just go out to the property and tack the Notice of Default or Notice of Trustee's Sale up any where on it.  Slam, bam, thank you maam, and you're done.

Unless you aren't certain you're on the property.  Then what?

With the explosion in foreclosures during the current economic down turn many process servers are doing a banner business posting notices through out their coverage area.  Most postings are straight forward.  The client supplies an address, the address exists, you go there and post the premises  Now there have always been a few difficult to locate properties thrown into the mix but I'm noticing an increase in their number over the past few months.  And I suspect their numbers will increase over the near future.

I've spent hours reviewing plat maps, road maps, aerial and satellite photos, and Google and Bing maps trying to locate properties which don't have addresses and effectively existed only in the mind of some developer who is in the process of going under financially.  They're usually properties which are heavily forested and often landlocked well away from any road.

Recently I received an assignment to post a parcel in Everett which was bordered on one side by I-5 and otherwise surrounded by acres of alder forest.  The forest floor was impassable due to thick blackberry briars up to 6 feet tall which covered the entire property and the surrounding properties.  My client informed me they had just had an appraisal done so the property shouldn't be a problem to post.  After positively locating the property using the excellent Snohomish County Assessor's mapping system I also checked Google and Bing in order to get a good look at it from above.  Something didn't seem quite right about what the eyes in the sky were showing me.

So I took a drive out to where the property is located to have a look around and, perhaps, accomplish the posting.  Once there I quickly decided the appraiser my client had used didn't know how to read a map.  He had definitely failed to locate the correct property boundaries but had located the properties surrounding the target property.  Without heavy work clothes, a machete, and a couple of hours of hard labor clearing blackberries there was no possible way to access the property.

Returning to my office later that day I began a series of telephone calls with my client.  I explained the situation in great detail, supplied maps and aerial photos, and told them it would take time and effort to get to the property.  They didn't really like that.  After all, their appraiser had reached the property.  In as polite of terms as possible I told them their appraiser was wrong.  I even offered to go out there with the appraiser.  They didn't like that either.

Then the point of this story occurred.  During one telephone conversation the comment was made that "no one is going to be out there checking, couldn't you just step into the woods somewhere and post it?"  OMG I thought to myself.  This was a client for whom I have worked for 30 years.  A good client.  They give me a fair amount of work, they pay their bill on time, and I've always had good relations with them.  The perfect client.

I explained as gently as I could that I don't do that.  I don't post a property if I'm not positive I'm on the property.  Though I didn't say it I wanted to shout "My signature on a proof of service has meaning!"

A couple of days later they withdrew the assignment.  I don't know what they did with it.  Maybe some other process server stepped into the woods and posted it.

Comments (1)
Robin Mullins July 12th, 2010 11:46:47 PM

Word continues to reach me of L&I audits of companies around the state.  The real assault is on the use of independent contractors (IC's).  As I've mentioned previously, the state is fundamentally opposed to the IC business model and they're making every effort to stamp it out.

A major problem comes from our side of the fence.  Many companies have set up their IC arrangements with little regard to the tax laws and see it simply as a "cheap" way of doing business.  That said, there are also companies who have paid attention to the rules and have made the proper arrangements and are still being told their IC's are actually employees.  From where I sit it looks like L&I is being arbitrary and capricious in their application of the 6 part test to our industry.

I see three courses of action.

1 - Everyone in the state move to the employer/employee model.  For multiple reasons this won't work.

2 - The industry leaders band together and appeal unfavorable audit outcomes.    Larger companies will need to foot much of the bill but there is nothing wrong with this since they have the most to lose.

3 - We convince the state that process servers are part of a unique industry.  This is not unknown.  In the late 1990's the servers in California were able to accomplish this very thing.  But, as with option #2, this will require our industry leaders to come together and work towards a common goal.

For the long term health of the process serving industry I see option #3 as the most useful and with the greatest possibility of success.  In my view, the most important aspect of option #3 is that it will resolve the issue for once and for all.  This must be an industry wide effort.  It won't be inexpensive and it won't solve everyone's current problems because some have simply been operating to far outside the rules.  It will require various companies, who in some cases may be competitors, to work together.

There is no guarantee we will succeed if we work together but, if we don't unite, we will surely fail separately.

Comments (1)
Robin Mullins July 3rd, 2010 10:48:58 AM

WSPSA Executive Director Eric Vennes recently announced the new WSPSA web site is online.  I've checked it out and it is beautiful.  Built by the same people who did the NAPPS and OAPSS websites, it is a tremendous improvement over the previous site.  Navigation is drop dead easy.  Go have a look at www.wspsa.com.

Comments (1)
Robin Mullins July 3rd, 2010 09:57:21 AM

Everyone should be aware that, as of June 10th, it will be a primary offense to use your cell phone while driving unless you are using a "hands free" system.  In other words, if a police officer observes you using your cell phone in the traditional manner you may receive a citation.

The penalty is $124.

Here is the part of the law most applicable to our situation:

"A person may not operate a moving motor vehicle while using a wireless communications device.  A person operating a moving motor vehicle who, by means of an electronic wireless communications device, (other than a voice-activated global positioning or navigation system that is permanently affixed to the vehicle) sends, reads, or writes a text message, is guilty of a traffic infraction.  A person does not send, read, or write a text message when he or she reads, selects, or enters a phone number or name in a wireless communications device for the purpose of making a phone call."

Although the final interpretation and application of the law will be made by judges around the state, the Washington State Patrol has offered the following guidelines.  NOTE:  These guidelines are subject to change at any time and without notice.

1.  If you have a phone near your ear you are in violation of the law and you will be cited.

2.  You are not "likely" to be cited if you are using a hands free phone or speaker phone so long as it is not near your ear.

3.  Texting and driving will result in a citation.

4.  If you are using your phone or a GPS device, and you appear distracted, you will be cited.

5.  If you are surfing the web you will be cited.

6.  Dialing a phone number is not "likely" to result in a citation unless it appears you are distracted.

I use a bluetooth ear piece.  It gets a little uncomfortable after a while but better that than a $124 fine.  

Comments (2)
Robin Mullins May 29th, 2010 10:49:05 AM

Multiple process serving agencies are under audit by L&I.  Unfortunately, some of them may not fair very well because of their business practices when it comes to using IC's.  Even companies who are in relatively good shape are finding the audit process difficult and time consuming.

I've learned through the Independent Business Association that L&I is targeting the construction industry and the service industry.  Both are known for paying cash to employees and for using independent contractors.  Both practices are considered red flags by L&I.

And don't think L&I is wasting our tax money with all the time spent on the auditing process.  The return rate is about $8 to $1.  In other words, for every $1 the state puts into the audits it sees an $8 return.  My business should be so profitable!

You'll find thorough descriptions of how L&I looks at IC's elsewhere in this blog so I'm not going to repeat it here.  That said, you need to know that perhaps the most important aspect of using IC's is to make sure they are licensed as an independent business with the state.  This is simple to do at the Department of Revenue's website.

L&I has a list of documents they'll want to see.  These include payroll ledgers, check registers, general ledgers, profit and loss reports, IRS forms (940, 941, 1040, 1065, 1120, 1120s, and W-3), cash disbursement journals, contracts, invoices (both payable and receivable), and the list goes on.  They don't want to see these for just a few days worth of work - they want to see anywhere up to and including 3 years worth of records.  For many of us small time operators this alone can be devastating in terms of time and lost productivity.

I'm using attorney Jennifer Willner for advice on my audit(s).  She helped the Rustands in 2008 and 2009 with theirs.  And she spoke at the WSPSA Annual Conference a couple of years ago.  She knows her stuff on this topic and I'm following her advice.  Her number is 360-392-3995.  Who ever you use for advice and guidance make sure they are experienced in the audit process.

If you think your situation might rise to the industry level then consider bringing it to the attention of WSPSA.  The Association helped the Rustands last year and the result was a new WAC just especially for process servers.  But if you've simply not been doing things the right way.....well then you're probably going to have a problem.

Based on advice from Ms. Willner, and from personal experience, I recommend you make every effort to cooperate fully with the auditor when your turn comes around.  Supply all the data they want and, literally, make the process as easy as possible for the auditor.  You will get no where if you piss them off (excuse my French).  If you get obstinate about turning over records they'll simply slap you with a subpoena and that is not what you want to have happen.

I've had some success in politely, but firmly, negotiating with the auditor.  Believe it or not they do have a heart and it is not their job to put you out of business but they will if they have to.  Most of them don't understand our industry and they use boiler plate forms with wording that sometimes just doesn't make sense to us.  Don't be afraid to ask questions and for clarification on anything which doesn't make sense to you.

I recommend that all communications, prior to the actual audit meeting, be in writing.  Use e-mail for most of it and certified mail, return receipt requested, for really important things.  It is vital you have a record.

My first audit meeting is next Wednesday, June 2nd.  I fully expect things to turn out just fine.  I'll keep you informed.

Comments (2)
Robin Mullins May 28th, 2010 10:22:59 PM

You're working on a personal injury case, an auto tort.  The statute has already run and 80 of the 90 days on the filing have already elapsed.  You've made multiple attempts at the target address but never found anyone home.  Neighbors say the targets, Mr. & Mrs. Smith, live there.  For the first time in all your attempts a car is parked in the driveway so you call your office and get the plate run through IVIPS.  Sure enough the plate comes back registered to the Smiths.  You knock on the door and a man answers.  "Mr. Smith?" you ask.  He looks you up and down and says, "No, I'm not."

What is your next move?

Comments (5)
Robin Mullins May 10th, 2010 06:51:50 PM

During the just finished WSPSA Spring Seminar a question arose regarding an individual's immunity from service of process.  There is at least one circumstance under which such immunity might be granted.  You'll notice I used the conditional "might" since, as you'll see, the immunity is by no means foolproof.  I reviewed a number of Washington appellate and supreme court decisions and the following (Click Here and then search for 54518-3-1) case summarizes the situation as well as any I found.

There is a rational basis for granting immunity from service of process for non-residents but not residents.  The basis for the distinction is apparent from the purpose underlying immunity for non-residents: The underlying purpose of the rule extending immunity from the service of unrelated civil process to nonresident suitors and witnesses, attending upon a local civil judicial proceeding, is to insulate the pending litigation against the interference and vexation which might arise from the untimely intervention of unrelated litigation.  It proceeds upon the ground that courts should not permit the progress of a civil trial to be interrupted by the service of process in other civil suits, the portent of which could prevent or tend to discourage the voluntary attendance of those nonresident persons whose presence is essential or desirable if justice in the pending cause is to be fully and fairly administered. The privilege of the immunity is, therefore, primarily a privilege of the courts rather than a privilege of the individual, resting, as it does, upon the foundation of judicial convenience and the furtherance of the orderly and unfettered administration of justice.  The exemption provided by the privilege, however, is not one to be arbitrarily and rigorously enforced upon all occasions; but, rather, it can and should be extended or withheld only as judicial necessities dictate.

My interpretation is that if you only have one shot at service, and it is while the servee is in the state for another legal matter, then you might want to take it.  That said, this is definitely the type of situation where your client should make the decision.  The service might hold or, on the other hand, it might not.  It will all depend on how the court interprets the "dictate" of the "judicial necessities."

Comments (0)
Robin Mullins April 26th, 2010 04:10:29 PM

In researching the meaning of residency I fairly quickly came across some information at the Washington Secretary of State's website that seems to answer the question.  Well, if not an answer then an explanation.

To be eligible to register to vote in Washington, you must be a resident of the state. The term residence is used differently for a variety of legal situations. For example, residency for tuition at a state college is defined by statutes dealing with state institutions of higher education. Residency for unemployment benefits or financial assistance is defined by statutes dealing with those topics. Similarly, for the purposes of voting, residency is defined in the State Constitution and in election statutes.

I've underlined what I think is the really important part of the paragraph.  It actually follows up well from my previous post where I described how the Department of Revenue views residency.  Basically the term "residence" will have different meanings in different contexts.  DoR will look one way, L&I another, and the Secretary of State in yet a third.

This is distinctly unsatisfying.  

Comments (0)
Robin Mullins April 21st, 2010 11:28:10 PM

With the passage into law of the requirement that process servers in Washington, who serve for a fee, must be a resident of Washington, questions have arisen as to exactly what it means to be a resident.  Gary Turpen (owner of Gary's Process in Renton) gave me some information he found on the Department of Revenue's website.  To read the original just click here.

For DoR purposes a person is a resident of the state if they meet any one of the following 9 tests.  NOTE:  For DoR's purposes, a person may be a resident of more than one state.

1.  Maintains a residence in Washington for personal use.  This is interesting in that it raises the question of what constitutes a "residence."

2.  Lives in a motor home or vessel which is not permanently attached to any property if the person previously lived in this state and does not have a permanent residence in any other state.  Hmmm, OK.

3.  Is registered to vote in this state.  But I think being registered to vote requires being a resident.  Circular logic?  Perhaps.  Looks like more research is needed here.

4.  Receives benefits under one of Washington's public assistance programs.  Ditto #2 above.

5.  Has a state professional or business license in this state.  Now this is truly interesting.  So a person could live in another state, but have a business license in Washington, and would be considered a Washington resident based on that license.

6.  Is attending school in this state and paying tuition as a Washington resident or is a custodial parent with a child attending a public school in this state.  Ditto #2 again.

7.  Uses a Washington address for federal or state taxes.  Another very interesting item.  So a person could live in another state but use a Washington address to pay taxes and therefore be considered a Washington resident.  

8.  Has a Washington State driver's license.  OMG, more homework.  Now I need to look up how the Department of Licensing issues driver licenses.

9.  Claims Washington as a residence for obtaining a hunting or fishing license, eligibility to hold public office or for judicial actions.  A final ditto on #2.

A couple of things to keep in mind.  This information only applies to the way the Department of Revenue looks at residency.  Also, it must apply to the person doing the actual service, i.e. the person whose signature will be on the proof of service.

I'll see what I can do to find out how other parts of state government look at residency.

Comments (0)
Robin Mullins April 20th, 2010 10:41:29 PM

The first WSPSA Spring Seminar went off rather well in Shoreline on April 27th.  Attendance was about right for a first effort and the Committee hopes to repeat this program next year.  If you would take a moment and complete one of these two polls it would be very helpful.

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Use this link to view my presentation on The Business of Serving Process.  There are a number of pdf attachments you will find useful.  In particular you will find 4 sample IC contracts embedded in the last slide.

The Business of Serving Process.ppt

If you would like to make a comment about the seminar, or about such events in general, please use the comment link below.

Comments (0)
Robin Mullins April 18th, 2010 12:00:37 PM

I found the following in the Dallas Morning News.

"And as his academic and professional background might attest, he's part of a new genre of repo guys – and women – who have gone highbrow in their approach to repossessing vehicles. At Hide & Seek, recovery agents use video cameras, BlackBerrys and laptops to do their jobs.

In addition, many reputable agents have taken the Certified Asset Recovery Specialists national certification program, which includes ethics, skip tracing, insurance coverage and tow truck operation.

"You can't get in the business and be legitimate with just a driver and a truck and a computer," said Thomas, who said he has been in the industry since 2005 after working several years as an analyst for the federal government."  (emphasis mine)

Hmmm, do you think process servers could use a Certified Process Server Specialist national certification program?  Hmmm, and maybe it should include ethics and skip tracing and insurance and maybe a few other things?

Naw, never happen.  Process servers don't need training.  

Do we?

Click here to read the entire article.

Comments (4)
Robin Mullins April 12th, 2010 09:39:43 AM

I was just alerted to another major instance of sewer service arising out of New York.  The industry needs to wake up and smell the roses (or, in this case, skunk cabbage).  Whether you think it is just a few bad apples about to spoil the barrel or, as I do, believe the problem is pervasive throughout the industry, either way the barrel is getting spoiled.  There are agencies falsifying proofs of service, others are requiring servers to sign blank proofs, still others are having office staff apply digital signatures, some who rewrite proofs to suit their needs, and more who forge server's signatures.

These bad apples are ruining the lives of hundreds of thousands of people through acts of perjury and forgery.  And they're going to ruin what should be a respected profession.  Our clients and the courts should be able to trust without question a professional process server's proof of service.  Unfortunately, it is rapidly approaching the point where they will be forced to do just the opposite.

Here's the article as found on the State of New York Attorney General's website.

BUFFALO, NY (April 7, 2010) - Attorney General Andrew M. Cuomo today announced that his office has shut down a Brockport-based process server company that repeatedly claimed in legal affidavits that its employees had made proper service of legal documents to thousands of consumers when in fact it had not. We Serve It For You served summonses, complaints and other legal documents on individuals on behalf of law firms.

Attorney General Cuomo’s Office entered into a settlement requiring Brockport-based We Serve It For You Process Serving Agency, LLC, operated by Joanne Marie Coy, John Coy, Theresa Buehler, and Wesley Converse, to immediately cease operations and cooperate with ongoing investigations. The business and its owners must also pay fees, costs, and penalties totaling $10,000 and John Coy must surrender his notary public commission. Cuomo’s office began investigating We Serve It For You in 2009 as part of an ongoing probe into debt collection lawsuits.

“The toxic business practices of this company impacted individuals across New York State,” said Attorney General Cuomo. “People need to have trust in the legal system, and that’s why we are banning this company and its owners from serving legal documents to the people of New York.”

Generally, process servers deliver legal papers via one of three methods: to the defendant personally (actual service), to a person of suitable age and discretion at the location of the intended person to be served (substitute service), or to the door of the intended person’s actual location and by mail to their last known address (“nail-and-mail” service). After providing service to the intended recipient, process servers would print an affidavit of service to prove that they had indeed provided the legal documents to the defendant.

Attorney General Cuomo’s investigation determined that those documents were regularly signed and mailed to John Coy, who would notarize them without witnessing the signature. From 2007 to 2009, We Serve It For You served approximately 54,000 complaints and maintained a database detailing each service. The Attorney General’s Office and the Unified Court System determined that:

• On more than 1,100 occasions, We Serve It For You process servers claimed to have made service or service attempts at two or more places at the same time.
• On more than 700 occasions, We Serve It For You process servers claimed to have made service or service attempts before they even received the documents to serve.
• On tens of thousands of occasions, John Coy notarized the signatures of We Serve It For You process servers when he did not witness the signatures.

Through the agreement with Attorney General Cuomo’s Office, We Serve It For You and its operators are permanently barred from having any legal or beneficial interest in any business involving the delivery or service of legal documents. The business will permanently cease all activities and dissolve.

We Serve It For You and its operators are also required to cooperate with the Attorney General’s ongoing investigations into illegal debt collection practices.

The settlement follows recent action against another process server, American Legal Process (ALP), which engaged in a similar fraud and caused more than 100,000 consumers to have costly judgments entered against them without the chance to respond or defend themselves in court. Aside from a civil suit and criminal prosecution against the owner of ALP, Cuomo’s office is seeking to have more than 100,000 default judgments that were caused by the faulty service overturned. More information about that case and tips on how to avoid bad debt collection practices can be found online at the Attorney General’s website www.nydebthelp.com.

The case is being handled by Assistant Attorneys General James Morrissey and Nathan Reilly, in conjunction with Dennis Donnelly, George Danyluk, Aric Andrejko, and Dan Johnson of the Internal Audit Unit of the New York State Unified Court System.

Comments (2)
Robin Mullins April 8th, 2010 09:00:00 AM

The Washington State Process Servers Association is presenting a full day seminar on Saturday, April 17th, in Shoreline just north of Seattle.  There will be six sessions starting at 9 a.m. and running until 4 p.m.  The first five sessions will feature experienced process servers speaking on topics relevant to the profession.

Robin Mullins (that's me ;-) will cover a variety of business topics ranging from how to register with your county auditor to setting up your business structure to making sure you know the difference between an IC and an employee.

Jim Cronin's topic is report writing as it relates to declarations of diligence.  Our clients and our courts know us primarily through the written word.  One way to impress a client is to provide well written descriptive declarations in those instances where the canned language of standard proofs of service simply isn't enough.

Gary Turpen's company probably posts more foreclosure documents than anyone else in the state.  He'll talk not only about postings but also how to conduct foreclosure sales.  Gary has seen nearly every situation conceivable in this specialized area of process serving and he'll share the solutions with us.

Pat Mahoney is (in my humble opinion) one of the best, if not THE BEST, process server in the state.  He's got 17 years under his belt in and around the Seattle/King County area.  Guns, dogs, you name it and he's faced it.  For tips and tricks there is no one better.

Eric Vennes, after many years as the owner of Northwest Legal Support, is now in the insurance business and specializes in writing policies covering process servers and private investigators.  He'll discuss all of the nightmare scenarios which can result in the process server being served instead of doing the serving.  From the liability point of view, process serving can be a high risk business.

But what about the sixth hour?  Frankly it should be the most fun and interesting!  We're hoping that most, if not all, of our speakers will hang around until 3 o'clock when they'll form a discussion panel to take your questions and offer advice on every aspect of the industry.

Here's a sample of what you'll come away with:
1.        Tips on how to accomplish those difficult serves that stymie the competition.
2.        How to post bare land in remote areas and when to tell the client you can't.
3.        Write a drop dead Declaration of Diligence sure to please your client and impress the judge.
4.        Knowing when to press hard to accomplish a service and when to back off to save your skin.
5.        Are you an IC or an employee and how to tell the difference.
6.        AND MUCH MORE.

And did I mention that the Washington Association of Legal Investigators (WALI) is holding a seminar the same day in Spokane?  Indeed they are!  And they'll have their own great set of topics valuable to both process servers and private investigators.  If you're in eastern Washington then Spokane is the place to be on April 17th.

WSPSA Spring Seminar Registration Form.pdf
WALI Spokane Spring Seminar Schedule April 17th.doc
WALI 2010 Spring Seminar Application .doc

Comments (1)
Robin Mullins April 1st, 2010 02:01:35 PM

After three years of effort, WSPSA was able to pass a bill through the Washington legislature which provides some measure of protection to our members along the borders with Oregon and Idaho.  It does this by placing a new requirement on who can serve process in this state for a fee.  Here are the details.

There had been concerns for years about out of state servers encroaching into the border areas of Washington.  The primary concern was along the Oregon border in the Clark County area and north as far as Thurston County.  Since Washington did not have a residency requirement the Oregon servers could come north and take work away from WSPSA members but Washington servers could not respond in kind.  The reason being that Oregon has long required anyone serving process there to be an Oregon resident.  WSPSA approached OAPS (our sister association in Oregon) regarding this issue.  At one point it was even suggested OAPS consider backing a bill in the Oregon legislature to remove their state's restriction but OAPS politely declined.

The first year the bill was introduced in Olympia it included not only the residency requirement but also a change in who the Department of Licensing was allowed to provide the "second" address on vehicle registrations.  We access this information via a system known as IVIPS.  The report shows two addresses, first is the mailing address and second is the physical address.  About six or seven years ago we accidentally lost (long story) access to the second address.  So this initial bill included not only the residency requirement but also the language needed to get back that second address.  Everything was flowing smoothly, there was no opposition, and the bill was progressing through the system nicely.  And then, just as a deadline was reached, a clerk in the legislature mistakenly left the bill sitting in the bottom of a basket.  It literally didn't move from one side of a room to another.  The deadline passed and that was it, the bill died.

Last year the bill was reintroduced.  Since there hadn't been any opposition the previous year none was expected this second time around.  Wrong!  A group supporting the interests of people suffering sexual abuse and domestic violence took notice of our bill.  They showed up and testified against it.  Without going into all the details let me simply say those people carry a lot of weight in Olympia.  They killed our bill because of the section regarding access to the IVIPS second address.  We worked hard to convince them we're the good guys but couldn't quite turn the corner with them.  The bill died.

This year we dropped the IVIPS section and went strictly with the residency request.  And, wouldn't you know it, one of the committee chairs had some suggestions to improve the bill.  He wanted to remove the long existing exemption for employees of registered process servers.  At first this almost killed the bill.  We weren't sure we could accept this change.  Over a period of a few days, having given things much thought and having listened closely to the sage advice of our ace lobbyist, Steve Lindstrom, we decided we could accept this change.  The bill moved forward through the various committees and through both houses and was finally signed into law by the governor on March 18, 2010.

The bill changed RCW 18.180.010 in a couple of ways.  Keep in mind 18.180 RCW only deals with process servers who serve for a fee.  If someone wants to serve for free they are exempted from its requirements.  

The first change adds the residency requirement.  If you serve process for a fee in Washington you must be a resident of Washington.  Service (for a fee) by a non-resident will subject the proof of service to attack.  By that I don't mean there is going to be a "proof police" out scouring the woods for process servers from another state.  No, it is worse than that.  If a non-resident serves process (for a fee) then the proof of service could be overturned in court.  In the highly technical legal language used by process servers that would be a "bad thing" because the server is likely to be held liable for what ever happens to the case.  Lord help any non-resident server if the case is a million dollar personal injury case or multi-million dollar property foreclosure.  Many attorneys know a good way to kill the opposition's case is to defeat service.

The second change removes the registration exemption previously afforded employees of registered servers.  This will effect companies such as mine because our servers are employees and not IC's.  It will have some effect on companies using IC's since they may also have employees, such as secretaries, who don't normally serve process but do on occasion, such as when a servee comes into their office to be served.  My plan is to register everyone who works for me.

Now, there is a third change with the addition of the language which says servers must be at least 18 years of age but this already existed in court rules, so it isn't really a change.  We put it in the statute for the sake of consistency.

Here is a link to the final bill:  Click here.

If you have questions please comment and I'll get back to you.  Or, if you like, you may call me at my office, 360-671-2455, and we can talk about it.

Comments (0)
Robin Mullins March 30th, 2010 02:31:25 PM

As reported in previous posts on this blog, and on that of Jeff Karotkin, a few process servers in New York City have helped that city once again make history.  The city council has enacted one of the most far reaching and stringent statutes ever seen in this country in an effort to control sewer service - which is process server slang for perjury.  Process servers for American Legal Process boxed up and dumped in the city sewers thousands upon thousands of court documents and then signed proofs of service testifying, under penalty of perjury, that they had served those documents upon the defendants.  False testimony, they did it over and over again.  American Legal Process had a reputation for being able to serve anyone and they could do it for  really low fees.  No wonder, they never left their office!

The problem is, this behavior on the part of process servers is not limited to the confines of NYC.  It has turned up in multiple states including, but not limited to, Massachusetts, Florida, California, and Minnesota.  AND THERE IS VERY GOOD EVIDENCE IT IS HAPPENING HERE IN THE STATE OF WASHINGTON.  I know of two companies who are currently practicing this behavior right here in my home state.  

With any luck the legislature or the state supreme court will step in and bring process servers to heel.  Before it is too late.  Before hundreds or thousands or tens of thousands of individuals are adversely affected by a few lousy process servers who want to make a buck so badly they'll check their integrity at the door.

Comments (0)
Robin Mullins March 25th, 2010 10:04:01 PM

The Washington State Process Servers Association (WSPSA) and the Washington Association of Legal Investigators (WALI) are both holding Spring seminars on April 17th.  The WSPSA program will be in Shoreline just north of Seattle.  The WALI program will be in Spokane.

This is an outstanding opportunity for process servers and investigators to not only enjoy great learning experiences but also to get to know each other on a personal basis.  Many of the skills used in each profession are easily transferable to the other.  Also, if you're a process server and think investigations might be a useful addition to your service line then the seminar in Spokane is just what you are looking for.  Likewise, many investigators serve process, or may be thinking about doing so, and Shoreline will be just your ticket.

Here are links to the needed registration forms for each seminar.

WSPSA Spring Seminar Registration Form.pdf
WALI Spokane Spring Seminar Schedule April 17th.doc
WALI 2010 Spring Seminar Application .doc

Comments (0)
Robin Mullins March 22nd, 2010 11:09:41 PM

With my previous post about the looming B&O tax increase I think I may have opened the political door just a bit.  This blog isn't about politics except as it may relate to service of process.  However, I opened the door a bit and now I want to gently close it with a touch of explanation.

Like I said in the previous post, I'm a centrist voter.  My goal as a citizen is to listen to all sides, evaluate the material (what ever it might be), and make a personal judgment on it.  Then, at the proper time, I participate in the grandest and longest running revolution this small world has ever seen (the American Experiment) by voting in every election.  I always try, though I don't always succeed, to cast an informed vote.  This is my duty, indeed my most sacred duty, as a citizen.

I may be naive but I am convinced that the citizens of a country are responsible for the government of that country.  This is especially so in a democratic republic such as ours.  I hold myself personally responsible (along with the other 300 million of us) for the conduct of our government.

Which brings me back around to my post about the B&O tax.  The legislators in Olympia are my (our) employees.  I have voted for (helped hire) members of both parties.  Unfortunately the members of the majority party are proving themselves (in my opinion) to be inadequate for the job at hand.  Therefore it is incumbent upon me to work towards their replacement.  If that replacement also fails then the process is repeated until I (we) finally get it reasonably correct.

I don't stand particularly left or right, conservative or liberal, Democrat or Republican.  I don't believe any certain manner of thinking is the correct and only one.  The entire spectrum, from far left to far right, has pieces of value for me.  

My bottom line is personal responsibility.  I believe (though I may be wrong) the state needs to control its spending more than what it has done so far.  But, if the state continues to increase spending, and the taxes to support that spending, then it is because this is what a majority of our citizens want.  The politicians are just there doing the job we (the collective we) hired them to do.  Don't blame the servant for the master's mistakes.  And we are the masters.

Comments (1)
Robin Mullins March 17th, 2010 10:32:45 PM

Most people are aware of the budget problems besetting the State of Washington.  What you may not be aware of is that once again Olympia is looking to tax its way out of the budget deficit in large part on the backs of small business.

The state Senate is proposing a .25 increase in the B&O tax (an income tax on business) as it applies to businesses in the service category (that's you and me).  If accepted the B&O rate we pay will increase from the current 1.5% of gross income to 1.75%.  Another way of looking at this is to view it as a 16.7% tax increase (.25 is one sixth of 1.5).

The state House of Representatives, not to be out done by their colleagues in the Senate, are proposing a .5 increase in the B&O tax.  If accepted this will move the rate for businesses in the service category from 1.5% to 2.0%.  This is a 33.3% increase (.5 is one third of 1.5)!

I've written my Democratic legislator and let her know she has lost my vote.  I've also let her know that my employees will know why they aren't getting a raise this year.  I'm a centrist voter.  Depending on the topic I've voted for both parties.  But this time I strongly suspect my next ballot will be a party line vote for the Republicans.

Comments (3)
Robin Mullins March 17th, 2010 09:48:47 AM

WSPSA has revised their pricing for the upcoming seminar on process serving.  They are now offering members of WALI (Washington Association of Legal Investigators) the same great price available to WSPSA members.  

So if you're a member of WSPSA or WALI you can get a full day of education on process serving for only $99.

See the registration form on my previous post.

Comments (0)
Robin Mullins March 8th, 2010 01:37:09 PM

The Washington State Process Servers Association is presenting an all day seminar on process serving and related topics.  It is scheduled for April 17, 2010.  The venue is the Shoreline Community Center located at 18560 - 1st Ave. NE, Shoreline, WA 98155.  A series of 1 hour talks beings at 9 a.m., breaks for an hour at noon, and continues on until 4 p.m.

Speakers include Gary Turpen, Pat Mahoney, Jim Cronin, Eric Vennes, and Robin Mullins.  Topics will be wide ranging from report writing to postings and sales to risk management to the business of doing business.

Lunch is included in the registration fee.

If you have questions please call Linda Duralia in Bellingham at 800-321-2455 or local 360-671-2455.

Use this link to open the registration form.   Follow the instructions on the form to reserve your place at the seminar.

WSPSA Spring Seminar Registration Form.pdf

Comments (0)
Robin Mullins March 7th, 2010 09:07:32 PM

I checked my e-mail this morning and received wonderful news from WSPSA lobbyist Steve Lindstrom.  SHB 1913 passed the senate last evening and is now on it's way to the governor's desk.  It makes to major changes for process serving in Washington.  In addition to already existing requirements anyone serving process for a fee must:

1.  Be a resident of the State of Washington.
2.  Be registered with their county auditor - This now includes employees of registered process servers.

It took 3 years and several amendments but we finally made it.  Representative Judy Warnick was the prime sponsor.  She and the WSPSA Board of Directors are to be thanked and congratulated.

This is the way a representative democracy is supposed to work.  

Here's a link to the bill - Click here.

Comments (0)
Robin Mullins March 3rd, 2010 09:38:39 AM

For those of you who may not know him, Jim Cronin is a private investigator located in the Mukilteo area.  He is a VERY active member of WALI (Washington Association of Legal Investigators).  And, of course, he does some service of process now and then.  Though I only know him over e-mail I've found him to be just a tremendous fellow.  Very professional and very sharing with his knowledge.  Here is a Jim Cronin "Tid Bit" I received today.

Here’s a little tidbit that might be of interest to process servers. If they have to serve an attorney, and he/she is being difficult, they can search by the attorney’s WSBA# to check this site to see what court appearances the attorney has scheduled and serve him/her at the courthouse.

http://www.mywsba.org/Default.aspx?tabid=177

http://dw.courts.wa.gov/?fa=home.attyTerms
 

	Jim Cronin, MPA, CFE Seattle Insurance and Legal Investigations
	PO Box 1327, Mukilteo, WA 98275
	( (206) 992-1555       FAX: (425) 514-0615

 

 

Comments (1)
Robin Mullins March 2nd, 2010 11:17:56 PM

One step closer.  I just learned our bill, SHB-1913, has moved out of the Senate Rules Committee and is now eligible for action on the floor of the Senate.  If it passes then it goes to the governor.

Comments (0)
Robin Mullins February 28th, 2010 04:47:48 PM

Being "in the news" is not generally a good place for process servers.  Let me give you a few examples.

#1 - Process servers commit perjury via sewer service in New York and Boston - Click here and here.

#2 - Process server commits murder, assault, and armed robbery in Las Vegas - Click here and here.

#3 - Process server arrested for unlawful use of weapon and criminal trespass in Castle Rock - Click here.

Folks, this is not the kind of PR we need.  It is definitely attracting attention but it is the kind of attention we can do without.  

As mentioned in an earlier post, New York is proposing to require process servers to carry GPS tracking devices whenever they're working.  Can you blame the authorities for doing this?  No, we can only blame ourselves.

We make our living based on the value of our signature and yet too many of us place no value at all on our own signature.  So how can the courts trust us?  

I expect to see changes in the near future and by that I mean the next four to six years.  I don't know exactly what those changes will be but I suspect most of us won't like them.  I think regulation is in the future and many of us in the business today won't be able to make the cut.

Look at yourself.  Look at those for whom you work.  Do you like what you see?

Comments (0)
Robin Mullins February 27th, 2010 06:27:46 PM

After three years of effort it looks like Washington process servers will finally receive a protection afforded process servers in many other states.  HB-1913, which adds a residency requirement to RCW 18.180.010, is advancing nicely under the watchful eye of our ace lobbyist Steve Lindstrom.

Here is the current wording of RCW 18.180.010.

(1)	A person who serves legal process for a fee in the state of Washington shall register as a process server with the auditor of the county in which the process server resides or operates his or her principal place of business.
(2)	The requirement to register under subsection (1) of this section does not apply to any of the following persons:
	(a)	A sheriff, deputy sheriff, marshal, constable, or government employee who is acting in the course of employment;
	(b)	An attorney or the attorney's employees, who are not serving process on a fee basis;
	(c)	A person who is court appointed to serve the court's process;
	(d)	An employee of a person who is registered under this section;
	(e)	A person who does not receive a fee or wage for serving process.

And here is the new wording as proposed in the bill.

(1)	Except as provided in subsection (2) of this section, a person who serves legal process for a fee in the state of Washington shall:
	(a)	Be eighteen years of age or older;
	(b)	Be a resident of the state of Washington; and
	(c)	Register as a process server with the auditor of the county in which the process server resides or operates his or her principal place of business.
(2)	The requirements under subsection (1)(b) and (c) of this section do not apply to any of the following persons:
	(a)	A sheriff, deputy sheriff, marshal, constable, or government employee who is acting in the course of employment;
	(b)	An attorney or the attorney's employees, who are not serving process on a fee basis;
	(c)	A person who is court appointed to serve the court's process;
	(d)	A person who does not receive a fee or wage for serving process.

NOTE:  There are two major changes.

First, of course, is the residency requirement.  Once the bill passes a person must be a resident of the State of Washington if he/she wants to serve process for a fee in this state.

The second change is the removal of the employee exemption.  Once the bill passes ALL process servers, who serve for a fee, must register.  Being an employee of a registered server will no longer exempt a server from registering.

We're very close but we're not there yet.  It must still pass the Senate Rules Committee and the full Senate.  Then it needs the Governor's signature.  Stay tuned.

Comments (2)
Robin Mullins February 27th, 2010 02:40:33 PM

Randy Bennett was kind enough to forward the following links along.  Educate yourself or suffer the consequences.

http://www.miamiherald.com/2010/02/22/1491994/beware-of-independent-contractor.html

http://www.nytimes.com/2010/02/18/business/18workers.html?em

http://www.gsmlaborcouncil.org/node/4597

Comments (0)
Robin Mullins February 27th, 2010 02:28:31 PM

The people at NAPPS headquarters in Portland really keep their ear to the heart of the membership.

After receiving a "few" phone calls and e-mails (OK, and maybe a blog post or two) from members, Gary Crowe, NAPPS Administrator, took the bull by the horns and resolved the Post A Job issue.  Recall that when it was first instituted the Post A Job system would send notification to all NAPPS members, regardless of where the actual job needed to be done.  Well this past week the following was sent out by Gary and his crew.

Dear NAPPS Member:
Fifteen minutes ago we launched the updated version of the NAPPS Job Post which incorporates the following changes:

1)  The member's name and company is placed automatically in the body of the post.

2)  If a zip code is used in the post, only members within a 50-mile radius of the zip code will receive the emailed post.

3)  If only a city and state are used in the post, only members that have a listing under that city will receive the emailed post.

4)  If a city, state AND zip code are used in the post, only members within a 50-mile radius of the zip code will receive the emailed post.

5)  If a member chooses to opt-out of system there is now a simple automated link at the bottom of each post.

6)  Jobs can now be posted in Canada by inputting only the City and State (the state acts like a Canadian territory).  Canadian zip codes will NOT work on this system.

This notice is also being sent to those members that have already opted out of the system in order that they may opt back in.  If you have already opted out and wish to opt back in, please send an email to claire@napps.org with OPT-IN in the subject line.

We strive to make this a useful tool for our members and have appreciated your patience while we have fine-tuned the system.

Gary A. Crowe

Nice!  Thank you Gary, much appreciated.

Comments (0)
Robin Mullins February 27th, 2010 01:54:42 PM

WSPSA member Randy Bennett reports his company, Seattle Legal Messengers, was recently audited by Employment Security and passed it with flying colors.  Randy uses the employee business model and, by all appearances, seems to be doing well with it.

Randy emphasized one important point over and over - Don't let the auditor come into your office.  Apparently there is no requirement that you let them through your door.  Instead, let them know you'll meet with them at a neutral location and you will bring everything they want to see to that meeting.  Randy's office is in Seattle but his CPA is in Mount Vernon so he proposed to use the CPA's office as the meeting place.  The auditor agreed and the meeting went off without a hitch.

Comments (0)
Robin Mullins February 27th, 2010 12:12:50 PM

A WSPSA member was kind enough to forward along the attached pdf document.  The company he works for is currently under audit by L&I.  One of his IC's said he received the questionnaire from L&I.  It was quickly determined all of their IC's had received the same questionnaire.  

We already know the IC business model is under close scrutiny at both the state and national levels.  We've been told (more than once) that government (L&I and Employment Security) doesn't think process servers will qualify as IC's under the six part test.  

If you're using the IC business model you should examine the questionnaire closely.  Ask yourself how your IC's will answer the questions.  And note that some of the questions are leading in nature.  

You're going to need to look at how you operate very closely.  Take a very close look at your IC contract (you are using a contract aren't you???).  You may need to change the language in order to account for some of the items brought out in the questionnaire.  

Even though I don't use it at 4th Corner, I am still of the opinion the IC business model makes a lot of sense for our industry.  But it will only work for you if you follow the rules to the letter.  Don't attempt to short cut things.  If you do you're setting yourself up for a big fine from L&I or Employment Security.

If your IC's begin receiving this type of questionnaire I recommend you do not attempt to influence their answers in any way.  Also, don't suggest they don't fill it out.  Think about it for a moment.  How do you think the auditors will classify a worker who doesn't complete and return it?  Pretty obvious those workers will be classified as employees by default.

Here's a link to the document.

L&I Independent Contractor Questionaire.pdf

Comments (0)
Robin Mullins February 27th, 2010 11:46:21 AM

NAPPS has a new feature on their website called Post a Job.  I'm trying to decide whether or not it is a good idea.  Or, let me put that another way, I actually think it is a good idea but I'm having trouble with their implementation.

Currently, if you post a job using this new tool, when you hit the submit button it will be sent to all NAPPS members.  So if I post a job for service in Portland, Maine, members in Los Angeles (along with the rest of the country) will receive the notification.  The only option members have at this point is to opt out of the entire program.  But that hardly seems reasonable because if I've opted out and a job is posted in Bellingham, Washington, (where I'm at) then I'll miss out on the opportunity.  So, as I see it, "opt out" is not an option at all.

Now I give NAPPS credit for efficient use of the subject line in the Post a Job e-mails.  It tells me it is a NAPPS Post a Job and the city and state where the job is intended for service.  So I don't have to open them in order to know it isn't for my area.  Fine and good but as the Post a Job system becomes more popular the number of these e-mails is going to increase from a trickle to a flood.  

NAPPS needs to limit distribution to those members in the area where the job needs to be done.  They could limit it by state or city or ZIP Code or in some other way.  

Like I said above, I think this is a good idea but I think it needs a tweak or two.

Comments (1)
Robin Mullins February 20th, 2010 08:56:36 PM

Given the current real estate economic situation, it is not surprising that we're seeing an increase in the number of suits being brought against banks and other mortgage holders.  The linked announcement from Mortgage Electronic Registration System, Inc., aka MERS, is interesting for two reasons.

First it tells us exactly how to go about obtaining service on MERS.

Second it tells us there may be a number of other entities around the country which go by the same name but are not in any way related to MERS.

I've printed and distributed the attachment to many of my attorney clients.

Click below to see the MERS Announcement.

Comments (0)
Robin Mullins February 20th, 2010 08:38:21 PM

Rumor has it the City of New York is placing some stringent new requirements on process servers doing business there.  Given recent history I can understand why but the word "overkill" might be appropriate.

NYC is proposing to require all process servers to carry GPS devices that will log their location on a regular basis.  The logs will then be made available, though I haven't heard to whom.  A city department?  Most likely.  The general public?  It wouldn't surprise me.

The truly sad thing is that we've done this to ourselves.  I heard someone describe the situation recently by saying "Service of process has become a commodity" and "The big companies have investors who are expecting a return and demand efficiencies in the systems."

A commodity - Is that all it is we do?  Harvest a commodity?  Have we lost sight of the 5th and 14th amendments?  Have we forgotten how basic our job is to the very bedrock of our society?  

It appears we have.  And the results are beginning to make themselves evident.  As some of us attempt to fill those demands for efficiency corners will be cut.  Some, who can't reach the level of business they want by honest means, will do as was done in New York, they'll commit crimes such as perjury and forgery.  

But beware the backlash.  GPS trackers are only the start.  We're making our own bed - at some point we'll have to sleep in it.

Comments (1)
Robin Mullins February 20th, 2010 12:22:40 PM

Late Thursday afternoon, the 18th, one of my servers had a rather unnerving experience while serving out in a rural area between Bellingham and the Canadian border.  Here's the link to a newspaper article - http://www.bellinghamherald.com/onpatrol/story/1299672.html

Many of us have ad similar experiences.  I've had a few myself, some involving guns or other weapons.  It looks like my server, Mark, did an excellent job of extricating himself from the situation.  Overall serving is a low risk job but, when something does occur, it can be frightening.  

I gave Mark the day off yesterday, with pay.  He needed to settle his nerves.  I plan on having a meeting with my servers within the next week to debrief Mark and attempt to analyze what happened and how it happened.

Be safe out there.

Comments (0)
Robin Mullins February 20th, 2010 08:42:01 AM

Over the past few days I've had occasion to observe the current WSPSA Board wrestle with a difficult topic - the expenditure of between $2,000 and $3,000 on a new website.  The debate has been conducted via e-mail and nearly every member of the Board has been involved.  Some very difficult questions have been put to those proposing the expenditure.  Information has been demanded and provided.  Arguments have been very thoughtful and civility has been maintained at all times.

As I mentioned in my last post I'm not currently a member of the Board.  I am simply a member.  And as a member I am very proud of our Board.  They are fulfilling their duties of office.  They are watching over our treasury and our membership.

They are leading.

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Robin Mullins February 19th, 2010 11:55:18 PM

Two friends sent me links to the same article today.  Here's the link:  http://www.nytimes.com/2010/02/18/business/18workers.html?em

Of particular interest in the article is mention that the rules regarding the use of IC's are changing.  After 30 years or more the IRS rules are being rewritten.  What they're going to say is anyone's guess at this point but I think it is reasonable to assume they will make it harder to qualify your workers as IC's.  And I wouldn't be at all surprised to see state rules (the six part test) adjusted similarly.

A good many WSPSA members utilize the services of IC's.  State employees with L&I and Employment Security have stated (on multiple occasions) they don't think process servers qualify under the existing six part test and a series of audits appears to be under way.  Who knows what things will look like if the rules are tightened even further.

I think WSPSA understands its obligation to offer assistance, under certain circumstances, to its members who are under audit.  I also believe WSPSA will be involved in fighting unreasonable changes to the six part test.  But if the Federal government is involved, well that changes things.  WSPSA's "war chest" is very small.  Perhaps NAPPS will become involved at that level.

If you are using IC's at this time you need to understand the current rules and you need to understand them very well.  You need to make certain you've got your house in order - if you don't you will fail an audit and the results could cost you dearly.

By the way, just to be clear, I am not attempting to speak for WSPSA.  I'm a member but I'm not on the Board.  But I certainly know WSPSA members and its Board quite well.  Given their actions in the past I think the above statements will be proven close to the mark.

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Robin Mullins February 19th, 2010 11:25:15 PM

This posting completes my direct analysis of the six part test used by Washington to determine whether or not a worker is an employee or an IC.  The sixth test is very similar to the fifth in that it is fairly simple to determine whether or not the worker can be classed as an IC.

6.  Maintain Books - If you want to use IC's you must make certain they are maintaining their own set of books.  They need to keep some kind of accounts receivable and payable.  They need to file their own tax returns (see tests 4 and 5).  They should maintain a checking account separate from their personal account just for business related income and expenses.  

I understand some IC's don't want to bother with this boring side of being in business.  They're process servers not bookkeepers!?!  The only problem is, if you get audited and the auditor looks closely at your IC's, and discovers they aren't keeping their own books - well you fail the six part test.  When he's done the auditor will hand you a bill for three years taxes plus penalties plus interest!  Now how much trouble is it to make sure your IC's are keeping their own books?  Given the alternative I don't think it is much trouble at all.

SUMMARY
I'll take a moment here to muse about what I've covered on this topic over the past couple of weeks.  And, because it was the department which is triggering so much angst in our industry right now, I'll say a few things about L&I.  But keep in mind that pretty much the same applies to Employment Security and the IRS.

We've been told by L&I that they are focusing on the process serving and legal messenger industry.  Some companies have been audited already, some are under audit, and others are sure to follow.  It doesn't matter how small you are you need to prepare for the knock at the door.

The interesting thing is, L&I is a creature of business.  It was created to solve some serious problems businesses were having with their employees.  Namely they were getting sued on a regular basis by injured workers.  Judgments were being handed down which crippled many companies and pushed others out of existence.  The solution was a system of insurance in which both sides, workers on one and business on the other, agreed to certain trade offs.  Workers gave up their right to sue and employers agreed to fund L&I.  

But time has taken its toll and the original problems have been forgotten.  Many in business now chafe under what are seen as burdensome taxes.  Some employees game the system and milk it for every paid day off they can get.  And society itself has changed thus making some of the established ways of doing things outmoded and outdated.

Process serving, though an ancient profession, seems to have slid under the government radar until only recently.  When L&I finally began to take some notice of us they attempted to apply their existing rules to a group for which they didn't even have a classification.  After considerable effort and negotiation L&I finally established a classification for us under the private investigator / security guard heading, 6601-07.  

We are an unusual industry.  We don't really fit the norm when it comes to government's preconceptions about business.  Even the application of the six part test doesn't make sense.  The test was created to keep prevent abuses in industries much larger than ours.  The most prominent of which is the construction industry.  We have little in common with most other businesses.  I don't think it would be a stretch to say we're somewhat unique.

I've received some information from my friend Tony Klein in California.  The process servers there have already gone through the problems we are now encountering.  As time permits I'll examine it and attempt to determine its usefulness to our situation.

I urge all of you, whether you use employees or IC's, to learn the law as it applies to your business.  Apply what you learn and play within the rules.  If you don't think the rules are fair then work to change them.

Comments (0)
Robin Mullins February 7th, 2010 05:09:59 PM

In my opinion, the first four tests are subject to a fair amount of interpretation and debate.  Here in #5 we're given a test that appears straight forward and lends itself to fairly easy compliance.

5.  Required Registrations - Have your IC's complied with all requirements for the operation of a business in Washington?  To answer this question in the affirmative you'll need to do a little background work but it is nothing onerous.  Have your IC's satisfied the following?

Department of Licensing - DoL requires the completion of a Master Business License application.  If you're in business in Washington you need to fill one out and submit it.  In return you'll receive a UBI number (Universal Business Identifier).  UBI numbers are used by various agencies to identify you as a valid business in Washington.

Department of Revenue - Anyone doing business in Washington needs to register with DoR.  In doing so they will receive the honor of paying the B&O tax (Business & Occupation - This is really a state income tax on business but that is another story for another day).

Local government - Many local governments have registration requirements.  You need to know with which each of your IC's need to register.  Usually they'll need a city or county business license.

Employment Security Department and the Department of Labor & Industries - You only need to register with these if you have employees.  Since many IC's don't have employees they probably won't need to register.  However, they can register and then exempt themselves from the taxes.  This might be worth thinking about because it will go a long way towards establishing them as truly INDEPENDENT contractors.

Department of Social and Health Services Division of Child Support - As with ESD and L&I, a business only needs to register here if they have employees.  When ever a new employee is hired they are to be reported to DSHS.  The purpose is to locate workers who owe child support.  

Secretary of State Corporations Division - If the IC operates as some kind of corporate entity (corporation, S-Corp, LLC, etc) then they must maintain their registration with this office.  I can see some advantages in having IC's who are set up in this way.  Seems to me it would really help a lot in establishing them as IC's.

I'm familiar with a situation where a process server failed to keep up his various registrations.  He went on for almost 10 years without a current UBI number.  But when one of his clients, who was also a process serving company, was audited, he became caught up in that audit.  Why?  Because the state said he was an employee and not an IC - even though they were in substantially different parts of the state!  And frankly, from the state's point of view, that is exactly what he was.  This created problems for him and for the company which was under audit.  Fortunately he has registered and is now square with the state.

Side Note - I don't feel sorry for people who operate a business under the table in order to avoid paying taxes and fees and then cry about it when they get caught.  I may not agree with the way taxes are collected or the manner in which government spends the money but I pay my taxes.  Anyone not paying their taxes is cheating society and is causing me (along with all other honest taxpayers) to pay more than I would otherwise.  There are plenty of honest ways to effect change.  Cheating isn't one of them.

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Robin Mullins February 7th, 2010 12:46:01 PM

Well I'm half finished with this series on the six part test used by the State of Washington in determining whether a worker is an employee or an IC.  From the telephone calls, e-mails, faxes, letters, and posted comments I've received, this is a topic of interest not just in Washington but in other states as well.  Obviously each state is going to treat this topic in its own way but, that said, there is a great deal of overlap across the nation.

As a reminder, you can see L&I's pamphlet on this topic by clicking here.

4.  IRS Taxes - "When you entered into the contract, was this person responsible for filing a tax return with the IRS for his or her business?"  Notice the similarity with test #3.  In particular the use of the past tense "was" in terms of when you entered into the contract.  Let's look at this from a different point of view by asking the question in a different way.

Can I turn an employee into an IC?  It seems the answer would be qualified "no" based on the fact that the worker was not responsible for filing taxes for his business at the time you entered into the contract.  I say "qualified" because it appears the worker could leave your employment, set up his own business (part of which is becoming responsible for the taxes related to the business), and then enter into a contract with you as an IC.  Frankly, this might work but it sounds like something government would attempt to prevent.

 Always keep in mind, government agencies do not like the concept of IC's.  Government's goal is classify all workers as employees.  To achieve that end government will make it difficult, especially for the unknowledgeable, to use IC's.  The claim government makes to support this goal is worker safety.  There is a lot of truth in that claim but I'm sure power and money also enter into the equation.  Thus the use of the past tense in tests #3 and #4.  

As I see it, the most clean cut way of achieving "yes" answers to them is to only contract with people who are already in the process serving business in one form or fashion, have been filing their own business tax returns,  and have never been your employee.  

Comments (0)
Robin Mullins February 7th, 2010 12:10:43 PM

Parts one and two covered supervision and separate business.  Part three is very similar to part two.

3.  Previously Established Business

The test gives us a single question to answer for this part.

Do they have an established, independent business that existed before you hired?  This is similar to test #2 but remember that, according to the rules, you must answer "yes" to all 6 of the tests in order to qualify a worker as an IC.  The question presented here may make it a little difficult to answer "yes" to it if you aren't careful.  As I read this test and speculated in my mind about its implementation by government, I reached the conclusion the contractee (that's you if you use IC's) can only qualify a worker as an IC if you can demonstrate the worker had a full fledged business before you contracted with them.

L&I suggests this demonstration can be made by showing the IC had other customers or was advertising for customers before you contracted with them.  I speculate that other forms of demonstration could be in the form of business licenses, proofs of registration with government agencies such as L&I and Employment Security, 1099's from existing clients, etc.  

The trap that exists in this test is the reference to the past - "... that existed before you hired?"  If you exercise some care I think this is quite doable in many situations.  Make certain a potential contractor has his government registrations in place, has his own business cards, has some kind of advertising page or brochure he can hand out, etc, before he signs your contract and before you assign any work to him.  

In essence, the contractor needs to be able to compete with you and, perhaps, has done so in the past.  If you don't allow an IC the ability to do this then you are removing some of their independence and making them appear to be an employee.  

If the server is an employee you have control but must pay taxes and be subject to various work place rules.  On the other hand, if the server is an IC you may lose clients to him.  I'm aware of a situation in the Puget Sound area where this latter actually happened.  An IC took away several accounts from the company with whom he was contracting.  The company survived but was hurt financially.  

There is always a trade off.  There is no free lunch.

Comments (1)
Robin Mullins February 3rd, 2010 06:47:19 PM

Recall that the first test in determining whether a worker is an IC or an employee related to supervision.  The second test asks whether or not the worker is operating a separate business.

2.  Separate Business

This test is broken down into 3 questions which are joined by the logical operator "or".  Frankly, I'm surprised they use "or" instead of "and" because the use of "or" means you only need to answer one of the three questions with "yes" in order to qualify the worker as an IC.

Do they offer services that are different from what you provide?  There are a lot of different ways this could come into play.  For instance, suppose your business doesn't serve process but acts as an aggregator.  You receive service assignments from a variety of clients but none of those assignments are served by you or your employees.  Instead you contract them out to local IC's who are process servers and do the actual serving.  In this arrangement you clearly do something quite different from what is done by your IC's.  On the other hand, suppose you (or your employees) serve some papers now and then.  In this case you are a process server just like the IC's.  Based on this part of the test, you cannot use IC's.

Or, do they maintain and pay for a place of business that is separate from yours?  This one is fairly simple.  Does your IC have his own office which is separate from yours and for which he pays the rent?  If the answer is "yes" then, based on this part of the test, he qualifies as an IC.  

Or, do they perform their service in a location that is separate from your business or job sites?  Answering yes to this one is a common reason for using IC's.  The IC covers an area outside of your normal coverage area.  For example, my office is in Bellingham and I cover Whatcom, Skagit, and Island counties.  But I don't cover Spokane County.  So when we have a paper for the Spokane area we send it to a process server in Spokane.  On the other hand, if the IC I want to use covers Skagit County then he won't qualify as an IC under this part of the test.

In general, this should be one of the easier tests under which you can qualify a worker as an IC instead of an employee.  And you only need to get a correct answer from one of the three questions which make up the test in order to qualify.  Just remember it is only one test out of six and you must qualify under all six.

Sounds simple but the devil is in the details.  For instance, suppose you claim you cover the entire state.  In that case you won't qualify under the third question (separate location).  And if you serve papers and they do too then you won't qualify under the first question (different services).  Which means you had better hope they maintain and pay for a place of business separate from yours.  This last could get a little tricky.  Suppose they work out of their home (or their car), the question may get asked as to whether or not this is indeed a separate place of business!  You may think it is a separate place but an Administrative Law Judge may think otherwise.  And guess whose opinion counts!

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Robin Mullins January 31st, 2010 09:02:07 PM

I've written previously about the terrible situation in New York where process servers working for American Legal Process falsified thousands upon thousands proofs of service.  This practice has become known as "sewer service" because of the practice of dumping the actual service documents in the sewer instead of serving them.

Jeff Karotkin has done a fantastic job of following up on the situation and has recently posted new information on his blog at http://serviceofprocesslookingforward.blogspot.com/.  I urge everyone to read his material carefully and take it to heart.  

There are people in our industry who care about one thing and one thing only - the all mighty dollar.  And they'll do anything to get it.  They'll forge signatures, they'll rewrite and change proofs, they'll  .....  My gawd, it makes me shudder to even think about what is going on in our industry.

And don't think that just because we're way out here in Washington we're somehow immune.  I assure you, we're not.  Absolutely we're not.  It is happening here.  Be careful with whom you're dealing.  If a client asks you to do things that make you uncomfortable then trust your gut - stop dealing with them.

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Robin Mullins January 31st, 2010 05:12:13 PM

There continues to be a great deal of discussion regarding the differences between an independent contractor (IC) and an employee.  This discussion is healthy and I hope most process servers are paying attention to it.  I've discussed parts of this topic before but this time I'm going to examine the six part test used by L&I to determine whether a person is an employee or an IC.  Just keep in mind that I'm a lay person and not an attorney who is expert in this area of law.  Click here if you want to see L&I's pamphlet on this topic for yourself.  You'll find all six questions on page five but let's start here with supervision.

1.  Supervision: Do they perform the work free of your direction and control?

On page four of the pamphlet L&I provides some additional information on this topic.  

You ARE NOT supervising if you are only scheduling and inspecting the work.  

You ARE supervising if you are telling your worker or a subcontractor’s workers how to do the job, assigning tasks, training, keeping time sheets, paying a wage or setting regular hours.

In order for a process server to be an IC it appears the contractee (the boss) must have very little control over the work the IC is to perform.  The contractee can tell the IC when and where the work is to be done and can inspect the work for quality.  

However, in order to avoid turning an IC into an employee the contractee must not instruct the IC on how to perform the work, cannot assign specific tasks, cannot provide any training, can't do the IC's bookkeeping, must pay according to a contract, and cannot set the IC's hours of operation.

So how does supervision impact the use of process servers?  Now I'm more familiar with using employees so if you think any of my ideas regarding the use of IC's are wrong please post a comment with your thoughts on the matter.

Scheduling - It seems to me the contractee can tell the IC about the work the IC is expected to perform and to set certain parameters, such as a specific time frame, so long as those parameters were set by the contractee's client..  For instance, it seems reasonable the contractee could say the first attempt is to take place within four days so long as this was an expectation of the contractee's client.  Scheduling involves more than time, it also includes locations.  Therefore the contractee could specify service attempts are to be made at specific locations where it is expected the target will be found so long as the locations came from the client.

Inspecting - The contractee can inspect the end product or the IC's progress at any point after the job is assigned.  It can approve of the IC's work or find it unacceptable in meeting the terms of the agreement (written or unwritten) between the contractee and IC.  

Those are the things the contractee can do and maintain the IC as a contractor instead of an employee.  But what about the things the contractor can't do?

Tell the IC how to do the job - I take this to mean the IC must be familiar with the rules of service and the nuts and bolts of how to accomplish service.  The former would include knowledge of RCW's, court rules, and case law.  The latter would include techniques for getting people to answer the door, which brand of computer to buy, which software to use, which type of car to buy, or information on maps, GPS's, etc.  These are tools of the trade and the IC would be expected to know about them or, at least, how to find out about them.

Assigning tasks - This deals with the means and methods of doing the work.  An IC needs to supply the means and control.  When the contractee steps in then the IC becomes an employee.

Training - IC's need to know how to do the job or they need to learn how to do it on their own.  It seems reasonable to me that the contractee should not be teaching the IC.  

Keeping time sheets - It is the IC's responsibility to monitor his own time.  If the contractee becomes involved in this it seems apparent to me the IC is no longer an IC but has become an employee.

Paying a wage - This implies regular remuneration based on a salary, an amount per hour, or an amount for each piece of work completed.  Taxes are withheld and paid by the contractee.  Seems obvious to me this will quickly convert an IC into an employee.

Setting regular hours - Once again it is fairly obvious that an IC would set his own hours and any move to set them on the part of the contractee would move the IC towards being an employee.  That said, if the IC didn't work the hours necessary to accomplish the job then the contractee would have every right to stop using that IC and find one that is ready, willing, and able to work the needed hours.

I'll take up the Separate Business question in my next post.

Comments (3)
Robin Mullins January 30th, 2010 11:11:47 AM

Needless to say, I could write volumes on this topic and not even scratch the surface.  In any event, here is a quick overview.

B&O Tax Increase
There is some talk of a B&O tax increase this year.  The last time the legislature increased business taxes to balance the budget was in 1993.  In November 1994 many incumbents were fired as a result.  With luck they'll remember that and only close some loopholes this year instead of saddling businesses with a major increase.  After all, we are the people who create the jobs in this state and pay the wages of every last state and local employee.

Sales Tax
Some legislators are considering either increasing the state portion of the sales tax from 6.5% to 7.5% and others are considering expanding the services on which the tax is applied.  Personally, I wouldn't mind it if they applied sales tax to process servers BUT only if they reduced our B&O tax to the same rate applied to retail sales.  That may sound crazy but it would actually improve our bottom line.  Of course it is crazy because they'll never do it.

Unemployment Tax
If you have employees you may have noticed an increase in your UI tax this year - even if you have a spotless record.  The UI tax is made up of two parts.  First is your experience record and the second is the social-cost tax.  Due to the economic downturn the social-cost part has increased dramatically, doubling and tripling in some cases.  However, Senator Holmquist and Representative Condotta are proposing a formula that will smooth out the increases over several years.  The same amount of money will be collected but over a longer period of time.  Not a bad idea at first blush.

Job Creation Tax Credit
This idea comes from Governor Gregoire - which means I don't trust it.  The idea is to give businesses a one time $2,000 B&O tax credit for each full time position they create and which stays in place for at least a year.  Once again, not a bad idea but there must be a catch to it somewhere.

Independent Business Association
This is a blatant plug for the IBA.  For a few bucks every year you receive one of the most informative newsletters around.  If you're not a member you should be.  I've been a member for years and am thankful they are there to take my money.  They represent small business in Olympia and, last time I checked, that includes all of us.  Check them out by clicking here - www.ibaw.net.

Comments (1)
Robin Mullins January 25th, 2010 11:28:43 PM

I've written previously about the use of independent contractors (IC's) as process servers and legal messengers.  Use the search tool to locate all the posts.  I won't repeat here what I wrote previously.

It has been learned through several sources that the Department of Labor & Industries (L&I) and Employment Security (ES) are indeed targeting process servers and legal messengers with plans to audit everyone in the state this year.  Their stated intent is to eliminate the use of IC's in our industry.  They are claiming none of us can pass the six part test they apply to determine whether or not a person is an employee or an IC.  Click here to open an L&I flier on this subject.  See page five for the six part test.

Some people in our industry think they can bury their heads in the sand and this threat will go away.  They think if they keep a low profile then they won't be noticed.  Following the "head in the sand" course is both foolish and risky.

It is foolish because it ignores the importance of working together as an industry to fight back against what appears to be an arbitrary decision on the part of the State of Washington.  Using IC's has been a part of process serving for many decades.  It has benefits for companies big and small.  The State is bound by its own laws and rules.  If bureaucrats are arbitrary in their application of those laws and rules then it is possible to hold them accountable.  But this is possible only if people work together.  Very few of us have the wherewithal to fight the State and win.  But by standing together it can be done.

It is risky because it assumes you won't be found out.  It is only a matter of time before all of us are found.  And when they find you the costs will be substantial.  The State can go back three years plus claim interest and penalties.  It is not a matter of "if" but of "when".  And don't think your competitors will remain quiet if they get audited and you don't.  It is a sure bet they won't give you that kind of competitive advantage.

We have two powerful weapons with which to defend ourselves - KNOWLEDGE and COOPERATION.  We must educate ourselves about the law and we must work together as an industry.  

Take a single piece of paper and tear it in two.  Easily done.  The paper yields to your strength.  Now take a ream of paper and tear it in two.  Try as you might, you will not be able to tear the ream of paper.  

Comments (2)
Robin Mullins January 24th, 2010 01:52:00 PM

In my last post I proposed the following thought experiment:  "Suppose the changes take place and service via e-mail is considered just as valid as in person service.  What happens then?"  There are several possibilities.  The outcome would depend, in large part, on exactly how the new rules are put into effect.  I'll try to dream up 2 or 3 scenarios, perhaps one of you will be able to suggest some others.  For the moment, at least, we're only talking about initiating documents, such as the summons and complaint or those of a similar nature whose purpose is to initiate an action.

The Wild West Scenario.  Suppose the rules were changed to allow service to be effective by simply sending an e-mail containing the summons and complaint to the defendant's "e-mail address of record."  The e-mail can be sent by the attorney or the plaintiff if he is acting pro se.  An address of record would be any e-mail address shown to be used by the defendant.  This address might be supplied by the defendant when he signs a contract or otherwise publishes it or lists the address in the public domain or in any way uses the address for correspondence.  Such an address might be found on a person's (either real or in law such as a corporation) website or social networking page.  It might be found during the course of e-mail exchanges between the parties or discovered through some sort of private investigation or through an examination of some type of public record.  

In any event, the bottom line in this alternate universe is there would be very few process servers because their services simply would not be needed - for the most part.  I suspect those few remaining diehards could demand a premium payment for their services in serving those few individuals who are such Luddites that they don't have e-mail addresses at all.

This is science fiction and I don't see it happening within my lifetime (I'm almost 57, be kind and give me another 20 or 30 years).

The Not So Quite Wild West Scenario.  In this alternate universe the rules are changed such that the e-mail must be sent by a disinterested 3rd party (process server) using very specific software which would keep a complete and accurate record of everything relating to the service e-mail.  For instance, it would record each of the Internet servers through which the e-mail passes on its way to the defendant.  It would record the time of arrival on the defendant's computer along with the time the e-mail was opened and how long it was open.  The e-mail would be structured in such a way that no spam filter could block it and it could not be deleted until it was opened.  The process server's software would be subject to some specific requirements, such as being unhackable, etc.

I think there is a reasonable likelihood this scenario, or some variation of it, could become a reality at some point in the not too distant future.  A number of technological advances will need to occur as well as some social and legal changes.  If it does come to pass then, once again, I see the number of process servers across the nation being reduced dramatically.

Also, I wonder who will be the disinterested 3rd party.  Will it be a process server?  Some kind of private business?  Or will it be the court itself or some combination of the court and someone else?  Will there be any need to involve anyone outside that formal legal system itself?

The Most Likely Scenario.  E-Service has a place in our future, I don't doubt that at all.  Some participants are betting it will be a big part and are pursuing business models based on that possibility.  But I'm not so sure, at least not for the near to mid future.  I think this because the legal system is cautious and traditional.  There are still a lot of technological issues to resolve.  But there are also a number of legal and social issues which must be addressed.  We will see (as we already have) the courts allow the use of e-service as an alternative method of service but not as a primary method.  For instance, here in Washington service via snail mail has been allowed for many years but only under certain restricted circumstances.  Anyone wanting to use snail mail service is required to obtain a court order allowing its use and must convince the court substantial efforts have been made, without success, to serve the defendant using personal service or one of its variations.  

So I am not afraid of e-service.  I am not concerned it is going to put me out of business tomorrow or even 10 years from now.  I intend on watching its evolution and will make every effort to be prepared to fill my client's needs as they morph due to legal, social, and technological changes.  I will also attempt to influence those changes as they occur.

Conclusion.  Jeff Karotkin has been writing about change for some time.  I'm sure he and I disagree on certain specifics regarding e-service but our areas of agreement are far greater.  He is correct in arguing we must be prepared to change as the world of process serving changes around us.  To do otherwise is to have our head stuck in the sand.

Finally, in my opinion, we must not give e-service a boost by showing ourselves as dishonest or incompetent.  Forgery and sewer service must stop and those who perpetuate it must be brought to justice.

Comments (0)
Robin Mullins January 4th, 2010 11:44:22 PM

In my last post I compared e-service to snail mail service.  I also gave a definition of service of process - "The delivery of a writ, summons, or other legal papers to the person or entity required to respond to them."  In many states, over many years, process servers have fought legislation intended to allow the use of snail mail in any of its various forms.  We have been successful because we've consistently been able to establish that snail mail is not as reliable as service performed by a process server.  A survey conducted by WSPSA found a bad address rate for certified snail mail in the neighborhood of 35%.  And yet the courts consistently allowed judgments against people even when there was no signature on the green receipt card.

The question to ask now is, "How reliable is e-service compared to normal service?"  At this point I don't know of a way in which this can be reliably tested.  With the snail mail comparison we could actually go into the courts, pull files, and accumulate data.  But since there are no courts allowing e-service at this time there are no files to pull.  If anyone knows of such a court I would be very interested in hearing from you because a study of their files would be most interesting to perform.

To the best of my knowledge, e-service is currently being allowed only in those circumstances which would otherwise allow for use of an alternative form of service, such as publication or mailing.  The requirements, mainly in terms of diligence, for alternative service tend to be rather strict in Washington.  Or, to put it another way, if you want an alternative means service overturned then shortcut the diligence aspect of it.  Therefore I have no great concern with e-service - so long as it remains an alternative form of service.

But suppose that changes.  Jeff Karotkin has pointed out in his blog that some website's Terms of Use are including language which allows the owner of the website to serve its users via e-mail.  And how many of us actually read the ToU's?  I sure don't.  Which means many of us have probably agreed to such language when we've registered as users of some websites.  Now whether or not the actual use of that language will hold up in court is a good question.  It might or it might not but it wouldn't take much of a change in a statute or court rule to allow it allow it to be upheld in the courts.

Again, suppose the changes take place and service via e-mail is considered just as valid as in person service.  What happens then?  In my next post I'll look into my crystal ball and attempt to answer that question.

Comments (3)
Robin Mullins December 25th, 2009 06:45:53 PM

How many of you have been following the advance of technology in the legal field and, specifically, process serving?  Certainly nearly all of us use computers to generate our proofs, exchange e-mails, and maybe even do our accounting.  Fewer of us have interactive websites, scan documents for transmission to affiliates, or generate electronic documents that never see a piece of paper until the receiver prints them (if they are ever printed at all).  And even fewer of us think about the implications for the industry as a whole.  So I ask you to take a moment and think about this question, "Where is the ever expanding world of technology taking us?"

I've ruminated on this topic for quite some time and had long talks (and e-mail exchanges) with other process servers around the country.  And like any other attempt to predict the future such musings are subject to many variables and any conclusions are far more likely to be wrong than right.  So let's take a look at one factor that might affect the entire industry and that is e-service.

There has been a lot written lately about e-service but I think very few of us are really taking it seriously.  In fact, I would go so far as to say many of us have our heads stuck in the sand or, even worse, simply don't care whether e-service happens or not.  In part this may be because we don't understand how, in theory, e-service is supposed to work.  

In my mind there is a great deal of resemblance between e-service and snail mail service.  But, as technology has done in so many other situations, e-service has the potential of being faster, less expensive, and more reliable than snail mail.  And e-service certainly has the potential of being faster and less expensive than regular "person to person" service.  Is e-service more reliable than regular service?  It might well be if we continue to have sewer service episodes such as just came to light in New York and a couple of other areas of the country.  Indeed, we are not immune to this sort of problem as I am familiar (most unfortunately) with the forgery of proofs of service right here in Washington.  

To get a handle on e-service we need to take a step back and ask, "What is service of process?"  And here is a nice succinct answer, "The delivery of a writ, summons, or other legal papers to the person or entity required to respond to them."  Of course the various states have promulgated distinct rules relating to service but they all come down to some form of delivery.  Those added rules, despite their variations, are there to improve the reliability aspect of service.  

In Part 2 of this series I will discuss and compare snail mail service, regular service, and e-service in greater detail.

Comments (1)
Robin Mullins December 22nd, 2009 03:41:16 PM

There have been some rumors floating around regarding the use of IC's in the process serving industry and the Department of Labor & Industries.  The more serious of those rumors have hinted L&I is going to eliminate the use of IC's in the process serving industry and that only employer/employee relationships will be allowed.  Frankly, this didn't seem plausible to me so I decided to go to the source and called Bill Moomau.  Bill is the Supervisor of the Classification Department at L&I.  I've found him to be a gentleman and he genuinely listens to what I and other WSPSA members have had to say.  And, most importantly, he lays it on the line - says what he means and means what he says.  Many WSPSA members may recall Bill as our speaker in Vancouver at our 2009 Annual Conference.

I spoke with Bill on the phone the other day.  The conversation lasted about 15 to 20 minutes.  I asked him point blank if it is L&I's intent to eliminate the use of IC's as process servers.  He said "No."  However, he went on to say that L&I will expect anyone using IC's to satisfy the six tests they use to determine whether a person is an employee or an IC.  I've written about these six tests before and you can read them by clicking here.  If all six of the tests are satisfied then, and only then, can the person doing the work be considered an IC.  If even a single test is failed then the person is an employee.

An interesting aspect of the entire L&I program is that it exists as much to protect the employer as it does the employee.  In fact, it was seen as a great boon to business when it was instituted.  You see, employers had a problem before L&I was created.  The problem was that when an employee was injured on the job the employee would sue the employer.  If the employee won then the employer was directly responsible for the damages suffered by the employee.  Today, the dollar amounts under that old system would be enormous.  Now I'm not saying L&I is a perfect system (it certainly could use some changes) but the alternative is almost unthinkable.

There are some big advantages (and disadvantages) to using IC's.  The "system" allows for their use and will continue to allow their use but you have to follow the rules.  Use the search tool in this blog to locate all the articles I've written on the IC topic.  Search for "independent contractors".  Each article has links to additional information.  Educate yourself on this topic and implement whatever changes are necessary to conduct your business in an ethical and legal manner.  

Comments (0)
Robin Mullins December 17th, 2009 11:30:31 PM

I received my audit results in the mail today and, as expected, I failed.  The failure rate was 19% and the Department of Licensing classifies that as failure.  Now wait a minute.  If I missed 19% that means I got 81% correct.  That's a B- not an F!  They must not grade on a curve.

My office had conducted 43 look-ups during the audit period and only 35 were listed in our logs.  Of those, 5 were shown as "no record found" and they reminded me these also need to be logged.  There were 3 plates which weren't logged at all and they were probably my error as opposed to being a mistake on the part of the other 2 people in my office who have IVIPS access.  Everyone once in a while I find myself forgetting to log a look-up.  (I suffer from AMA syndrome - Advanced Middle Age.)  And, of course, they mentioned we weren't using our sub account numbers properly but hey, I pointed that out to them.

Some of the things they detailed I had already spotted and described in earlier posts on this topic.  Frankly, I wouldn't mind another audit in the near future just to see how effective the changes were.  In speaking with the DoL people I found them to be courteous and attentive.  With luck an on going conversation has begun which will result in a better understanding for everyone involved.

So, overall, it was painless.  We've instituted some new procedures in our office to shore up some of our weak points and now we move on.  

Comments (0)
Robin Mullins December 17th, 2009 11:00:10 PM

The sequence of events over the past 24 hours has been very interesting and productive.  I've learned about some more things my office hasn't been doing quite right on our IVIPS record keeping and had a fascinating conversation with Hannah Fultz of the Department of Licensing.  

It turns out there was an "issue" (she didn't go into details) in the not too distant past where IVIPS information was used inappropriately.  This, in part, triggered the current round of audits and the results are not good.  They're finding a failure rate in excess of 80%.  Needless to say, DoL is taking this very seriously.

I was surprised to learn there are over 8,000 IVIPS users.  This tells me that process servers and PI's are a small fraction of the total.  Hopefully we are an even smaller fraction of the "issues".

In speaking with Ms. Fultz we both concluded a major reason for the current failure rate is a lack of understanding on the part of users as to the requirements in the contract.  I'm generally pretty good about reading and deciphering such things but obviously (since I now know I wasn't doing everything properly) I missed some important aspects of the contract and therefore failed to institute appropriate procedures in my office.  Now that my understanding is better I've instituted multiple procedure changes which address the problems.

Ms. Fultz also mentioned there are some changes being considered for the current contract.  More than anything they need to know the information is being used appropriately.  To do that they need to be able to conduct audits which result in accurate information and in a much lower failure rate.  So, as part of their process, they are going to explore methods of educating users about their responsibilities and record keeping requirements.

I told her that she and I are on exactly the same page.  Speaking for WSPSA (hope that was okay to do Madam President) I assured her the association would cooperate in any way possible to educate our members to improve our audit scores.  I mentioned WALI but explained I couldn't speak for them in the same way that I felt I could for WSPSA.  I urge any WALI member reading this to bring it to the attention of an appropriate person on the WALI Board.  Perhaps WSPSA and WALI can work together on this in some fashion.

IVIPS is an incredible resource.  We need to protect it.  We need to cooperate with DoL and we need to police our own.  My fear is that a loose cannon somewhere will abuse IVIPS and, as a result of their actions, I will lose access.

Comments (0)
Robin Mullins December 9th, 2009 02:28:39 PM

I want to thank everyone who posted comments on this topic.  Especially Robb Woodworth and Jim Cronin.  They've effectively told me what I can expect DoL to say because I wasn't aware we were supposed to be logging every name search.  Our practice has been to log every vehicle record we accessed but if we did a name search, and didn't find any vehicles, we didn't log the name.  Our logging system is tied into our process service database  and I've gone in and made adjustments which will allow us to log every name (including those where no records are found) in addition to every plate.

The requirements for process servers is somewhat simpler than that for investigators.  Jim's detailed explanation of how he documents his searches should help my WALI readers. Robb's kindness in explaining his audit experience should help my WSPSA readers.

I'll follow up on this after I've heard back from DoL.

Comments (2)
Robin Mullins December 8th, 2009 06:20:25 PM

Be careful what you think about, it just might come true.

Just last week I was musing about the fact that I had never been audited by the State of Washington Department of Licensing regarding my IVIPS account.  For those who may not know, it is legal for DoL to disclose motor vehicle information to process servers (and others) but you have to sign a contract which includes an audit provision.  This is a fantastic resource when trying to trace someone in order to serve papers on him or her.

Well today I received a certified mailing from the DoL Public Disclosure/Contract Unit.  It notified me I was being audited for the time period from November 16th to November 19th.  It took me about an hour or so to pull the information together, prepare a response letter, and put it all in a certified mailing going back to them.

We use a tracking system which doesn't look exactly like the forms supplied with the IVIPS contract but the results are the same.  The contract allows for this so we should be OK on that part of it.  There are three of us in the office with IVIPS access and sometimes things can get pretty hectic around here.  So my only fear is that, somewhere along the way, one of us (most likely me) forgot to make an entry in the tracking system.  That, of course, will raise red flags at DoL.  They'll ask questions but I'm confident we'll be able to answer them to their satisfaction.

Over the years I've become quite anal about record keeping.  We're keeping more than ever before (thanks to computerization) and I'm always harping on staff to get everything in writing.  Today it paid off because it made the audit simple and straight forward.

I'll post on this topic again after I've received the results from DoL.  I think I'll still have my IVIPS access but you never can tell for sure until it is over.

Comments (7)
Robin Mullins December 8th, 2009 02:24:47 PM

My good friend Eric Vennes works at Insurance-Tek.  He was kind enough to write this brief comparison of "claims made" style insurance and "occurrence" style insurance.  His e-mail also said this:

"I would ask that if you do make edits however, that I see them prior to posting on the site to confirm accuracy. Claims-Made vs Occurrence forms is, in my opinion, one of the most confusing issues to verbalize. In my seminars, I actually use illustrations."

Not to worry Eric, I didn't make any changes to the text, just some formatting changes so your material will appear on the web better.

I'll just mention that I've had both claims made and occurrence insurance policies.  Currently I'm carrying an occurrence policy.  Its been years since I last carried a claims made policy and I hope to never carry one again.

Oh, and one other thing, the idea for this post came from Jim Cronin.  He's a WALI member who is based in the Mukilteo area.  Jim has some very nasty habits.  You see (and don't tell anyone I mentioned this) he tends to ask very good questions and he likes to share useful information with the people around him.  ;-)

---

Claims-Made Form v/s Occurrence Form

• Claims Made CG0002
  • Claim reporting is time restricted to the active policy, deductible and terms
  • Claim or knowledge of claim must be reported within the retro-date and the expiration date of the policy.
  • When your policy expires, you must purchase a “tail” to extend the time a claim can be reported.
    • Cost can be 150% to 300% of the expiring premium depending on term purchased. Note most policies will have a limited extended reporting period of 60 days after expiration. Some programs will extend reporting period from 12-24 months after expiration if you retire and have set number of years with same carrier.
  • The policy that expired can be tossed when the renewal takes it place.
  • If policy is not renewed, it can be tossed once the “reporting period” expires.
  • The premium paid means nothing once the reporting period expires.
  • Subject to new terms, deductible, restrictions and exclusions.
  • Easy to get into and expensive to get out of!
• Occurrence Form  CG0001
  • Claim reporting is subject to “reasonable time”
    • Note: some states restrict the time to file a suit like New York. If suit is filed after 12 months of the date of event, the State will not uphold the suit; therefore, your insurance company may defend, but normally to release you from the suit for above conditions.
  • Each occurrence term purchased is kept, as the date of event will apply to the appropriate policy period for the date of loss or event.
  • Policy expires … you do not need to purchase a tail. You can purchase discontinued operations coverage to protect if a date of event occurs after you close your doors. This is rare and it is more likely seen in the construction field.
  • A policy that expires is kept within your insurance records according to your state filing statues.
  • The premium paid means you have the prior terms to present claims against.
  • Each policy’s coverage is subject to its terms, deductible, restrictions and exclusions.
  • Most occurrence polices will not offer “nose” coverage to gap the “prior acts” or to keep your retro-date intact.
    • Some programs will offer “prior acts” coverage or “conversion endorsements” at a price, but typically less than the cost for the “tail” coverage of a “Claims-Made” policy form. Ask your Broker when moving out of Claims-Made and into an Occurrence form.

Comments (0)
Robin Mullins November 21st, 2009 11:09:10 PM

Why use a contract?  I've been in the business for over 30 years.  I don't need no stinking contract!

Or do I?  And if I did what would it look like?  Would it put people off?  Would I lose accounts?  I have so many clients would one contract fit them all?  

This is an odd thing about the process serving business.  Like Insurance-Tek says, other professionals always use contracts.  And yet process serving is devoid of them.  Perhaps the reason lies in history somewhere.  If anyone knows, or at least has an idea, please make a comment here.  

I'm giving considerable thought to this question.  Trying to figure out how to implement it.  If I come up with a solution I'll write about it here.

This is an area which hesitation is found. Some feel using a contract will be an intrusion, inconvenience or cause them not obtain the account. A contract is simple; “an agreement or understanding between two or more entities to perform services.” It is also required in most insurance policies and not being in place could decreased limits of coverage or have a high premium penalty in place.

A contract may not hold up in court or stop a law suit, but the steps were taken to be pro-active. In working with other professionals (Attorney’s, Insurance Company’s etc), you will find a contract is always involved. Your business should have the same standards.

It is always recommended an attorney should review a contract given to you before signing.
1.        Scope of work to be performed.
2.        Payment for the work to be performed.
3.        Don’t guarantee what you cannot uphold. Unable to obtain surveillance footage for what the client is paying for, unable to perform work on a time or at a scheduled time. Nothing is black and white as options vary between people.
4.        Hold harmless in your favor for the issues outside your control. If you did your work properly, why are you left holding the bag for someone else’s problems?
5.        Avoid the he said she said. Document, document and document.
6.        State additional personnel may be hired to ensure the work can be performed.

Other items to keep in mind
1.        Have a disclosure on your reports. It might be a hold harmless for the evidence found or not found.
2.        Ensure the person signing the report has legal and company authorization to sign the report.
3.        Ensure items which may be held are secured as most policy will exclude Care, Custody and Control.

Comments (0)
Robin Mullins November 16th, 2009 06:33:53 PM

The wide spread use of sub-contractors, also known as independent contractors or IC's, in the process serving industry has been a rather hot topic for some time.  And, based on some things that have been happening here in Washington, it is likely to become even hotter over the next several months.

At one time or another just about all of us will use an IC.  Larger companies use them extensively but even the smallest of companies will use them when there is a bit too much work to do or when a service needs to be done in an area not in the company's normal coverage area.  So, in effect, there are two types of IC's, local and remote.  For more information on IC's you should have a look at my posts covering this topic.  Use the search tool at the top of the page and search for "IC" to find them.

Some, but by no means all, companies require their local IC's to sign a contract.  This is good business practice and can protect both the company and the IC.  But no one that I know of asks their remote IC's to sign a contract.  For instance, my company is based in Bellingham.  When we need something served in Spokane we forward it to a company in that area (that company is a remote IC to me).  In turn, that company is likely to assign the job to a local IC.  They might even have a contract with the IC.  Yet, until recently, I would never have considered asking the company in Spokane to sign an agreement with me.  Indeed, just sending the assignment to the remote IC, with little or no knowledge of who they are, is standard practice in our industry.

The entire process gets a bit complex.  My client gives me the service assignment (no contract), I send it to the company in Spokane (no contract), and they assign it to a local IC (maybe a contract but I don't know and my client doesn't know).  From a liability point of view, the entire chain of players is potentially liable if something goes wrong.  With nothing in writing as to who is responsible for what.  

So I found this entry on Insurance-Tek's website rather interesting.  And remember, this applies to both local IC's and remote IC's.

Hiring a sub-contractor is common as it keeps the bottom line expense down. A temporary increase in business or a short term job may require additional personnel.  Keeping in mind, the sub-contractor is still an extension of the business and will reflect on the company’s performance.  A client is not aware a sub-contractor was hired just that the work is being done.  Hence the law suit in your company name for damages the sub-contractor may have caused.

1) Know the background and work ethics of the sub-contractor.

2) Have a contract with a hold harmless in place with between your company and the sub-contractor.

3) Obtain verification of insurance from the sub-contractor naming your business as an additional insured.

4) Know what exclusions are in the sub-contractors policy before they perform work.  If a type of operation is excluded, there may be no coverage on your company’s behalf.

5) Review and inspect the work completed by the sub-contractor.

6) Use the same sub-contractor(s) and build the relationship with them. Using different sub-contractors can open up an issue with quality of work performed.

7) Prior claims which could decrease the limit of coverage shown on the certificate of coverage.

8) Liens or open law suits which could affect the performance of the sub-contractors work and/or decrease the policy coverage limit.

9) Is the sub-contractor using their auto for business?  You need to ensure verification of their auto limits are shown on the certificate of insurance.  These limits should be no less than $300,000 to ensure your company is protected.  Most professionals will advise these limits should equal the occurrence limit for the liability.

Comments (0)
Robin Mullins November 15th, 2009 01:06:02 PM

Today I was preparing a "re-application" to a search company I've used for years and found it necessary to trouble my E&O insurance agent, Eric Vennes at Insurance-Tek.  So I went to their website to get to see if there was some way to get the proof of insurance I needed without bothering Eric.  There wasn't, and I had to ask for his assistance anyway, but, for the first time, I really took a look at their website.  It turns out they've got some very useful information, in laymen terms, about insurance.  It is the kind of material I've heard Eric and other insurance people describe any number of times.  

I asked Eric if I could use some of the material here to help the rest of us understand such an exceedingly dry topic.  So, with his permission, I'm going to copy and paste here some of what you can find at www.insurance-tek.com.  It will take several posts to present it all but then medicine is often best in small doses.

A bond protects the public, suppliers and taxes liens. If you breach a contract, fail to perform services which you have been paid for, and/or fail to pay an account which services were obtained, the bond could be liened. When the bond company pays out damages, this value must be paid back to the bonding company. Hiring an attorney to defend the suit could cost you over $4,000.00 in costs to you and you still need to repay the bonding company.

An insurance policy has a limit of coverage which will be available for defense and damages. You pay a little and the insurance company pays up to the limit of coverage. This limit is typically $1,000,000 for an occurrence. The damages paid out by the company will not be required to be paid back. You may have a deductible required per the policy conditions and that’s it.

This has got to be one of the most misunderstood concepts.  Even people who should know the difference (based on their position as a judge or attorney) often get these two confused.  I heard this typical confusion when I attended the FTC roundtable hearing in San Francisco.  "Process servers should be bonded" was said more than once.  And yet bonding is usually intended to assure that a job is completed.  What value is that going to be when the service fee is all of $50?  None.  On the other hand, fail to serve a paper by the time a statute of limitations rolls around and a $10,000 bond is next to worthless when the judgment is $100,000 or more.  And that, of course, is where insurance comes in to play.

I'm going to write 2 or 3 more posts about insurance and related topics.  And at least one of those topics could almost turn our industry upside down if it were followed - or required.  So check back here over the next week or so.

By the way, I'm NOT getting a kick back from Eric for plugging Insurance-Tek here.  Though he could buy me a beer sometime.  Just a thought ;-)

Comments (0)
Robin Mullins November 12th, 2009 11:05:14 PM

It didn't take long to find additional incidents of sewer service.  Here's one from Massachusetts I found as a press release by their state Attorney General.

Attorney General Martha Coakley Obtains Judgment Against Process Server for Violating Massachusetts Consumer Protection Law
Company and its Sole Officer Permanently Prohibited From Acting as Process Servers; Ordered to Pay Civil Penalties and Legal Fees

BOSTON - Attorney General Martha Coakley’s Office has obtained a judgment in Suffolk Superior Court against Boston-based process server Stokes & Levin, Inc. and its sole officer and director, Darren Stokes, both of whom engaged in a pattern of falsifying service of legal papers and filing those documents with state and federal courts.  Judge Bruce Henry of the Suffolk Superior Court has issued a court order permanently prohibiting both Stokes & Levin and Mr. Stokes from acting as process servers or otherwise serving legal papers.  Additionally, the court ordered the payment of $10,000 in civil penalties for violations of the Massachusetts Consumer Protection Law and $9,542.40 for the costs of investigation and attorneys’ fees.

“Our office has sought to put an end to Stokes & Levin’s practice of falsifying court filings to reflect service of legal documents that never occurred,” said Attorney General Coakley.  “Massachusetts businesses and individuals must be able to rely on the integrity of the judicial system.  Legal process servers play an integral role in that system, and the fraudulent actions of Stokes & Levin not only undermines it, but also poses a risk of harm to individuals and entities that is unacceptable.”

The court found that Stokes & Levin and Mr. Stokes engaged in unfair and deceptive conduct in connection with their legal process service activities, all in violation of the Massachusetts Consumer Protection Law.  The court further found that Stokes & Levin and Mr. Stokes knowingly falsified service of legal process and made affirmative misrepresentations to the courts. In addition to being prohibited as acting as process servers, Stokes & Levin and Mr. Stokes are barred from advertising legal process services, accepting money for serving legal papers, and forming another legal process business.

The Attorney General’s Office filed a lawsuit in October 2008 alleging that Stokes & Levin, Inc. represented to courts that it had served legal documents on the intended recipients, when in fact; Stokes & Levin had not served the documents at all.  These actions left individuals exposed to potential liability in cases of which they may not even have been aware.

This matter was handled by Assistant Attorneys General Scott Schafer, Division Chief, and Elizabeth Koenig, both of Attorney General Coakley’s Consumer Protection Division, with assistance from Kristen Metzger of the Investigations Division.

Comments (0)
Robin Mullins October 31st, 2009 12:47:25 AM

The following video was recently posted by Jeff Karotkin on his blog and I want to give him credit for finding it and bringing it to the attention of process servers every where.

For those of you who think this issue is going to go away I can only say I disagree with you.  Thanks to the medium you are using right now (the Internet), this story will come to the attention of many more people than it did the last time the issue of sewer service surfaced some 30 years ago.  This includes consumer advocates, attorneys who make a living representing consumers against collectors, and judges.

I will not be surprised to see bills introduced in legislatures across the country calling for stronger regulation of process servers.  As I've said before, this train is coming.  We can either attempt to direct it onto a track which is beneficial to our interests or we'll get run over.

Here in Washington we need to make a decision.  Do we wait for the train or do we once again look seriously at regulation?  

Comments (5)
Robin Mullins October 14th, 2009 10:01:20 AM

Here are some important points to ponder.

1. Regulation of process servers in Washington is minimal at best.
2. A few years ago WSPSA approached the Washington Supreme Court with a regulation proposal based on the Arizona model (click here to visit their website) but was rebuffed.
3. The current "wild west" state of affairs (in most states - including Washington) is attracting the attention of powerful consumer advocate groups and the Federal Trade Commission.
4. The FTC may well take action which will negatively impact process servers around the country.
5. WSPSA is powerless to control who can serve process in Washington.
6. WSPSA is unable or unwilling to require any level of education for new members or any level of continuing education for existing members.
7. The marketplace seems incapable of weeding out unethical servers before they harm the public

I could add a few more points but I think you get the idea.  Our industry is in trouble.  It is in trouble because of the actions of past and present process servers.  As stated at the FTC roundtable in Chicago, "Process servers are engaged in a race to the bottom."  That comment haunts me.   Because I know it is true I can't get it out of my mind.  I want to scream at the top of my lungs "WE AREN'T ALL LIKE THAT!"

So I've decided to start creating a set of Standards and Best Practices (SBP's) for my company.  If you click here you can see what I've done already.  And I've only just begun.  I'm examining every aspect of my company's operations, recalling my 30+ years in the business (especially my mistakes), reading SBP's written by NAPPS and the chartered state associations, and using every other resource I can think of with the intent of defining a highly detailed set of SBP's under which I will operate my company.  

Others in the industry may question me about this.  They'll want to know when I became the anointed one who thinks he can lay down SBP's for the industry.  The answer is obvious - No one anointed me and I can't do it for the industry.  But I can do it for my company.  And I can publish my SBP's on my website for all to see.  And, most important, I can work on a daily basis to help my company strive to meet them.  It would be meaningless to do otherwise.

I encourage anyone who has any knowledge of process serving to read my SBP's and comment on them.  They will be changing over the next several months as they are expanded and refined.  Feel free to copy them and use them as your own.  But if you do please don't be a hypocrite.  Don't say one thing in public and do another in private.

If you have suggestions for improvements or additions to my SBP's please make a comment here or drop me an e-mail.

Comments (2)
Robin Mullins October 12th, 2009 10:11:43 AM

At the behest of the WSPSA Board of Directors, I attended the FTC roundtable in San Francisco on September 30th.  In my opinion this was a smart move on our Board's part and money well spent.  Not only was I able to attend the roundtable as an observer but was also able to meet with a number of California process servers who were in attendance.  The conversations at lunch and dinner were intense as we were all concerned about what the FTC might do in the future.

You can read a transcript of the roundtable by clicking here.  Skip the first few pages and pick it up with Dean Graybill in the middle of page 6.

One of the things I noticed about both roundtables (Chicago and San Francisco) was the liberal use of unsubstantiated statistics.  As you read the transcripts you'll see 80% of this and 95% of that sprinkled throughout.  Indeed, towards the end of the discussion the panelists themselves make note that they are using "95%" as a favorite number.  So keep in mind that many of the percentages mentioned are not based (not even loosely) in fact.

There were three obvious camps in the makeup of the panel.  There were the consumer advocates, the business advocates, and the judiciary.  All sides had very clear agendas and were not the least bit shy about advancing them.  I have enough experience to know that none of them were entirely accurate.

Here are some comments I found particularly interesting.  NOTE:  These have been taken out of context.  Read the transcript for the full story.

Michael Kinkley:
"I vacated dozens of default judgments -- I intend to vacate thousands more because of the affidavits of service are inadequate."

"Affidavits of service -- I have affidavits of service where two different process servers claimed to serve the same paper on the same day."

"We have a huge problem with process service in terms of fees. Mr. Moore isn't evaluating the fees that are being charged by the process servers. There are some companies that take kickbacks from the process servers. That was one of our cases."

"I think, for the FTC ought to be -- and I'm not sure it's in your rule-making power to do so -- but a suggestion that there be a licensing and bonding for all process servers, that process servers, if they file an affidavit of service that turns out to be false, that it be declared an unfair and deceptive act or practice under the FTC act."

Manny Newburger:
"Well, the idea of bonding process servers does make good sense. I think they should be accountable."

"And while in any given group, there may be people who break the rules, which is my the notion of perhaps bonding process servers is not such a bad idea."

Ronald Sargis:
"Now, if you find a collector that's colluding with, that's a different situation than the innocent collector who is getting bad service but believes it's truthful, you know, doesn't have a situation where 10 of their services have now come back bad and they're continuing to use the same guy."

"I do want to note that service by mail appears to work well in the bankruptcy courts.  And in my 26 years' experience as a practitioner, there have not been major problems."

William Gargano:
"Same process server, service of process was made at 9:00 on September 4th down at Fisherman's Wharf. The same person signed that he served someone over in Hunters Point at 9:02. Now, you can't get to those places. Something's going on here."

"We can't control who the process servers are. But the suggestions put forward here with regard to bonding, with registering - - I think those are ideas on the right -- They're going in the right direction."

I could go on with more quotes but the above should give you a good idea of the tenor of the discussion.  There is a train coming down the tracks.  It has been coming for a long time and is almost here.  We can't stop this train so we have two choices.  We can either get run over by it or we can attempt to put it on a track of our choosing.  I prefer the latter choice.

I mentioned above that I had lunch and dinner with other process servers who were also attending the roundtable.  During lunch one of them said he doesn't quite agree with my stand on regulation (he's obviously been reading this blog).  He didn't seem to think it was necessary.  There are a lot of process servers around who disagree with me on that topic.  For that matter, I don't like the idea of regulation myself.  

But what I haven't heard is a reasonable alternative.  Some think the "market" will shake out the bad apples.  New York proves that doesn't work.  By the time the bad servers have been forced out of business (if they ever are) too many people have been hurt by them.  This is a natural situation for government to step into the picture.

And I think it is coming.  Whether we want it or not - it is coming.  I would rather be out in front of the situation rather than running behind trying to catch up.  

Where do you stand?

Comments (0)
Robin Mullins October 6th, 2009 01:54:48 PM

Today I received an e-mail from a fellow WSPSA member.  Here's part of it:

Have you heard anything regarding data match where a software company collects information between banks and state government and matches up money owed to the state with that persons bank account allowing the state to collect funds directly from those accounts?  In Oregon there was a bill (which was defeated this year) introduced which would allow the Oregon Dept of Revenue to data match their records with bank records in order to collect money owed.  Apparently this already passed in New Jersey and is gaining steam for next year in Oregon.
 
The scare to me is where does this end?  Is this not a violation of our 4^th Amendment?  If it starts with the Dept of Revenue it will trickle down throughout the rest of the government and eventually into the private sector.

And my response:

No, I hadn't heard of this specific process.  However, it doesn't surprise me in the least.  I can't speak to this specific topic but can muse a little on "future history."

Assuming the world doesn't get hit by an asteroid or suffer a nuclear holocaust, I foresee a time in the not to distant future when the type of data mining you describe is not only common place but quaint.  Personal liberty either will not exist or will be so different from today as to be unrecognizable.  

Look around and you find the technological erosion of freedom everywhere.  For instance, do you want to make your daily commute a little shorter?  One answer is to buy a special pass with an embedded microchip.  Then you can drive in the special lane reserved just for people with such a pass.  Your every movement is monitored from the time you enter the special lane to the time you leave it.  Now expand this idea.  What if all roads (every last one of them) were made toll roads and every car had to have a microchip in it.  Again your every movement is monitored so you can be tolled for your use of the roads.  But you and I both know the information will be used for many things besides collecting tolls.  The first concept, as I'm sure you know, is already in place.  The second was first talked about a few years ago and it wouldn't take much to implement it.  

Many citizens have purchased the pass for the fast lane.  We've bought into it.  And as for the "every road is a toll road" idea?  It would be sold to us like this.  Using the roads will be on a pay for service basis (which is always attractive to anti-tax people) and we'll do away with the gas tax (even more attractive).  People will buy into it and in a few short years the system will be in place.

Now I'm not a conspiracy theorist.  I don't think the Federal Reserve is plotting to control the economy or Communists are taking over the government.  But I do see a future in which we do these things to ourselves.  When we, as a people, little by little freely offer up our freedoms in exchange for speed, efficiency, and convenience.  

Consider the debate swirling about the use of scanned or other types of electronic signatures.  It would be such a convenience to allow the office to apply the server's signature to the proof.  But, should it be allowed, I see it as the nothing more than the camel's nose in the tent.  Pretty soon the entire camel comes in.  Pretty soon we don't even need a process server.  Service is accomplished electronically.  The human element is removed.

For the loss of a nail a shoe was lost.  For the loss of a shoe a horse was lost.  For the loss of a horse a soldier was lost.  For the loss of a soldier a battle was lost.  For the loss of a battle the war was lost.  For the loss of a war the nation was lost.  All for the loss of a nail.

The nails are the little things we're giving up (such as our location being tracked by microchips) in exchange for some minor convenience (such as getting home a little sooner).

Sorry to wax philosophic but that is the way I see it.

How do you see it?

Comments (0)
Robin Mullins September 26th, 2009 01:02:33 PM

That is a very good question.  I was in a good sized round table discussion the other day when it was raised.  The word is that the court systems in our state have only felt the first wave of budgetary cutbacks and a second wave is close around the corner.  There is rumor, and I emphasize the word "rumor", that in at least one county in Washington the Superior Court judges have informed the county commissioners that they either fund the courts in that county or they'll be thrown in jail for contempt.  Such a threat, if true, is not made lightly.

I bring this up because of the serious impact it might have on process servers and other legal support industries such as private investigators and legal messengers.

Suppose, for the sake of argument, the rumors are true.  Suppose the reductions are so great that only the criminal courts can be staffed.  Would collection cases go unfiled?  What about personal injury cases with close statutes of limitations?  And unlawful detainer actions?  Divorces?  And on and on?  The impact on process servers and related businesses will be hard and deep.  

The reason we have courts is because we attempt to live in a civilized society.  Instead of collecting debts by bashing in the debtor's skull or making him a slave (check your history) we take him to court and use the power of the state to collect what is due.  Imagine landlords who can't have delinquent renters removed by the sheriff because there is no court to issue the order.  And domestic situations, I don't even want to think about it.

I don't normally like to mention rumors but the sources of the information are so reliable I believe them.  If I can find a moment I'll do some fact checking.  You might consider doing the same.

Comments (0)
Robin Mullins September 23rd, 2009 09:47:16 PM

As promised earlier, here is information on how the IRS looks at the employee / IC question.  Click here to see a detailed explanation from their point of view.  The IRS does an excellent job of explaining the situation.  Unfortunately I found the following which I quote from their site:

"Some factors may indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor. There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor, and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another."

Lovely.  Just lovely.  By "no magic" they mean there is no bright line in the sand.  Stand on one side of it and you have an employee.  Stand on the other side and you have an IC.  Stand on the wrong side and you are subject to heavy fines, costs, etc, should you be audited.  They leave it open and create a situation where every case is fact specific.  Change the facts a little and you change the outcome.

I'll repeat what I said earlier.  Spend some money up front on an attorney who knows this material.  It will be money well spent.

Comments (1)
Robin Mullins September 19th, 2009 09:52:14 PM

This link will take you to the State of Washington Employment Security Department website and the specific page where they lay out their questions and tests to determine whether or not a worker is an employee or an IC.  Click here.

I did a comparison of the two departments (L&I vs ESD) and found their requirements to be quite similar but not exactly the same.  For one thing, they approach the answers from different directions.  With L&I they effectively ask "Is this worker and IC?" and with ESD they effectively ask "Is this worker an employee?"  I also noted that ESD seems to offer two sets of questions but I do not understand when and where the two sets might be applied.

By the way, if you are in doubt about your particular situation, retain an attorney to help you get things right.  Yes you will have to pay for the attorney's time and expertise but the alternative (failing an audit) is much worse and will cost much more.

Next I'll see what I can do to find out what the IRS has to say about IC's.

Comments (0)
Robin Mullins September 19th, 2009 04:45:52 PM

It is common for process serving companies to consider themselves "aggregators" who receive service assignments from a variety of clients and then subcontract the actual service to an independent contractor, commonly known as an IC.  The advantage to the company is the avoidance (not evasion) of a number of taxes and associated paperwork.  These include paying half the Social Security tax, all of the unemployment tax, part of the Labor & Industry tax, etc.  In a number of ways it is easier and less costly to use IC's instead of employees.  When done properly this system works and works well.

However, the government, at all levels, doesn't like the IC system.  Various government entities have attempted, and are still attempting, to get rid of this system.  The current situation includes a series of questions that are asked about the company / worker relationship.  The answers to those questions are used to determine whether or not a worker is an IC or an employee.

Based on a recent telephone survey I made of WSPSA members I believe it is quite possible many of our members think they are using IC's when, in actuality, they have employees.  This puts those members at grave risk of failing an audit and being forced to pony up thousands of dollars in back taxes when their IC's are reclassified as employees.  Some of our membership has either already been through an audit or are actually in one at this time.

Unfortunately, different government entities use different tests and questions in deciding whether a worker is an employee or an IC.  They never make it easy.

Based on recent statements made by representatives of the Washington State Department of Labor & Industries, we can expect an increase in the number of audits.  If you haven't already done so you must quickly determine the status of anyone you have serving papers for you.  L&I has an excellent booklet on this topic.  Every member of WSPSA should read it.  It is named A Guide to Hiring Independent Contractors in Washington State.  You can either request it from L&I or you see a pdf version by clicking here.

If you use IC's you MUST NOT DELAY looking into this.  You are at risk.

I'll look into how other government entities determine the company / worker relationship and report here in the near future.

Comments (0)
Robin Mullins September 19th, 2009 11:22:16 AM

The just finished WSPSA Annual Conference was outstanding!  The conference committee seemed well organized and things seemed to go off without a hitch.  Kudos to everyone involved.

During the business meeting I led a discussion regarding ethics which included the use of electronic signatures on proofs of service.  During that part of the conversation I was asked if a process server can sign a Power of Attorney appointing someone(s) to sign his name for him if he is not available to sign the proofs himself.  I thought I knew the answer at the time but wanted to make sure I was on firm ground before I answered the question.  I promised to look into this and get back with an answer.  And that is what this post is about.

I sent an e-mail to two of the most knowledgeable people I know in the industry, Tony Klein in California and John Perez in New Jersey.  I'm convinced these two gentlemen know more about service of process than the rest of the NAPPS membership combined.  Both of them responded with very similar answers.

They both said: "NO!"  Of course they both went on to explain their answer.  Tony agreed to let me quote parts of his response.  If you have additional questions you can either ask them here or contact Tony directly at www.psinstitute.com.  Tony said the following:

"A Power of Attorney gives anther person the authority to their OWN name on behalf another.  You often see it in situations when someone cannot act on their own behalf, and their decisions about certain matters are turned over to someone else, on their behalf."

"Giving someone a Power of Attorney to sign and attest to a factual matter, such as a process serving event, is inappropriate."

"A factual statement or affidavit, using a Jurat, could not be legally made because the signer, the person who holds the power of attorney, cannot personally attest to the facts in the statement, presumably, facts set forth in the Affidavit of Service."  Note:  A Jurat is "The memorandum or certificate at the end of an affidavit, showing when, before whom, and where it was sworn or affirmed."  I had to look it up.

"Signature stamps, electronic signatures, representations of signatures, electronic notarizations, ... these are all relevant issues that we need to be discussing.  As long as it is the server, and NOBODY ELSE (emphasis by Tony), who is affixing that signature, I'm fine with it.  I am not fine with a server turning the signature stamp over to someone else, or giving the office manager the log-on and password to affix an electronic signature.  Those are forgeries.  And, not to put too fine a point on it, the server is part of a conspiracy to the forgery, and is also an accomplice.  Once signed that way, and filed with the court, another crime is committed: "uttering" or "filing a false instrument" which is intended to defraud anyone relying on it."

I am in 100% agreement with Tony and John.  Especially where Tony tells it like it is - forgeries - conspiracy - fraud.  Plain and simple, if you sign another person's name to a proof of service IT IS WRONG.  It doesn't matter if it is an "emergency" (usually meaning you can't get hold of the server) or that you have the server's permission or that you have his Power of Attorney.  It doesn't matter, it is still a forgery.  

My thanks to both of these fine gentlemen for being kind enough to enlighten the rest of us on this topic.

Comments (2)
Robin Mullins September 16th, 2009 11:26:36 PM

I mentioned the use tax in an earlier post.  Here's a bit of information on the sales tax and how it might apply to your business as a process server.  

Many process servers also provide some other services and it is important to know which, if any, are subject to sales tax.

For instance, if you obtain copies of documents for a client, and charge them for the copies, you must charge sales tax on the transaction.  You then pay the collected tax to the state when you pay your B&O taxes.  This applies even if you are only passing through the cost you paid (to the court perhaps) to obtain the copies.

In any given month this may not amount to a lot of money BUT, if you get audited by the Department of Revenue, they will go back 3 years and require you to pay the sales tax.  EVEN IF YOU DIDN'T COLLECT IT!  It is possible to go back to your clients and bill them for the tax but collecting it may be difficult.  This will also absorb a lot of your time.

I know this from personal experience and it was not pleasant.  

Don't assume that what you are doing is not subject to sales tax.  Contact the Department and find out.  Click here to visit their website.

Comments (3)
Robin Mullins September 13th, 2009 11:18:31 PM

What is it that process servers have against professional education?  Why is it that any attempt at holding seminars at the WSPSA Annual Conference is usually met with an empty room?  Do process servers in Washington know all there is to know about what it is they do?  Or are they simply "know it alls"?

I'm a founding member of WSPSA but I also happen to be a member of the Washington Association of Legal Investigators (WALI) so I receive their mailings and announcements.  They're holding their Fall Conference in October.  Let's take a look at the mailing I received today as it seems to list the topics for their educational seminars.  I'll put on my reading glasses and .... yes, it does indeed list some seminar topics.  They are:

1. Forensic Accounting
2. Workplace Violence
3. FOIA - Open Government
4. Business & Financial Fraud
5. NCISS Legislative Update
6. Attorney Expectations of PI's
7. Interviewing the Child Witness
8. The Business of Running a Small Business
9. All Things Evidence
10. The Art of the Interview

Not a bad set of topics.  Obviously they don't all apply to process serving but several of them could.  For instance #3, #5, #6, #8, and #10.  With some slight adjustments at least half of the topics on the WALI list would apply to process servers.  

Now I'll take a look at the educational opportunities available at this month's WSPSA Annual Conference.......Still looking...........Nope, nothing yet..........Can't find a thing.  Why?  Because in years past the level of interest has been slim to none.  

So why aren't process servers interested?  Now you and I both know that no one wants to sit through a 1 hour seminar on Attorney Expectations of Process Servers but sometimes it is important to do things you don't want to do.

Obviously my questions are rhetorical.  I know the answers.  And the main answer has to do with the fact there is no requirement, at any level, for process servers to know what they're doing!  Process servers are answerable to no one.

At some point some level of government is going to force a change upon us.  I understand that is what happened in Florida and what is about to happen in New York.  In a few states, Arizona for instance, the servers saw the light at the end of the tunnel and worked with state authorities and imposed some level of accountability on process servers.  The Federal Trade Commission is already looking at us (see previous posts) we could see action at that level.

If we don't get our heads out of the sand (and soon) someone is going to force change on us.  Then we'll find out how much we really know.

Comments (3)
Robin Mullins September 10th, 2009 05:20:10 PM

I'm not going to say much here.  I'm simply going to point you at this link.

Click here

The link takes you to the transcript mentioned in Jeff Karotkin's blog on August 25th.  The PDF file is 45 pages long but start at page 9 and read the rest.  

On page 18 you'll see "Bad process servers aren't particularly smart."

On page 21 you'll read "If I can come back around to the process servers, which are the problem." and "Process servers ... amongst themselves are participating in a race to the bottom...."

On page 35 you'll find "But the process servers are not (regulated).  That's the weak link, so were trying to address the weak link."

And so much more.  

Here is a quote from an e-mail I received today from a person in our industry whom I greatly respect.  I won't mention his name because I haven't asked his permission to use it.  I don't think he'll mind.

"I see the same e-mails as you from process servers who have the idea that the bad servers will be weeded out simply because they are bad. Those who believe that are wearing blinders. They believe any regulation is bad regulation. I too want the government to stay out of most of my affairs. However, one bad process server makes us all look bad and it is important that we show that we are doing all we can to identify the bad servers and get them out of the business. This is difficult when most states allow one to serve process as long as they are 18 years of age."

Are you wearing blinders?  Are you the weak link?  Are you participating in the race to the bottom?  Are you not particularly smart?

Comments (3)
Robin Mullins September 3rd, 2009 10:25:07 PM

While writing about the use tax in my last post, I was reminded of the topic of paying employees overtime.  Don't ask me why those two topics came together in my old head but they did.  I've been in a number of conversations regarding the rules of employment over the years and overtime almost always comes up.  Some of those conversations have been with fellow WSPSA members and some have been with state employees.  I've decided most WSPSA members (including me) don't know the rules very well AND I've decided many state employees don't know the rules either.  

But I'm only worried about WSPSA members knowing the rules, so here are couple of tidbits of which I am confident when it comes to the topic of paying overtime.

As a guess, I would say that improper overtime payment is probably one of the most common errors made by WSPSA members and small business in general.  One of the biggest assumptions is that if an employee is paid a salary (vs per hour) then that employee is exempt from overtime and you can work them as many hours as you want.  Well Simon Legree, that assumption is WRONG.  It so happens there is a long list of additional, and very specific, criteria an employee must meet before they are exempt from overtime.  Indeed, there are specific exemptions for "Executive", "Administrative", "Professional", and "Sales" employees and they're all a touch different.  Not only that but there are differences between state and federal laws on this topic.  You really should consult an expert before having a salaried employee work overtime because if you get it wrong then you will have problems during an audit.  And audits can be triggered by the simplest of things - Such as a disgruntled former employee who files a complaint against you.

Many people (like Simon Legree) think they can use comp-time in place of paying overtime.  WRONG.  Comp-time is allowed under Washington law but is illegal under federal wage and hour laws.  The idea behind comp-time is when an employee works in excess of 40 hours in a 7 day period (that's the basic definition of overtime) and then takes an equal number of paid hours off in a later week which are equal to the overtime hours worked in the prior week.  So even though you're safe doing this under Washington law you can get in very big trouble under federal law.  Federal laws REQUIRE the employer to compensate the employee at 1.5 times their regular rate of pay for any hours worked in excess of 40 hours in a 7 day period.  The compensation can be in the form of money or paid time off SO LONG AS the paid time off is at the rate of 1.5 hours paid time off for every 1 hour of overtime work.

Since the entire topic of "employees" is like a mine field for small business, I'll come back to it in future posts.

Comments (0)
Robin Mullins September 3rd, 2009 07:43:22 PM

The State of Washington, and its various counties and municipalities, imposes on its citizens a rather regressive tax known as the sales tax.  The state's portion is 6.5% of most retail transactions.  Counties and municipalities usually add another 2% or 3%.  I describe it as regressive because lower income people (and businesses) tend to pay more of their income (on a percentage basis) on this tax than do those people (and businesses) who are, shall we say, more well off.  But the efficacy of the sales tax, in and of itself, is a topic for another time.  In this post I want to make sure you know about the sales tax's twin brother, the use tax.

Many small businesses, including myself and some other members of WSPSA, have learned about the use tax the hard way - by being hit with it as the result of an audit by the Department of Revenue.  If you are reading this from outside Washington you can equate our DoR with the IRS.

The use tax is simply the sales tax under another name.  It applies to exactly the same products and services to which the sales tax applies.  It comes into play when you purchase something but don't pay sales tax on the purchase.  In service businesses, such as process servers and legal messengers, the most common way this happens is when you purchase equipment or supplies from an out of state vendor (such as over the internet) who does not collect the sales tax from you.

So today you buy a computer from ComputersRUs on the internet and save a chunk of change by not paying the sales tax.  Tomorrow you buy office furniture from FurnitureRUs and again save anywhere from 6.5% to 10% (depending on your locality) by not paying the sales tax.  And so on. Time goes by and everything is just fine until the letter from the DoR arrives letting you know they will be in your office next week to conduct a random audit.  

All at once the use tax comes into play.  If you've "saved" quite a lot over the last several years by not paying sales tax you can get out your check book now and prepare to bleed because the auditor is going to apply the use tax on everything on which you failed to pay sales tax.  And you have to pay up ALL AT ONCE!  There might also be interest and penalties thrown in for good measure.

I was caught on this several years ago.  Fortunately all I had to pay use tax on was a laptop computer so the amount was rather modest.  But I learned my lesson.  I now track every purchase.  If the vendor doesn't collect sales tax at the time of the transaction I make a copy of the receipt and put it with my B&O tax information (Now there's another topic for another day!  For those of you out of state, think income tax).  When I pay my B&O taxes I compute the sales tax that wasn't paid and pay it at that time.  This is usually done on a quarterly basis so the numbers are modest.  I am absolutely religious about this because it is so much easier to pay a little at a time as opposed to paying several year's worth ALL AT ONCE during an audit.

Failing to pay the use tax is the most common tax error made by small business in the State of Washington.  Don't make yourself one of them.  

Comments (0)
Robin Mullins September 2nd, 2009 02:33:24 PM

Before reading on here I recommend you read a posting by Jeff Karotkin.  When you've read that, along with the associated comments, then come back here for a different perspective.

In my opinion Jeff makes one of the strongest arguments I've heard for government regulation of the process serving industry.  He may not necessarily agree with this conclusion but to me it is obvious.  I've spent a fair number of years working to pass process server legislation in our state capital (Olympia, WA).  So long as there was not the least sign of opposition to our bills we were successful in shepherding them through the tangled mess that is politics.

BUT, any time any serious opposition surfaced, our bills went down in flames.  The reasons - well there are several.  However, the single biggest problem is the fact the legislators don't know who "we" are.  More than once I was asked if process servers are licensed - "No Mr. Senator, we're not."  Do we receive any training - "No Ms. Representative, we don't."  Do we have to answer to anyone - "Only our client Ms. Senator."  

The series of questions always contained some form this question - "Well then Mr. Mullins, just what do you have to do to be a process server in the State of Washington?"  Hmmm, let's see, how should I put this, perhaps just a simple "Not much" is a good answer.  But here is the real answer:
1.        Be over the age of 18.
2.        Be competent to be a witness.
3.        Be disinterested in the out come of the case.
4.        Pay $10.00 to my local county auditor and fill out a form that collect two or three pieces of information about me.
And that is it.  Period.

This is reminiscent of question and answer from the Federal Trade Commission as mentioned by Mr. Karotkin on his blog:
 
• Speaker - Why isn't the National Association of Professional Process Servers here?
• Speaker - I am not sure that such an organization even exists.

This is EXACTLY the problem I've bumped into in our state legislature.  They don't know who we are and we won't make any real headway on controversial issues until they do.  And they won't know who we are until we establish ourselves as professionals and that won't happen until we submit ourselves to some form of real oversight (regulation) by a government entity of some type.

We can talk amongst ourselves about being professionals but that won't make it so anymore than saying the Earth is flat makes that reality.  A number of people in our industry talk about "self regulation."  Will someone please show me an example of where self regulation of an industry has been effective over any reasonable length of time.  I don't think any such cases exist.  Why?  Because it doesn't work.  There has to be an outside force or motivator which has the power and authority to enforce a base level of ethical standards on an industry.

In my opinion, if we don't work with a governmental agency to regulate process servers then, at some point, the government is going to do it for us.  And when that happens we are likely to be on the outside looking in.  The situation in New York is a perfect example.

And the really sad thing about this situation is that we're doing it to ourselves.  Most of us are ethical in our business practices but there are more than enough examples of unethical (even illegal) behavior to overshadow the entire industry.

 A typical response to a call for government regulation, such as I am making now, is to say that "market forces" will weed out the bad eggs.  Well market forces have had more than enough time to weed them out and it hasn't worked because otherwise Mr. Karotkin wouldn't be saying, "The image of process servers in my opinion is at an all time low."  

I am very sorry to say that I agree with his assessment of the situation.

Comments (3)
Robin Mullins August 30th, 2009 02:02:45 PM

I found the E-Technology report by Bob Musser in the 2009 Spring issue of the NAPPS magazine, The Docket Sheet, both interesting and disturbing.

Interesting because Mr. Musser recaps and rephrases many of the points I posted earlier this year regarding the use of electronically applied signatures.  He agrees that NAPPS, and perhaps our state level associations, should address the "signature problem" by creating  either a Best Practice or a Code of Ethics standard for the application of signatures to proofs of service.   Mr. Musser expressed genuine concern for the level of integrity in the process serving industry and commented that we should strive to be held in high regard by our clients and the public at large.  He wrote:

"We can't afford to take shortcuts on integrity and ethics.  We need to preserve and even enhance the perception that a Process Server is a Professional.  Just like a CPA, a Process Server should be held in high regard by both the entity that hired him, and the public that they also serve.  Every time we do anything to diminish that perception, we are damaging our own credibility, and we are hurting our own future."

I couldn't possibly agree with those sentiments more.  I completely and wholeheartedly agree with Mr. Musser.

But that brings me to the part of his report I found disturbing.  Midway through he is discussing the use (actually misuse) of electronic signatures.  He describes how some companies are allowing their office staff to input the server's PIN and thus apply the server's electronic signature to the proof of service AND THE SERVER ISN'T EVEN IN THE BUILDING!  Mr. Musser goes on to say, "I believe this is a bad practice for the long-term health of our profession."  And once again I agree completely but feel he is making a tremendous understatement.

Mr. Musser then writes the following:
"Rob Dayton (the creator of LoyalDog Software) actually pulled the capability of using signature images from his software because he felt that customers were abusing the capability.  Due to customer demand, he added it back in, but advises customers against misuse.  As vendors, it's our job to provide companies with powerful tools to allow them to be efficient.  As professional process servers, it's our customer's responsibility to use those tools in an ethical manner."

Kudos to Rob Dayton for at least trying to impact the situation and a question to Mr. Musser - Why didn't you pull the same capability from your software at the same time?  Mr. Musser, you know (not think, not guess, KNOW) some of your customers are misusing the electronic signature feature.  You and Mr. Dayton (since he replaced the feature), and all other software vendors are enabling some of your less than ethical clients to do exactly what you are writing against - "hurting our own future."  Those less than ethical few may not care about the future but many of us do care and we don't want our profession sullied.

I've said it before and I'll repeat it here - DNA counts.  Simple PIN level security in an invitation to misuse the ability to electronically sign proofs of service.  You must build in a security system based on something unique to each and every process server.  At this time that means either a finger print reader or retinal scanner.  

For all of our futures, do the right thing!

Comments (1)
Robin Mullins August 28th, 2009 11:52:20 AM

The process serving industry is teetering on the brink of a crisis.  Over the past 20 years many of us have been so enthralled with doing things faster and cheaper that we've lost our way.  The evidence for this has been spelled out in a number of my previous posts.  We've lost the connection between our work and it's roots in the 5th, 6th, and 14th Amendments.  Realizing those connections allows for what amounts to self regulation.  We can ask ourselves if we're acting responsibly, honorably, and nobly.  

"Noble", that's an old word isn't it.  You don't hear it much anymore.  But it is a word that helps a person form their moral compass.  It helps answer the question "Should I do this?"  It may be legal but is it ethical?  Having a sound moral compass lets you know which is more important, acting legally or acting ethically.

Prior to the current economic crisis most of the actions made by government, business, and individuals were legal.  And yet they still led us into a crisis.  The reason being that their actions, though legal, were neither ethical or noble.  The result will be greater government regulation.   It seems obvious to me that there was a failure of self regulation.  The professions (attorneys, accountants, bankers, etc) failed to regulate themselves.  Short term profit was purchased at the expense of responsibility.  And the rest of the country simply followed along with an "eat, drink, and be merry for tomorrow we die" attitude.  Is there any wonder that China has a $2 trillion surplus while we (the US) run up ever higher trillion dollar deficits?

Process server around the country are faced with the same set of choices.  Do we put profit ahead of responsibility, honor, and nobility?  Will we fail to self regulate ourselves?  Unfortunately the answer is probably "yes."  If that is the case then, at some point, government will intervene.

I am convinced we need government regulation in Washington.  Not because we are experiencing anything like the sewer service problem so recently discovered in New York, but because it would be preventative to do so.  WSPSA moved a few years ago to interest the state Supreme Court in regulating process servers but the Court declined.  The only other alternative is the Department of Licensing.  I'm aware many process servers are gun shy of DOL but if we don't act first then, at some point, government will act for us.  When that happens we may have a lot less input into the rule making process than we do now.  The rules will be made for us instead of by us.

Comments (0)
Robin Mullins June 20th, 2009 10:33:31 AM

A friend just sent me a report issued in June of 2008 by MFY Legal Services.  The report summarizes a study (click here for the report) which found evidence of process server misconduct in the City of New York.  It also presented several recommendations to the City of New York Department of Consumer Affairs regarding its oversight of process servers.  

Evidence of Misconduct - MFY looked statistically at 180,177 collection cases in NYC.  They found that only 8.6% of the defendants appeared in court.  This means that in the other 91.4% of the cases the plaintiff could have taken a default judgment.  This number was considered seriously low and evidence that many of the defendants had never been served and were, therefore, unaware of the case being brought against them.  They also studied 91 cases in greater detail.  These cases were all served by just 3 process serving companies.   Here is a table from the report.

Process Serving Company	No. of Defendants in Sample Who were Allegedly Served	Service by "Nail and Mail"	Service Upon a Person of Suitable Age and Discretion	Service Upon the Defendant by Personal Delivery to Him or Her
Company No. 1	30	17%	83%	0%
Company No. 2	27	93%	7%	0%
Company No. 3	34	18%	64%	18%

Anyone who has been in the business for any length of time will realize that getting personal service only 6 times out of 91 serves is a highly questionable number.  Combining statistics with information from 11 case studies caused the MFY researchers to conclude there is considerable fraud occurring by process servers in the City of New York.

Recommendations - MFY made the following recommendations to the New York City Department of Consumer Affairs, which is responsible for licensing process servers in NYC.

• Conduct comprehensive audits of process server companies and licensed individuals prior to renewal of their license every two years.
• Require process servers to designate DCA as agent for service pursuant to CPLR 318.
• Require record keeping for seven years rather than two years.
• Require process servers to record in their record book how they determined the residence served is the actual residence of a defendant.
• Immediately establish a joint task force with representatives of the Civil Court, DCA, consumer advocates, debt collectors and the process servicing industry to investigate the scope of the problem identified in this Report and to recommend additional solutions.
• Examine the results of the recent amendment to the Uniform Rules for the New York City Civil Court requiring additional notice to defendants in consumer credit transaction cases, and compare those results to affidavits of service filed in those cases.

The bottom line for those of us here in Washington is to realize the misconduct being reported out of NYC is NOT LIMITED to NYC.  Reports such as these need to be a call to action by NAPPS, WSPSA, and every other state process server association.  Our house needs cleaning and if we don't do it then someone else will.

Comments (0)
Robin Mullins May 30th, 2009 07:41:45 PM

Process servers in this state are in dire need of regulation.  It is needed to protect the public and the industry.  In Texas and Arizona regulation has been done through their respective state supreme courts.  WSPSA attempted to interest our Supreme Court in regulating Washington servers a few years ago but they chose, unfortunately, to not do so.  That leaves us with the Department of Licensing.  

There are several levels of regulation.  They are none, registration, certification, and licensing.  

None - This level includes a great many trades and professions.  There is no state oversight what so ever.  This includes such things as janitors, bookkeepers, mechanics, and the like.  If you are doing this type of work the state doesn't care whether you know what you are doing or not.  No testing, no training, no accountability.

Registration - This is little more than a listing of people who say they are doing a particular thing.  Process servers fall in this category.  We are required to register with the county auditor by filling out a simple form and paying a $10 fee.  No testing, no training, no accountability.

Certification - Refers to a certain level of knowledge or expertise. This is often, but not always, provided by some form of external review, education, or assessment. One of the most common types of certification is professional certification, where a person is certified as being able to competently complete a job or task, usually by the passing of an examination.  Examples include software developers and testers or a health professional who, although licensed by the state, is also certified by a professional organization to perform specialized types of care.  Certification does not refer to the state of legally being able to practice or work in a profession. That is licensure.  Certification almost always involves testing, training, and high levels of accountability.

Licensing - This is the highest level of regulation.  It is granted by a state or other government entity.  Applicants usually need to demonstrate a certain level of knowledge or skill in order to obtain a license.  For instance, in order to drive a car on a public road you must have a valid driver's license.  To get that license you must meet certain criteria (age, etc) and pass both a written and a practical test.  Other examples include doctors, nurses, attorneys, security guards, and real estate agents.  Often there is a requirement for continuing education.  And although enforcement is always a budgetary issue, licensed professions have the highest level of accountability.

Right now the process serving industry is somewhat akin to a wild west show.  There are no codes of conduct, no base level of ethical behavior, and little or no accountability.  Almost anyone can serve process in almost any situation.  There is no training, no testing, and no one has ever heard of an audit.

The State of Washington needs to get a handle on things before we start hearing stories similar to those coming out of other states.  That means approaching the legislature and the Department of Licensing.  It means subjecting ourselves to a certain level of scrutiny.  But if we (those of us in the industry) don't initiate the process then, at some point, it will be started for us.  And at that point we may well have it done to us.

Comments (0)
Robin Mullins May 30th, 2009 06:41:42 PM

Is it a stretch to compare baseball players and process servers?  I would like to think so but the evidence says otherwise.

Over the past decade the doping problem in baseball has become more and more public.  With the recent disclosure that slugger Manny Rameriz has been suspended 50 games for failing a drug test the doping situation has become about as "in your face" as it can get.  The debate rages in the papers, on the radio, over the internet!  The penalties are too lenient!  They're too harsh!  Just let everyone dope!  Everyone has an opinion!  About what?  A bunch of over paid athletes who will do anything to increase their performance so they can get paid more money.  

This morning I listened to a commentator discuss the situation on NPR radio.  He was wondering why such talented people, being paid such enormous amounts of money, would risk involving themselves with performance enhancing drugs.  His conclusion was that it has become the culture in and around professional sports.  No matter how talented a player might be, he simply can't remain true to the sport when he thinks that every other player is using.  When he sees the other guy hit a home run and he doesn't.  So he uses too.  AND ITS JUST A GAME!

Now switch gears and think about process servers.  Why do some of us, particularly in California right now, think we need to forge signatures?  Is it so we can get that big collection account away from the "other guy" by promising a one day faster turnaround?  Is the account worth that much?  And how far is it from forging a signature on a completed serve to just bypassing the server altogether?!  Oh yes, they're doing that in New York again aren't they.  

The business we're in IS NOT A GAME!  We're not just chasing a ball around on the grass.  We have a serious day to day impact on the lives of thousands of people every day all across this country.  Do we forget that?

But, as in sports, it has become the culture in our line of work.  It is so easy to fall into the trap.  To take that first step down the path that ends in lies and deceit.  Over the years here are some of the things I seen that have helped bring us to where we are today.

1. Notarization, take 1.  The notary knows my signature so why should I sign in front of her?  I'll just sign and leave them in her box and she can notarize them tomorrow.  
2. Notarization, take 2.  The notary applies her signature and seal to a stack of unsigned proofs.  She knows the servers and they can simply sign them as needed.
3. Forgery, take 1.  The server who made the service isn't available (moved, got mad and quit, etc).  The office manager can sign for him.
4. Forgery, take 2.  The server screwed up and served the paper a day late.  We've got his scanned signature on file.  We'll just change the service date, put his PIN number in for him, and the problem is solved.
5. False swearing, take 1.  It takes to long to turn around proofs.  We can cut a day off it if we have the servers sign a batch of blank ones.  Then we'll just use them as we need them.
6. False swearing, take 2.  They're just collection papers.  And the people know they owe the money.  We'll just pitch the papers and let the new software take care of the rest.
7. AND SO ON...............

Baseball players are doping.  We're taking shortcuts.  Baseball players live in a world where the culture involves cheating.  We live in a world where the culture involves hurting people.

But hey, we're making money at it.  Right?

Comments (0)
Robin Mullins May 9th, 2009 01:32:39 PM

The National Association of Professional Process Servers (NAPPS) needs to establish a best practice for the use of electronic signatures.  NAPPS is the only organization with the technical knowledge  (or the funds to buy the knowledge) and the marketing clout needed to push software providers and users towards the ethical high ground.  So what might such a best practice look like?

As mentioned in an earlier post, the problem revolves around authentication and it involves both the signature and the document.

Ink Authentication - The old fashioned way.  Real ink applied to real paper by a real person.

Signature Authentication - A person's handwritten signature is unique unto itself and to the person.  It is different each time it is signed and yet many signatures, signed over a long period of time, can be ascribed by a handwriting expert to a single individual.  Electronically the only way to assure that the signer is the process server is to ban the use of PIN numbers or any other item which can be transferred (loaned?) to another person.  This means either a fingerprint or a retinal scan.  Any software application allowing for any other type of process server identification should, by definition, fail to meet the best practice.

Document Authentication - After the process server applies his electronic signature to the electronic document, in this case a proof of service, it needs to be sealed.  Not even the server should be able to access it again.  The system can allow for multiple printings but forbid any modification.  Mistakes discovered after the application of the signature can be corrected by the creation of an amended proof which should be clearly marked as such.  Any document created by an electronic signature system should be clearly marked as such in the body of the document.

Creation of such a best practice would not interfere with a software developer's ability to create and sell his/her product.  They wouldn't be forced to create a product which meets the best practice.  But they wouldn't be able to advertise that they meet it.  Likewise, a process server would not be able to advertise he/she meets it either.  Market forces would go a long way in creating a self policing system.

Comments (0)
Robin Mullins May 4th, 2009 08:17:48 PM

It was recently revealed by NorthCountryGazette.com that another instance of sewer service has been found and exposed in New York.  Click here to read the article.

It seems a company named American Legal Process (ALP), along with its owner William Singler, has been indicted by the New York Attorney General's office for filing thousands of falsified proofs of service.  One of the results, and the most direct, was the filing of civil judgments against thousands of people who were never served.  Never given the notice guaranteed them by the Constitution.

Why?  Simple question with an equally simple answer - GREED.  Your profit margin is greatly enhanced when you don't have to actually track down and serve the defendants.  It is ever so much simpler to take in the service assignment and then immediately generate proof of service.  It avoids all that nasty driving around, knocking on doors, etc.  

From the article:
According to the court papers filed Tuesday, ALP, as a legal process server, was hired by high-volume debt collection law firms in New York to serve legal papers, usually a summons and complaint, notifying individuals that they are being sued and must answer the complaint. ALP, however, allegedly engaged in “sewer service,” where process servers take advantage of individuals facing lawsuits by failing to properly alert them and denying them the chance to respond. As a result, thousands of judgments were allegedly obtained against unsuspecting New Yorkers, many of whom first learned they were being sued when they found their bank accounts frozen or their wages garnished.

ALP allegedly covered up the fraud by falsifying sworn affidavits of service in courts across New York. The Attorney General’s Office also filed a parallel civil suit against ALP and Singler seeking a court order prohibiting them from engaging in improper service of process, monetary damages and substantial penalties.

One of the corner stones of our judicial system is the right to notice.  Securing that right is the only reason process servers exist.  

Unfortunately, sewer service has a long, albeit disgraceful history.  Singler certainly isn't the first to think of this method of getting rich quick.  I've heard about sewer service for as long as I've been in the business.  The original story described another fellow from New York who got the reputation of being the best server around.  He could serve anyone, never failed.  That alone should be a red flag.  No one serves 100% of their assignments.  Anyone making a claim of that sort has either only been in the business for a short (very short) while or is lying.  The story goes on to say this fellow stayed in business until sewer workers discovered stacks of boxes of legal documents tucked away in a New York sewer.  Investigators later found proofs of service had been filed in all of those cases.  I heard that 30 years ago.  It almost seemed like an urban legend.

Between then and now I've heard similar stories out of New York, Florida, and California.  Considering some of the "requests" I've had over the years I have no choice but to believe the stories are true.  It is not at all unusual to be asked to sign proofs which contain false information.  My answer is always an unequivocal "NO!"

We're talking about perjury, suborning perjury, fraud, and forgery!  The end result is little different from walking into a bank with a note and your hand in your pocket!

In another article on the same case, the New York Law Journal reported the following.  Click here to read the article.

Mr. Cuomo's office also said yesterday that he plans to sue one of American Legal Process' largest customers, the debt-collection law firm Forster & Garbus, of Farmingdale. The attorney general accused the firm of failing to supervise the company and relying on legal papers "it knew or should have known were false."

"I am 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," Mr. Cuomo said in his statement.

So it seems that not only the process servers are subject to punishment.  Collection agencies and law firms across the nation should be paying close attention to this.

This topic ties in very neatly with my posts on the use of electronic signatures.  There is no doubt in my mind that people will use (are using) technology to commit sewer service.  And the numbers of cases involved could run into the tens of thousands!  This will happen.  It will happen unless strong measures are put in place to prevent it.  The problem will revolve around authentication.  Who is applying the signature?  Is it the server or someone in the office or someone at the client's office or someone in a law office?  

The ONLY correct answer is the process server.  The server must apply the signature or it is a forgery.  

But that isn't what will happen.  After all, what if the server is sick or is mad at their employer or moved out of town or maybe just takes too long to get around to applying their electronic signature.  You can bet that, if possible, someone else will apply it for them.  FORGERY!

The problem is that computers don't detect DNA.  If the system applying the electronic signature depends on a PIN or a smart card or any other "transferable" method then sewer service will happen.  The only method I can think of that stands a chance of preventing this problem is the use of a fingerprint reader or retinal scan.  

Beyond that it is up to those of us who don't want to involve ourselves in such illegal practices to refuse to cooperate and to help the authorities to build cases against those who do.

Comments (1)
Robin Mullins May 2nd, 2009 07:43:48 PM

The following consists of parts of e-mails exchanged by a number of leaders in the industry.  These people included:
Gary Crowe, NAPPS Administrator
MaryLee Rustand, WSPSA President
John Perez, former NAPPS President
Jean Randall, former NAPPS board member
Tony Klein, nationally recognized expert in process server education
Bob Zornes, former Executive Director WSPSA

Here is a link to the document to which they make several references:  Scanned Signature Consent Redacted.pdf

"I agree with you that the use of scanned signatures to be affixed to what amounts to a proof of service should not be utilized.  
I will cause this message to be sent to the NAPPS Board as I believe that it is an important issue that must be addressed along with other issues surrounding the proper execution and notarization of proofs and affidavits of service.
Thanks for this information.
John Perez"

"I think it is important to note that they only want to use the scanned signatures as it relates to notifying a trustee that a postponement or a sale was completed.  I don't see this SPECIFIC use of a scanned signature as a problem because these documents are neither filed nor recorded.  As I see it, the real problem is that this usage likely will lead to proofs of service regarding posting/service, in the consent, this company specifically says it will use scanned signatures for posting certificates which are recorded just prior to any foreclosure sale.  Because the original is returned to the person requesting the recording there is no way to determine whether the recorded proof had a scanned image or an original signature.
As John stated, this issue will be discussed by the board and is likely be the topic of discussion during the conference this week in Las Vegas.
Best regards,
Gary A. Crowe"

"I am completely against scanned signatures. There is no guarantee as to the? validity of any proof.? I have recently experienced a slew of forged proofs filed by California affiliates which, upon examination, contained multiple fraudulent errors....all completed in my name or? that of my server.?  No one seems to give a damn about this "under penalty of perjury" issue. It is a serious matter in our industry and I see scanned signatures a great ethical danger to our profession.
Jean"

"There is a place for electronic signatures in this equation.  I suspect that process servers will all be signing electronically in the not-to-distant future.
As long as it is the SERVER signing it by clicking the button, I'm fine with it.  It is not OK for someone else, clear across the state, or on the other side of the world, to click it and apply the electronic signature.  But they CAN prepare and send the completed proof, or document for signature electronically and have the server electronically sign it, then send back, or to the court, or wherever.  That's coming.  The technology is here to do that now.  It's just a matter of time before that will be universally acceptable.
By the way, if we as a profession can implement this the right way, it will almost eliminate late proofs of service, which is why service agencies fudge on the signing in the first place.  Unfortunately, many of the people in the process serving profession don't seem to view the proof of service as a key part of proving service that becomes evidence in a court file - the proof is only an annoying component of the commodity for sale.
Tony Klein"

"I have the same visceral reaction to it.  Scanning a signature "to implement a 'paperless' system" can't be good for anyone other than the company using it.  If somebody needs a copy of a signature to scan onto a document that requires a signature, it sounds like an intent to use it for a forgery.
I'm not familiar with the procedure for posting or to cry a trustee sale.  Is that a server requirement, or a declaration under penalty of perjury?  It still isn't passing the smell test with me. I don't  understand what the attached form does by giving another the authority to use the signature. It states that it "will used for the purpose of posting(s) [sic] certificates, postponement(s), certificate(s) of sale certificates only that I have performed."  Use of the past tense seems to imply that a service has already been performed, but the use is unclear. Will it be used for a proof of service under penalty of perjury? Is it declaration of some other kind relating, in any way, to the posting?  Is it to be used to put on the document it self as an exemplar of what was posted?
Some process server programs allow for the capture of an electronic signature, and market the ability of printing the proof of service in COLOR so the signature prints in blue so it LOOKS LIKE an original.  My position is that if the server isn't the one who clicks the signature onto the document, it's a forgery.
Even a power of attorney wouldn't give another the authority to sign another person's name, or uses its likeness for that purpose.  A power of attorney, as I understand it, is when the signer gives the authority to another to sign his or her OWN NAME on his behalf. That being said, I don't see how that is appropriate in a blanket way, for ANY declaration under penalty of perjury. The server can't even do that for a future event, even if he signed his own name!
Tony Klein"

"First, notice that I did not Reply to All.
With regard to scanned signatures:  Not just no, but HELL NO.
I’m sure nearly all of you have been around long enough to have experienced clients wanting things done in unscrupulous ways.  
For instance, Collection Companies wanting fees put on Declarations of Service that  were not actually billed at those rates.  The Federal District Court in Spokane is the site of one such lawsuit against a company that did that.
Or the bill submitted to the legislature several years ago by the Collection Companies where an employer could be served documents for subsequent serviced to an employee.  This was to be done only after a concerted attempt was to be made at the residence.  Ha!  Some Collection Companies were sending us to the employer on the first trip.  That rule, justifiably, went away in part because of the systemic abuse of process.
Or the manner in which some Trustee Companies conduct their sales (I won’t get into the details of that here but given the current situation with foreclosures, it wouldn’t surprise me to see the conduct of sales investigated—in fact, one former member pleaded guilty to fraud in the not-too-distant past).
Or that at least two members of WSPSA have routinely had their servers sign blank Declarations of Service that the company fills in later when the server calls in that service is complete.
Folks-we are ripe…no, RIPE for legislative oversight, regulation, investigation and a lawsuit that is already past due.  We have enough on our plate (such as service by mail and email) than to shoot ourselves in the foot by allowing yet a new shortcut to be authorized and then abused..
Scanned images have already been used by some Trustee Companies for several years.  I know I’ve personally been asked to change some of my Declarations because some trustee had screwed up and didn’t want his client to know it.  No way.  I eat my own mistakes but not those of others.
Now we have another Trustee that wants to scan signatures.  At some point, this process will be abused by somebody and you can bet that when it happens, there will be a dogfight as to whether YOU actually signed that document.  While you may eventually prevail, you still have to defend, and that’s gonna take time, money and a hit on your reputation among your peers and the courts.
As a member of this industry, I will not allow my signature to be scanned or in any other way put onto a document that says I am signing under penalty of perjury.  Only a fool would do that and the reason, simply is this:  you don’t want you client to go find somebody else who WILL do it for them.
The Curmudgeon—Bob Zornes"

It will be interesting to see if anything new comes out of the 2009 NAPPS conference on this topic.

Comments (0)
Robin Mullins May 2nd, 2009 04:30:03 PM

There is no question that technology has changed society and will continue to do so into the foreseeable future.  Most changes are positive in nature and are embraced by individuals, companies, and government.  And this certainly includes our legal system.  The use of electronic signatures is an application of technology which has caused great angst at all levels.

So what is a signature?  Dictionary definitions include:

• Your name written in your own handwriting.
• A mark made by an individual which is unique to him or her.
• A distinguishing style.
• Proof of identity.

For centuries acceptable signatures only included such things as a handwritten name made by a person on a piece of paper or the impression of a special seal.  They were unique and were part of a one to one relationship with the person signing or the person applying the seal.  But as early as the mid-1800's this began to change.  A marvelous invention had created the ability to transmit virtual documents (though we might not recognize them as such today) across thousands of miles in only a few moments.  That invention was the telegraph.

It took just over 100 years for the next paradigm shift to occur.  In the 1980's and 1990's the use of fax machines became common place in most businesses.  It was not unusual to see special wording on a document which allowed a facsimile to be treated as the original.  

Now, only a few years after the implementation of fax machines, where there was a "real" original in existence, we are seeing the use of virtual documents, signed with virtual signatures, where there is no underlying physical document in existence.  

As process servers we are concerned about providing evidence to a judicial or quasi-judicial system that a particular act occurred.  The American Bar Association gives us this:

• Evidence: A signature authenticates a writing by identifying the signer with the signed document. When the signer makes a mark in a distinctive manner, the writing becomes attributable to the signer. <1>

Note the word "attributable."  This brings up the concept of authentication which is the process of assuring that an electronic signature is that of the person purporting to sign the document and was indeed applied by that person.  But authentication needs to apply not only to the signature but also to the document itself.  This later is important to assure the document isn't changed after the signature is applied.

So what is an electronic signature?  The technology behind the answer is complex and I do not purport to fully understand it.  However, here is a practical summary of several different definitions I found:

• Electronic Signature: A unique electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record.

Interestingly, the proper use of an electronic signature on an electronic document, given adequate authentication, is considered superior and more reliable than putting pen to paper.  The important phrase is "proper use."

I found the following an interesting summary of an authentication process which can be applied to paper.  <2>

1. A signature is capable of being identified as authentic by experts in handwriting analysis, as well as being challenged by the person whose name has been signed.
2. The rules of court require other identifying information, such as a party’s address. The content of the pleading also reveals details about the party and his relationship to others individuals involved in the case or controversy.
3. The opposing party acts as a rigorous check against inaccuracies in the information provided by the filing party.
4. A party submitting a document to the court can be held in contempt for making intentional misrepresentations.
5. The court may sanction the party by dismissing the case, not allowing documents or other evidence to be admitted, or taking other actions to dissipate the impact of the party’s fraudulent representations.
6. Criminal laws punishing forgery and fraud deter fraudulent activity.
7. Civil law remedies such as suits for committing fraud, or for otherwise engaging in a misuse of the judicial process, also act as deterrents.

I'm confident a similar process can be applied to electronic signatures.

Comments (0)
Robin Mullins May 2nd, 2009 01:00:27 PM

One of the major controversies in the process serving industry today is the use of electronic signatures on proofs any kind.  Follow this link to see a document I recently received from an important client.

Scanned Signature Consent Redacted.pdf

The client wants to move to a "paperless" system.  The advantages, to the client, of such a system are fairly obvious.  They include:
1.        Fast notification of completed assignments.
2.        No inconvenient "paper" with which to deal.
3.        Simplified storage.
4.        Reduced labor costs
5.        etc.
My visceral response was to cry "NO" at the top of my lungs!  However, I've finally (after far too many years) learned it is better to act from knowledge instead of instinct.  Paperless systems may have certain advantages but they also have serious disadvantage, especially for process servers.  

The last NAPPS convention I attended was in Portland, so it has been a few years.  I recall a great deal of discussion at that meeting concerning the use of imaged signatures.  My recollection is that 90% or more of the comments were against their use.  At that time, and to this day, I see the so called paperless systems as the antithesis of the procedure all process servers should be using, i.e., original signatures.

Most or all of you have probably heard about the recent reports of sewer service in New York (the perpetrator was not a NAPPS member).  In my opinion, scanned signatures are begging to be misused.  Technology can help us do great good in very little time but it can also allow someone do great harm in very little time.

All of that said, perhaps things have changed in ways I am not aware.  Perhaps the use of scanned signatures is becoming the industry standard.  So I've been doing a little research on the topic and will use the next several posts to lay out the results of that research.

Comments (0)
Robin Mullins May 1st, 2009 05:51:13 PM

After 30 winters of serving process around Whatcom and Skagit counties I finally found a tire chain replacement product with which I've truly fallen in love.  They go by the name AutoSocks and there's a link at the bottom of this post which will take you to their website.  They're from Sweden and almost as lovely as the famous bikini team from that same part of the world.

Though known for rain, Washington can have some nasty snow storms that can bring most traffic to a complete standstill.  And it is even worse in northern Whatcom County, right along the Canadian border, where most snows are accompanied by a ferocious wind know as the "Northeaster."  It blows hard down through the Fraser River valley and then turns south at the little border town of Sumas.  From there it follows the Nooksack River past Lynden and Ferndale until it finally heads out across the Salish Sea into the San Juan Islands and beyond.  Wind chills often drop below zero and snow drifts cover many of the roads.

Anyone who's been in the business very long knows that if you don't serve (or at least attempt to serve) you don't get paid.  So snowy weather, though beautiful, can make it hard for servers to pay the bills.  Down through the years I've settled on Toyota front wheel drive cars as my vehicle of choice.  Tercels, Corollas, and Camrys will go almost anywhere.  And I've used chains and studded tires but both have serious drawbacks.  If nothing else I get tired of the noise.  Anymore I pretty much depend on experience and common sense to get me through winter weather.

But a few months ago we had a doozy of a snow storm that blanketed almost the entire state.  Spokane was shut down completely.  Driving north on I-5 after a meeting in Seattle I was listening to the Dave Ross Show on KIRO radio when he put out one of his famous APB's for anyone who had something better than chains to use in the snow.  I hate chains (so does Dave Ross) so my ears perked up when someone called in and mentioned AutoSocks.  He said you can put them on in 2 to 3 mintues (vs 15 to 20 for chains) and were accepted in some states as chain equivalents.  When I got back to my desk I checked out their website and was impressed by what I saw.  

I ordered a set (NOTE:  They are tire size specific, so pay attention to that when ordering) for about $100.00.  They arrived a week or so later and then I had to wait for it to snow again.  Several weeks went by and I was getting anxious.  I even drove up to the ski area at Mount Baker looking for some place to test them but the weather just wasn't cooperating.  Then I got lucky.  We had a nice little snow storm and some cold weather.  The streets around Bellingham were nasty.  Cars were in the ditches everywhere.  I-5 was blocked by jackknifed semi's.  Perfect!

Out came the AutoSocks and away I went.  Getting out of my garage was the first test as there is a steep hill right outside the door, no problem, went right up it.  I rolled smoothly down the street (AutoSocks make no sound) and headed for Sehome Hill.  The closer you get to the hill the steeper it gets and I knew right where to find the worst of it.  I went up and down those streets without a problem.  But I needed something worse so I drove out to the Geneva District on the shores of Lake Whatcom.  The hills rise sharply up out of the lake, through a narrow band of residential neighborhoods, and quickly up into the forest.  The snow is always deep up in there and more than once I haven't been able to reach the higher areas without parking and walking on up to serve papers on foot.  However, this time my car drove smoothly to the top of the hills without hardly a slip or a slide.

I drove about 25 miles around town that morning with but one problem.  I lost control and did a 180 making a right hand turn out by the airport (that is so much fun, gave this old man a rush).  After regaining control of the car I realized I had become too comfortable because of the traction provided by the AutoSocks.  They're so quiet you forget about them.  But snow is snow and the unwary had best stay at home.  Chains, studs, or AutoSocks, the real traction device is located between your ears.  Lesson learned.

AutoSocks have my strong recommendation.  I'm going to buy them for all my company cars.  They're easy to put on, easy to take off, and easy to take care of when not in use.

Here's that link to the AutoSock website -  here - Watch the videos, especially the one in Swedish with Jan and Olav.

Comments (0)
Robin Mullins April 11th, 2009 07:07:29 PM

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Welcome to Robin's Ruminations Thoughts - Comments - Discussion Service of Legal Process in the State of Washington

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Like the banner says - Welcome.  I'm Robin Mullins and I've been a professional process server for over 30 years.  Which, I suppose, isn't necessarily saying much.  At least it means I've been crazy enough to stay in this business for a long time.  I'm very interested in all things process related.  Especially if they relate to server education or the advancement and enhancement of the profession.  

If you're looking to get rich being a process server then you've come to the wrong place.  No schemes here.  No secret formulas.  Just a few comments about what I think it takes to be a pro in this business.  And I'll admit there is a certain amount of marketing to this blog.  Certainly if you send a service assignment to 4th Corner Network then I'm not going to turn it down.

And I'll be paying attention to what you have to say.  One thing I've learned over the years is that I don't know it all.  There is always something new to learn.  I was on a local school board a while back and one thing we wanted to teach the students was to be a "Life Long Learner."  I'm doing my best to be one of those myself.

Some of you may know me.  I'm a founding member of the Washington State Process Servers Association (WSPSA) and a long time member of the National Association of Professional Process Servers Association (NAPPS).  If you're a server then you should be a members of NAPPS and of your state association.  There really is strength in numbers and there are people and groups out there who would eliminate the need for our services if they could.  So join up if you haven't already done so.

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Comments (0)
Robin Mullins February 16th, 2008 08:23:27 PM