Beware of Process Server Scams

Process Service Fraud aka Sewer Service

It’s known in legal circles as “sewer service.” The public knows of it as process service fraud. This fraud is when one fails to serve a notice of complaint and then files a false affidavit claiming the notice has been properly served. When the debtor doesn’t show up in court, the collector can then apply for, and almost always wins, a default judgment.

The first a victim often learns about the fraudulent judgment is when their bank account is seized or a lien is exposed. The judgments also ruin a person’s credit report.

Consumer advocates say the practice has rapidly grown in recent years. It’s fueled by many sources. One is the recessionary rise in consumer debt actions. Another is the emergence since 2000 of companies that buy up charged-off debt for pennies on the dollar, and then seek to recover the full debt, along with interest, etc., for themselves. Another is unethical lawyers who are motivated to win at any cost. Another is unethical process servers who get paid by just saying they did the job.

On July 21, 2009, saying they were the victims of a “widespread fraud on New York’s courts,” State Attorney General Andrew Cuomo Wednesday filed a suit to throw out financial judgments against 100,000 people throughout New York State, including almost 18,000 on Long Island.

The 100,000 each had to pay an average of $5,474, because they were unaware that lawsuits had been filed against them in state courts. None knew of the alleged delivery of a writ, summons, or other legal papers to the person required to respond to them.

As a Deputy Sheriff, I’d never done or even heard of sewer service. The first I’d heard was in the James K. Olson fraudulent claim of service of his Reno wife resulting in a fraudulent and onerous default restraining order @ Gun Controllers Among Us, Marin County California Courts @ http://www.broowaha.com/articles/3749/gun-controllers-among-us-marin-cou... a fraudulent and heinous $300,000 default judgment @ Flip Flop Rers Among Us, James K. Olson @ http://www.broowaha.com/articles/3630/flip-flop-rers-among-us-james-k-ol.... Then I came across it again with John and Kay Sickler @ Cheaters Among Us, Sickler @ http://www.broowaha.com/articles/3320/cheaters-among-us-sickler.

And again with Scott and Feather Dugan @ Outlaws Among Us, Zane http://www.broowaha.com/articles/3394/outlaws-among-us-zane.

And again with Swindled By Your Own College @ http://www.broowaha.com/articles/5044/swindled-by-your-own-college.

Local Northern Nevada names like David Wolfe from the Washoe County Sheriff’s Department as well as Mike Star of Northern Nevada Investigations came up several times. So did legal assistant John Ham, lawyer Cliff Young, lawyer Scott Tisevich, and lawyer John P. Springgate. So also did lawyers Gayle A. Kern and Michael Lerner.,

San Rafael, California attorneys Steven T. Schoonover and Michael B. Samuels' names came up.

Process is the general term for the legal document by which a lawsuit is started and the court asserts its jurisdiction over the parties and the controversy. In modern U.S. law, process is usually a summons. A summons is a paper that tells a defendant that he is being sued in a specific court that the plaintiff believes has jurisdiction. Served with the summons is a complaint that contains the plaintiff's allegations of wrongdoing by the defendant and the legal remedy sought by the plaintiff. The summons also informs the defendant that he has a specified number of days under law to respond to the summons and complaint. If the defendant does not respond, the plaintiff may seek a default judgment from the court, granting the plaintiff the legal relief specified in the complaint.

Rules of civil procedure and criminal procedure determine the proper form of legal process and how it should be served. The rules vary among federal and state courts, but they are meant to give the defendant notice of the proceedings and to command him to either respond to the allegations or to appear at a specified time and answer the claim or criminal charge.

The concept of notice is critical to the integrity of legal proceedings. Due process forbids legal action against a person unless the person has been given notice and an opportunity to be heard.

Process must be properly served on all parties in an action. Anyone who is not served is not bound by the decision in the case. A person who believes that proper service has not taken place may generally challenge the service without actually making a formal appearance in the case.

Whether service was proper is usually determined at a pretrial hearing. A defendant must request a special appearance before the court. A special appearance is made for the limited purpose of challenging the sufficiency of the service of process or the personal jurisdiction of the court. No other issues may be raised without the proceeding becoming a general appearance. The court must then determine whether it has jurisdiction over the defendant.

Where Process May Be Served

Legal papers have to be served within the geographical reach of the jurisdiction, or authority, of the court. If the service itself is the basis for the court's jurisdiction over the defendant, then the service usually must be made within the state. For lower-level courts, service may have to be made within the county where the court is located. Trial courts of general jurisdiction usually permit service anywhere within the state. Service of process for an action in a federal district court may be made anywhere within the state where the court sits or, for some parties, anyplace in the United States that is not more than one hundred miles from the courthouse.

Who Must Be Served

Service of process is effective only if the right person is served.

Invalid Service

The tricks of serving process papers too often reach a point that the courts will not tolerate because they subvert the purpose of service or threaten to disrupt the administration of justice. The most intolerable abuse is called sewer service. It is not really service at all but is so named on the theory that the server tossed the papers into the sewer and did not attempt to deliver them to the proper party. Sewer service is a fraud on the court, and an attorney who knowingly participates in such a scheme can be disbarred.

Anyone who serves process must file an affidavit of service with the court, giving details of the delivery of the papers. If the facts in an affidavit of service falsely assert that the papers were delivered, the person who swears to them can be prosecuted for the crime of perjury. In addition, the plaintiff's action will not have commenced. If the statute of limitations has expired by the time the true facts of the improper service are disclosed, the action is completely barred and the plaintiff has lost the right to sue.

Service is also invalid if the defendant has been enticed into the jurisdiction by fraud. Courts have ruled that luring a potential defendant into the state in order to serve him with process when no other grounds exist to assert jurisdiction over him in that state violates the individual's right to due process of law. Service of process by fraud is null and void.

Immunity from Service of Process

Courts typically grant immunity from process to anyone who comes within reach of the authority of the court only because she is required to participate in judicial proceedings. The purpose of this immunity is to encourage the active participation by witnesses and parties that helps ensure fair trials. If a witness was discouraged from coming into a state because of the risk of being sued in that state, justice would not be served.

Immunity also protects nonresident attorneys, parties, and witnesses from being served with process in unrelated actions while attending, or traveling to, criminal or civil trials within a state. This immunity has been extended to protect out-of-state parties who enter a state not for trial but to settle a controversy out of court. Diplomatic personnel, ambassadors, and consuls who are in the United States on official business are also immune from process.

www.camerafraud.com

Process server fired over unserved tickets; 1,000 photo enforcement cases reviewed