Oregon Foreclosure Law
By admin | April 9, 2010
Oregon allows for both judicial and non-judicial foreclosures. Â Right of redemption is possible depending on the foreclosure process used. Â Generally it takes 180 days to foreclose, though this also varies depending on the foreclosure method.
Oregon uses both deeds of trust and mortgages with some foreclosure methods permitting deficiency judgments.  Both deeds of trust and mortgages in default can be foreclosed on though either a judicial foreclosure or a non-judicial process.
Right of redemption is provided (within 30 days) during judicial foreclosures and deficiency suits are prohibited in non-judicial foreclosures. Â They are permitted in other types of foreclosure.
Topics: Avoid Foreclosure | No Comments »
Washington Foreclosure Laws
By admin | April 9, 2010
Washington allows for both judicial and non-judicial foreclosures. Â Right of redemption is possible depending on the foreclosure process used. Â Generally it takes 120 days to foreclose, though this also varies depending on the foreclosure method.
Washington uses both deeds of trust and mortgages with some foreclosure methods permitting deficiency judgments.  Both deeds of trust and mortgages in default can be foreclosed on though either a judicial foreclosure or a non-judicial process.
Right of redemption is provided (within 8 days) during power of sale foreclosures and deficiency suits are prohibited in non-judicial foreclosures. Â They are permitted in judicial foreclosures unless the property has been abandoned at least 6 months prior to foreclosure.
Topics: Avoid Foreclosure | No Comments »
Alaska Foreclosure Laws
By admin | April 9, 2010
Alaska allows for both judicial and non-judicial foreclosures. Â Right of redemption is possible depending on the foreclosure process used. Â Generally it takes 90 days to foreclose, though this also varies depending on the foreclosure method.
Alaska uses both deeds of trust and mortgages with some foreclosure methods permitting deficiency judgments.  Both deeds of trust and mortgages in default can be foreclosed on though either a judicial foreclosure or a non-judicial process.
Right of redemption is provided during power of sale foreclosures and deficiency suits are prohibited.
Topics: Avoid Foreclosure | No Comments »
Alaska Foreclosure Process Server Laws
By admin | April 9, 2010
Rule 4. Process.
(a) Summons – Issuance. Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it to the plaintiff or the plaintiff’s attorney, who shall cause the summons and a copy of the complaint to be served in accordance with this rule. Upon request of the plaintiff separate or additional summonses shall issue against any defendants.(b) Summons – Form. The summons shall be signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address, and the time within which these rules require the defendant to appear and defend, and shall notify the defendant that in case of defendant’s failure to do so judgment by default will be rendered against the defendant for the relief demanded in the complaint.(c) Methods of Service – Appointments to Serve Process – Definition of Peace Officer.(1) Service of all process shall be made by a peace officer, by a person specially appointed by the Commissioner of Public Safety for that purpose or, where a rule so provides, by registered or certified mail.(2) A subpoena may be served as provided in Rule 45 without special appointment.(3) Special appointments for the service of all process relating to remedies for the seizure of persons or property pursuant to Rule 64 or for the service of process to enforce a judgment by writ of execution shall only be made by the Commissioner of Public Safety after a thorough investigation of each applicant, and such appointment may be made subject to such conditions as appear proper in the discretion of the Commissioner for the protection of the public. A person so appointed must secure the assistance of a peace officer for the completion of process in each case in which the person may encounter physical resistance or obstruction to the service of process.(4) Special appointments for the service of all process other than the process as provided under paragraph (3) of this subdivision shall be made freely when substantial savings in travel fees and costs will result.(5) The term “peace officer” as used in these rules shall include any officer of the state police, members of the police force of any incorporated city, village or borough, United States Marshals and their deputies, other officers whose duty is to enforce and preserve the public peace, and within the authority conferred upon them, persons specially appointed pursuant to paragraph (3) of this subdivision.(d) Summons – Personal Service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:(1) Individuals. Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally, or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.(2) Infants. Upon an infant, by delivering a copy of the summons and complaint to such infant personally, and also to the infant’s father, mother or guardian, or if there be none within the state, then to any person having the care or control of such infant, or with whom the infant resides, or in whose service the infant is employed; or if any service cannot be made upon any of them, then as provided by order of the court.(3) Incompetent Persons. Upon an incompetent person, by delivering a copy of the summons and complaint personally -[a] To the guardian of the person or a competent adult member of the person’s family with whom the person resides, or if the person is living in an institution, then to the director or chief executive officer of the institution, or if service cannot be made upon any of them, then as provided by order of the court; and[b] Unless the court otherwise orders, also to the incompetent.(4) Corporations. Upon a domestic or foreign corporation, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.(5) Partnerships. Upon a partnership, by delivering a copy of the summons and of the complaint personally to a member of such partnership, or to a managing or general agent of the partnership, or to any other agent authorized by appointment or by law to receive service of process, or to a person having control of the business of the partnership; or if service cannot be made upon any of them, then as provided by order of the court.(6) Unincorporated Associations. Upon an unincorporated association, by delivering a copy of the summons and the complaint personally to an officer, a managing or general agent, or to any other person authorized by appointment or by law to receive service of process; or if service cannot be made upon any of them, then as provided by order of the court.(7) State of Alaska. Upon the state, by sending a copy of the summons and the complaint by registered or certified mail to the Attorney General of Alaska, Juneau, Alaska, and[a] to the chief of the attorney general’s office in Anchorage, Alaska, when the matter is filed in the Third Judicial District; orto the chief of the attorney general’s office in Fairbanks, Alaska, when the matter is filed in the Fourth Judicial District.(8) Officer or Agency of State. Upon an officer or agency of the state, by serving the State of Alaska as provided in the preceding paragraph of this rule, and by delivering a copy of the summons and of the complaint to such officer or agency. If the agency is a corporation, the copies shall be delivered as provided in paragraph (4) of this subdivision of this rule.(9) Public Corporations. Upon a borough or incorporated city, town, school district, public utility district, or other public corporation in the state, by delivering a copy of the summons and of the complaint to the chief executive officer or chief clerk or secretary thereof.(10)00Unknown Parties. Upon unknown persons who may be made parties in accordance with statute and these rules, by publication as provided in subdivision (e) of this rule.(11)00Officer or Agency of State as Agent for Non-governmental Defendant. Whenever, pursuant to statute, an officer or an agency of the State of Alaska has been appointed as agent to receive service for a non-governmental defendant, or whenever, pursuant to statute, an officer or agency of the State of Alaska, has been deemed, considered or construed to be appointed as agent for a non-governmental defendant by virtue of some act, conduct or transaction of such defendant, service of process shall be made in the manner provided by statute.(12)00Personal Service Outside State. Upon a party outside the state in the same manner as if service were made within the state, except that service shall be made by a sheriff, constable, bailiff, peace officer or other officer having like authority in the jurisdiction where service is made, or by a person specifically appointed by the court to make service, or by service as provided in subsection (h) of this rule. In an action to enforce any lien upon or claim to, or to remove any encumbrance or lien or cloud upon the title to, real or personal property within the state, such service shall also be made upon the person or persons in possession or in charge of such property, if any. Proof of service shall be in accordance with (f) of this rule.(e) Other Service. When it shall appear by affidavit of a person having knowledge of the facts filed with the clerk that after diligent inquiry a party cannot be served with process under (d) of this rule, service may be made by publication or as otherwise directed by the court as provided in this subdivision. Service by publication will be allowed in adoption cases only if ordered by the court for compelling reasons.(1) Diligent Inquiry. Inquiry as to the absent party’s whereabouts shall be made by the party who seeks to have service made, or by the party’s attorney actually entrusted with the conduct of the action, or by the agent of the attorney. It shall be made of any person who the inquirer has reason to believe possesses knowledge or information as to the absent party’s residence or address or the matter inquired of. The inquiry shall be undertaken in person or by letter, and the inquirer shall state that an action has been or is about to be commenced against the party inquired for, that the object of the inquiry is to give such party notice of the action in order that such party may appear and defend it. When the inquiry is made by letter, postage shall be enclosed sufficient for the return of an answer. The affidavit of inquiry shall be made by the inquirer. It shall fully specify the inquiry made and of what persons and in what manner so that by the facts stated therein it may appear that diligent inquiry has been made for the purpose of effecting actual notice.(2) Service by Publication. A notice shall be published four times during four consecutive calendar weeks, once in each week, in a newspaper published in the district in which the action is pending, or if none be published therein, then in a newspaper published in this state circulating in such district. Prior to the last publication a copy of the notice and the complaint or the pleading shall be sent by registered or certified mail, with return receipt requested, with postage prepaid, to the absent party, addressed in care of such party’s residence or the place where such party usually receives mail, unless it shall appear by affidavit that such residence or place is unknown or cannot be ascertained after inquiry.(3) Other Service. In its discretion the court may allow service of process to be made upon an absent party in any other manner which is reasonably calculated to give the party actual notice of the proceedings and an opportunity to be heard, if an order permitting such service is entered before service of process is made.(4) Form and Contents of Notice – Time. The notice referred to in paragraph (2) of this subdivision shall be in the form of a summons. It shall state briefly the nature of the action, the relief demanded, and why the party to whom it is addressed is made a party to the action. Where the action concerns real property or where real property of a party has been attached, the notice shall set forth a legal description of the property, shall state the municipality or district in which it is located, and the street or road on which the property is situated, if the property is improved, it shall state the street number of the same. Where personal property of a party has been attached, the notice shall generally describe the property. If a mortgage is to be foreclosed, the notice shall state the names of all parties thereto and the dates that the mortgage was executed. The notice shall specify the time within which the absent party has to appear or answer or plead, which shall not be less than 20 days after personal service or, if service is made by publication, not less than 30 days after the last date of publication, and shall state the effect of a failure to appear or answer or plead. If the absent party does not appear or answer or plead within the time specified within the notice, the court may proceed as if such party had been served with process within the state.(5) Proof of Service. If service is made by publication, proof of publication shall be made by the affidavit of the newspaper’s publisher, printer, manager, foreman, or principal clerk, or by the certificate of the attorney for the party at whose instance the service was made, to which affidavit or certificate shall be attached a printed copy of the published notice with the name and the dates of the newspaper marked therein. Proof of mailing shall be made by affidavit of a deposit in a post office of the copies of the notice and the complaint or other pleadings.(f) Return. The person serving the process shall give proof of service thereof to the party requesting issuance of the process or to the party’s attorney promptly and in any event within the time during which the person served must respond to the process. Within 120 days after filing of the complaint, the party shall file and serve an affidavit identifying the parties who have been served, the date service was made and the parties who remain unserved. If service is made by a person other than a peace officer, the person shall make affidavit thereof, proof of service shall be in writing and shall set forth the manner, place, date of service, and all pleadings or other papers served with the process. Failure to make proof of service does not affect the validity of the service.(g) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the parties against whom the process issued.(h) Service of Process by Mail. In addition to other methods of service provided for by this rule, process may also be served within this state or the United States or any of its possessions by registered or certified mail, with return receipt requested, upon an individual other than an infant or an incompetent person and upon a corporation, partnership, and unincorporated association. In such case, copies of the summons and complaint or other process shall be mailed for restricted delivery only to the party to whom the summons or other process is directed or to the person authorized under federal regulation to receive the party’s restricted delivery mail. All receipts shall be so addressed that they are returned to the party serving the summons or process or the party’s attorney. Service of process by mail under this paragraph is complete when the return receipt is signed.(i) Service on Custody Investigator and Guardian Ad Litem. In all cases involving the custody or visitation of a minor in which a custody investigator or a guardian ad litem has been appointed, the parties shall serve the custody investigator and the guardian ad litem with all pleadings involving the care, custody, or control of the minor.(j) Summons – Time Limit for Service. The clerk shall review each pending case 120 days after filing of the complaint to determine whether all defendants have been served. If any defendant has not been served, the clerk shall send notice to the plaintiff to show good cause in writing why service on that defendant is not complete. If good cause is not shown within 30 days after distribution of the notice, the court shall dismiss without prejudice the action as to that defendant. The clerk may enter the dismissal if the plaintiff has not opposed dismissal. If the court finds good cause why service has not been made, the court shall establish a new deadline by which plaintiff must file proof of service or proof that plaintiff has made diligent efforts to serve
Note: In 1996, the legislature enacted AS 18.66.160, which relates to service of process in a proceeding to obtain a domestic violence protective order. According to § 77 ch. 64 SLA 1996, this statute has the effect of amending Civil Rule 4.Note: AS 10.06.580(b), as enacted by ch. 166, § 1, SLA 1988, amended Civil Rule 4 by allowing a corporation in an action brought under AS 10.06.580 to serve non-resident dissenting shareholders by certified mail and publication without satisfying the conditions under which certified mail and publication can be used under Civil Rule 4. AS 10.06.638, as enacted by ch. 166, § 1, SLA 1988, amended Civil Rule 4 by changing (1) the requirements for service by publication, and (2) how long a corporation has to respond to a complaint in an involuntary dissolution proceeding before the Commissioner of Commerce and Economic Development may take a default judgment against the corporation.Note: Section 132 of ch. 87 SLA 1997 adds AS 25.27.265(c) which authorizes the court to allow CSED to serve a party by mailing documents to the last known address on file with the agency. This is permitted only if the court finds that CSED has made diligent efforts to serve documents in the appropriate manner. According to § 153 of the Act, § 132 has the effect of amending Civil Rules 4 and 5 by allowing service at the opposing party’s last known address on file with the child support enforcement agency in certain circumstances.Rule 4(a). Summons; Issuance
When the complaint or any other pleading which requires service of a summons is filed, the clerk shall endorse thereon the day and hour on which it was filed and the number of the action, and shall forthwith issue a summons. The party filing the pleading may present a summons to the clerk for signature and seal. If in proper form, the clerk shall sign and seal the summons and issue it to the party for service or for delivery to a person authorized by Rule 4(d) to serve it. A summons, or a copy of the summons if addressed to multiple persons, shall be issued for each person to be served.
Rule 4(b). Summons; Form; Replacement Summons
The summons shall be signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the person to be served, state the name and address of the attorney, if any, for the party on whose behalf service is being made, and otherwise that party’s address. The summons shall state the time within which these Rules require the person being served to appear and defend, and shall notify that person that in case of a failure to do so judgment by default will be rendered against that person for the relief demanded in the pleading served. A summons, or a copy of the summons in the case of multiple persons to be served, shall be served together with a copy of the pleading to be served. If a summons is returned without being served, or if it has been lost, the clerk may upon request issue a replacement summons in the same form as the original. A replacement summons shall be issued and served within the time prescribed by Rule 4(i) of these Rules for service of the original summons. The summons shall state that “requests for reasonable accommodation for persons with disabilities must be made to the court by parties at least 3 working days in advance of a scheduled court proceeding.”
Rule 4(c). Summons; Parties Named Fictitiously; Return
When a pleading which requires service of a summons designates a party whose true name is unknown by a fictitious name pursuant to Rule 10(f) of these Rules, the summons may issue directed to the fictitious name employed for that purpose. The return of service of process upon a person designated therein by a fictitious name shall state the true name of the person or party upon whom it was served.
Rule 4(d). Process; By Whom Served
Service of process shall be by a sheriff, a sheriff’s deputy, a private process server registered with the clerk of the court pursuant to subpart (e) of this Rule, or any other person specially appointed by the court, except that a subpoena may be served as provided in Rule 45. Service of process may also be made by a party or that party’s attorney where expressly authorized by these Rules. A private process server or specially appointed person shall be not less than twenty-one (21) years of age and shall not be a party, an attorney, or the employee of an attorney in the action whose process is being served. Special appointments to serve process shall be requested by motion to the presiding Superior Court judge and the court’s ruling shall be recorded by minute entry. Special appointments shall be granted freely, are valid only for the cause specified in the motion, and do not constitute an appointment as a registered private process server.
Rule 4(e). State-wide Registration of Private Process Servers
A person who files with the clerk of the court an application approved by the Supreme Court, stating that the applicant has been a bona fide resident of the State of Arizona for at least one year immediately preceding the application and that the applicant will well and faithfully serve process in accordance with the law, and who otherwise complies with the procedures set forth by the Supreme Court in its Administrative Order regarding this subsection, shall, upon approval of the court or presiding judge thereof, in the County where the application is filed, be registered with the clerk as a private process server until such approval is withdrawn by the court in its discretion. The clerk shall maintain a register for this purpose. Such private process server shall be entitled to serve in such capacity for any court of the state anywhere within the State.
Rule 4(f). Service; Acceptance or Waiver; Voluntary Appearance
The person to whom a summons or other process is directed may accept service, or waive issuance or service thereof, in writing, signed by that person or by that person’s authorized agent or attorney, and the acceptance or waiver shall be filed in the action. A person upon whom service is required may, in person or by attorney or by an authorized agent, enter an appearance in open court, and the appearance shall be noted by the clerk upon the docket and entered in the minutes. Such waiver, acceptance or appearance shall have the same force and effect as if a summons had been issued and served. The filing of a pleading responsive to a pleading allowed under Rule 7(a) of these Rules shall constitute an appearance.
Rule 4(g). Return of Service
If service is not accepted or waived, then the person effecting service shall make proof thereof to the court. When the process is served by a sheriff or a sheriff’s deputy, the return shall be officially endorsed on or attached thereto and returned to the court promptly. If served by a person other than the sheriff or a deputy sheriff, return and proof of service shall be made promptly by affidavit thereof. Each such affidavit of a registered private process server shall include clear reference to the county where that private process server is registered. When the summons is served by publication, the return of the person making such service shall be made in the manner specified in Rules 4.1(n) and 4.2(e) of these Rules. Proof of service in a place not within any judicial district of the United States shall, if effected under paragraph (1) of Rule 4.2(h), be made pursuant to the applicable treaty or convention; and shall, if effected under paragraph (2) or (3) thereof, include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court. In any event the return shall be made within the time during which the person served must respond to process. Failure to make proof of service does not affect the validity thereof.
Rule 4(h). Amendment of Process or Amendment of Proof of Service
At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.
Rule 4(i). Summons; Time Limit for Service
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. This subdivision does not apply to service in a foreign country pursuant to Rule 4.2(h), (i), (j) and (k) of these rules.
Topics: Process Service | No Comments »
Delaware Foreclosure Process Server Laws
By admin | April 9, 2010
ProcedureCHAPTER 31. PROCESS; COMMENCEMENT OF ACTIONS§ 3101. Date and return of writs commencing actions.
Every writ used for the commencement of an action shall bear date on the day it was issued and shall be returnable on the day fixed by the rules of the court issuing the writ, or, if there be no such rule, on the day fixed by statute. (Code 1852, § 2237; Code 1915, § 4085; Code 1935, § 4576; 10 Del. C. 1953, § 3101.)
§ 3102. Payment of costs by nonresidents for issuance or execution of writs.
No Prothonotary, Register in Chancery, clerk of any court, or justice of the peace in this State shall be compelled to issue any writ or other original process in a civil action, or any writ of execution on any judgment, in favor of any person not a resident of this State, unless the costs of the issuing of such writ are first paid or tendered to such officer; nor shall any sheriff, coroner, or constable be compelled to execute any such writ until the legal fees for such services are first paid or tendered to such officer by the plaintiff in such action, his attorney or agent; any law, custom or usage of this State to the contrary notwithstanding. (12 Del. Laws, c. 266; Code 1915, § 4086; Code 1935, § 4577; 10 Del. C. 1953, § 3102.)
§ 3103. Service and return of summons.
(a) A writ of summons may be served on the defendant in the manner prescribed by any rule of court, or by stating the substance of it to the defendant personally, or by leaving a copy of it at the defendant’s usual place of abode, in the presence of some adult person, 6 days before the return thereof.
(b) The officer serving a summons shall state the officer’s return the time and manner of service.
(c) No service of summons upon the State, or upon any administrative office, agency, department, board or commission of the state government, or upon any officer of the state government concerning any matter arising in connection with the exercise of his or her official powers or duties, shall be complete until such service is made upon the person of the Attorney General or upon the person of the State Solicitor or upon the person of the Chief Deputy Attorney General. (Code 1852, §§ 2238, 2239; Code 1915, § 4087; Code 1935, § 4578; 10 Del. C. 1953, § 3103; 59 Del. Laws, c. 159, § 1; 70 Del. Laws, c. 186, § 1.)
§ 3104. Personal jurisdiction by acts of nonresidents.
(a) The term “person” in this section includes any natural person, association, partnership or corporation.
(b) The following acts constitute legal presence within the State. Any person who commits any of the acts hereinafter enumerated thereby submits to the jurisdiction of the Delaware courts and is deemed thereby to have appointed and constituted the Secretary of State of this State the person’s agent for the acceptance of legal process in any civil action against such nonresident person arising from the following enumerated acts. The acceptance shall be an acknowledgement of the agreement of such nonresident that any process when so served shall have the same legal force and validity as if served upon such nonresident personally within the State, and that such appointment of the Secretary of State shall be irrevocable and binding upon the personal representative.
(c) As to a cause of action brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or a personal representative, who in person or through an agent:
(1) Transacts any business or performs any character of work or service in the State;
(2) Contracts to supply services or things in this State;
(3) Causes tortious injury in the State by an act or omission in this State;
(4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State;
(5) Has an interest in, uses or possesses real property in the State; or
(6) Contracts to insure or act as surety for, or on, any person, property, risk, contract, obligation or agreement located, executed or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing.
(d) Service of the legal process provided for in this section with the fee of $2 shall be made upon the Secretary of State of this State in the same manner as is provided by law for service of writs of summons, and when so made shall be as effectual to all intents and purposes as if made personally upon the defendant within this State; provided, that not later than 7 days following the filing of the return of services of process in the court in which the civil action is commenced or following the filing with the court of the proof of the nonreceipt of notice provided for in subsection (g) of this section, the plaintiff or a person acting in the plaintiff’s behalf shall send by registered mail to the nonresident defendant, or to the defendant’s executor or administrator, a notice consisting of a copy of the process and complaint served upon the Secretary of State and the statement that service of the original of such process has been made upon the Secretary of State of this State, and that under this section such service is as effectual to all intents and purposes as if it had been made upon such nonresident personally within this State.
(e) Proof of the defendant’s nonresidence and of the mailing and receipt or refusal of the notice shall be made in such manner as the court, by rule or otherwise, shall direct.
(f) The return receipt or other official proof of delivery shall constitute presumptive evidence that the notice mailed was received by the defendant or the defendant’s agent; and the notation of refusal shall constitute presumptive evidence that the refusal was by the defendant or the defendant’s agent.
(g) The plaintiff or the plaintiff’s counsel of record in the action may within 7 days following the return of any undelivered notice mailed in accordance with subsection (d) of this section other than a notice, delivery of which is shown by the notation of the postal authorities on the original envelope to have been refused by the defendant or the defendant’s agent, file with the court in which the civil action is commenced proof of the nonreceipt of the notice by the defendant or the defendant’s agent, which proof shall consist of the usual receipt given by the post office at the time of mailing to the person mailing the registered article containing the notice, the original envelope of the undelivered registered article and an affidavit made by or on behalf of plaintiff specifying:
(1) The date upon which the envelope containing the notice was mailed by registered mail;
(2) The date upon which the envelope containing the notice was returned to the sender;
(3) That the notice provided for in subsection (d) of this section was contained in the envelope at the time it was mailed; and
(4) That the receipt, obtained at the time of mailing by the person mailing the envelope containing the notice, is the receipt filed with the affidavit.
(h) The time in which defendant shall serve an answer shall be computed from the date of the mailing of the registered letter which is the subject of the return receipt or other official proof of delivery or the notation of refusal of delivery; provided, however, that the court in which the action is pending may, at any time before or after the expiration of the prescribed time for answering, order such continuances as may be necessary to afford the defendant therein reasonable opportunity to defend the action.
(i) Nothing herein contained limits or effects the rights to serve process in any other manner now or hereafter provided by law. This section is an extension of and not a limitation upon the rights otherwise existing of service of legal process upon nonresidents.
(j) When jurisdiction over a person is based solely upon this section, only a cause of action arising from any act enumerated in this section may be asserted against the person.
(k) This section does not invalidate any other section of the Code that provides for service of summons on nonresidents. This section applies only to the extent that the other statutes that already grant personal jurisdiction over nonresidents do not cover any of the acts enumerated in this section.
(l) In any cause of action arising from any of the acts enumerated in this section, the court may provide for a stay or dismissal of action if the court finds, in the interest of justice, that the action should be heard in another forum. (11 Del. Laws, c. 192; Code 1915, § 4088; Code 1935, § 4579; 10 Del. C. 1953, § 3104; 61 Del. Laws, c. 471, § 1; 64 Del. Laws, c. 52, § 1; 70 Del. Laws, c. 186, § 1.)
§ 3105. Service and return of scire facias.
In every case in which a writ of scire facias may by law be issued, it shall be served and returned in the same manner as is provided in case of an original summons. (Code 1852, § 2241(a); Code 1915, § 4090; Code 1935, § 4581; 10 Del. C. 1953, § 3105.)
§ 3106. Service of capias ad respondendum.
A writ of capias ad respondendum is served by arresting the defendant, but the defendant shall be discharged upon giving sufficient bail. (Code 1852, § 2242; Code 1915, § 4091; Code 1935, § 4582; 10 Del. C. 1953, § 3106; 70 Del. Laws, c. 186, § 1.)
§ 3107. Arrest of nonresident on mesne process in suit by nonresident.
It shall not be lawful, at the suit of any nonresident, to arrest and hold to bail on mesne process any person who is a nonresident of this State at the time of issuing such process against such person, for any debt contracted without the limits of this State. If any such nonresident is so arrested, he or she may apply by petition in writing to any judge of this State, setting forth his or her residence and the state in which the debt was contracted, and the judge, on the production of satisfactory proof that the plaintiff was a nonresident at the time of issuing the process, and also that the petitioner is a nonresident of this State, and that the debt on which the petitioner was arrested was not contracted in this State, shall discharge the petitioner from custody. This section shall not be construed as affecting in any degree the law of attachment. (12 Del. Laws, c. 211; Code 1915, § 4092; Code 1935, § 4583; 10 Del. C. 1953, § 3107; 70 Del. Laws, c. 186, § 1.)
§ 3108. Prerequisites for issuance of capias ad respondendum.
(a) No writ of capias ad respondendum shall be issued against any citizen of this State, in any civil action, unless the plaintiff therein, or if there be more than one, some one or more of the plaintiffs, has made a written affidavit, and filed the same in the office of the Prothonotary of the Superior Court of the county out of which the writ is to issue, stating that, to the best of his or her belief, the defendant has absconded, or is about to abscond from the place of the defendant’s usual abode; or that the defendant is justly indebted to the plaintiff, in a sum exceeding $50, and that he or she verily believes the defendant has secreted, conveyed away, assigned, settled or disposed of, either money, goods, chattels, stock, securities for money, or other personal estate or real estate of the value of more than $100, with intent to defraud his or her creditors, and shall, moreover, in such affidavit, specify and set forth the supposed fraudulent transactions. This section shall not apply where the action is for libel, slander or injury to the person or property, accompanied by violence, if any affidavit of the cause of action is filed with the praecipe.
(b) The Superior Court, upon the petition of any person arrested and upon reasonable notice in writing to the party in whose favor the process issued, or such party’s attorney or agent, shall investigate the allegations contained in any affidavit made and filed under this section, that the defendant has absconded or is about to abscond from the place of his or her usual abode, and the allegations and specifications of fraud contained in such affidavit. If, upon such investigation, the Court or Judge considers that there was not or is not sufficient cause for the arrest, the person arrested shall be discharged, and the plaintiff shall pay the costs. The Court or Judge may make and enforce all necessary and proper orders in the premises. (15 Del. Laws, c. 180; 16 Del. Laws, c. 530; Code 1915, § 4093; Code 1935, § 4584; 10 Del. C. 1953, § 3108; 70 Del. Laws, c. 186, § 1.)
§ 3109. Amicable actions.
Any persons willing to become parties to an amicable action may enter into an agreement in writing for that purpose, either personally or by their agents or attorneys. On filing such agreement with the Prothonotary, the Prothonotary shall docket the action in the Superior Court, and from the time of such entry the action shall be deemed to be depending in the same manner as if the defendant had appeared to a summons issued against him or her by the plaintiff. (Code 1852, § 2243; Code 1915, § 4094; Code 1935, § 4585; 10 Del. C. 1953, § 3109; 70 Del. Laws, c. 186, § 1.)
§ 3110. Commencement of actions by attachment.
Actions may be begun by attachment as provided in Chapter 35 of this title. (Code 1915, § 4097; Code 1935, § 4588; 10 Del. C. 1953, § 3110.)
§ 3111. Actions against corporations; service of process.
(a) Actions may be brought against any corporation, at law or in chancery, by summons. Process may be served on the president, or head officer, if residing in the State, and if not, on any officer, director, or manager of the corporation. When a cause of action arises in this State against any corporation incorporated outside of this State, and there is no president or head officer of such corporation or any officer, director or manager thereof resident in this State, nor any certified agent thereof, for the service of process, resident in this State, process against such corporation may be served upon any agent of such corporation then being in the State. If such corporation appears, the action shall proceed as in other cases, and if it fails to appear, the plaintiff shall have judgment by default, service of the process being first proved. In an action upon the note of a bank, payable at one of its branches, service of process upon the president or cashier of that branch shall be sufficient. Copies of any rules of court, notice, proceeding, or order, may be served in the same way as original process or upon the attorney of record.
(b) In any action against a corporation whose officers reside out of the State, process may be served by publishing the substance thereof in a newspaper of this State, and of the state where the head officer resides, 20 days before the return thereof, and such service shall be sufficient.
(c) In respect to such corporation, 10 days notice of any motion, rule, order, or other matter or proceeding is sufficient. Such notice may be served personally on the president, any director or manager, or on the attorney of the corporation, or by copy of the rule or other matter sent by mail to the president or head officer at his or her usual place of abode, or by publishing the same in a newspaper near thereto.
(d) Service upon corporations may also be made as provided by § 321 of Title 8. (Code 1852, §§ 1246-1248; 21 Del. Laws, c. 273, § 43; 22 Del. Laws, c. 166, § 2; Code 1915, § 4098; 29 Del. Laws, c. 257; Code 1935, § 4589; 10 Del. C. 1953, § 3111; 70 Del. Laws, c. 186, § 1.)
§ 3112. Service of process on nonresident operators of motor vehicles.
(a) Any nonresident owner, operator or driver of any motor vehicle, who accepts the privilege extended by law to nonresidents of this State to operate or drive such motor vehicles on the public streets, roads, turnpikes or highways of this State by operating or driving such motor vehicle or by having the same operated or driven on any public street, road, turnpike or highway of this State shall by such acceptance of the privilege be deemed thereby to have appointed and constituted the Secretary of State of this State, as such nonresident owner’s agent for the acceptance of legal process in any civil action against such nonresident owner, operator or driver arising or growing out of any accident or collision occurring within this State in which such motor vehicle is involved. The acceptance shall be a signification of the agreement of such nonresident that any such process when so served shall be of the same legal force and validity as if served upon such nonresident personally within this State, and that such appointment of the Secretary of State shall be irrevocable and binding upon his or her executor or administrator. Where such nonresident has died prior to the commencement of an action, or where an action has been duly commenced under the provisions of this section by service upon a nonresident who dies thereafter, service of process, and of a writ of scire facias where required, shall be made on the executor or administrator of such nonresident, and upon his successors, in the same manner and on the same notice as is provided in the case of the nonresident.
(b) Service of the legal process provided for in this section with the fee of $2, shall be made upon the Secretary of State of this State in the same manner as is provided by law for service of writs of summons, and when so made shall be as effectual to all intents and purposes as if made personally upon the defendant within this State; provided, that not later than 7 days following the filing of the return of services of process in the court in which the civil action is commenced or following the filing with the court of the proof of the nonreceipt of notice provided for in subsection (e) of this section, the plaintiff or a person acting on the plaintiff’s behalf shall send by registered mail to the nonresident defendant, or to the defendant’s executor or administrator, a notice consisting of a copy of the process and complaint served upon the Secretary of State and the statement that service of the original of such process has been made upon the Secretary of State of this State, and that under the provisions of this section such service is as effectual to all intents and purposes as if it had been made upon such nonresident personally within this State.
(c) Proof of the defendant’s nonresidence and of the mailing and receipt or refusal of the notice shall be made in such manner as the court, by rule or otherwise, shall direct.
(d) The return receipt or other official proof of delivery shall constitute presumptive evidence that the notice mailed was received by the defendant or the defendant’s agent; and the notation of refusal shall constitute presumptive evidence that the refusal was by the defendant or the defendant’s agent.
(e) The plaintiff or the plaintiff’s counsel of record in the action may within 7 days following the return of any undelivered notice mailed in accordance with the provisions of subsection (b) of this section other than a notice, delivery of which is shown by the notation of the postal authorities on the original envelope to have been refused by the defendant or the defendant’s agent, file with the court in which the civil action is commenced proof of the nonreceipt of the notice by the defendant or the defendant’s agent, which proof shall consist of the usual receipt given by the post office at the time of mailing to the person mailing the registered article containing the notice, the original envelope of the undelivered registered article, and an affidavit made by or on behalf of plaintiff specifying (1) the date upon which the envelope containing the notice was mailed by registered mail, (2) the date upon which the envelope containing the notice was returned to the sender, (3) that the notice provided for in subsection (b) of this section was contained in the envelope at the time it was mailed, and (4) that the receipt, obtained at the time of mailing by the person mailing the envelope containing the notice, is the receipt filed with the affidavit.
(f) The time in which defendant shall serve his or her answer shall be computed from the date of the mailing of the registered letter which is the subject of the return receipt or other official proof of delivery or the notation of refusal of delivery; provided, however, that the court in which the action is pending may, at any time before or after the expiration of the prescribed time for answering, order such continuances as may be necessary to afford the defendant therein reasonable opportunity to defend the action.
(g) This section is an extension of and not a limitation upon the right otherwise existing of service of legal process, by foreign attachment and otherwise, upon nonresidents or their property in this State.
(h) In any civil action against a nonresident owner, operator or driver of a motor vehicle pending on the effective date of this section in which it appears to the satisfaction of the court in which the action is pending that service of process has not been attempted or has not been perfected because of the unconstitutionality or a question of the constitutionality of the procedure provided by statute for such service of process, the court upon the application of plaintiff or the plaintiff’s attorney made within 60 days following the effective date of this section may permit service of process to be made in accordance with the provisions of this section if the plaintiff or the plaintiff’s attorney files with the court within 10 days following the granting of such permission a written application for the issuance of process; provided that such actions shall be deemed to have been commenced upon the date of the filing of the complaint. (35 Del. Laws, c. 225, §§ 1-3; Code 1935, § 4590; 10 Del. C. 1953, § 3112; 50 Del. Laws, c. 333, § 1; 51 Del. Laws, c. 341, §§ 1, 2; 52 Del. Laws, c. 331; 54 Del. Laws, c. 243, § 1; 70 Del. Laws, c. 186, § 1.)
§ 3113. Service of process on resident owner and operator of motor vehicles who depart from the State after an accident.
Section 3112 of this title shall also apply to a resident who departs from the State subsequent to the accident or collision and remains absent therefrom for 30 days continuously, whether such absence is intended to be temporary or permanent, and to any executor or administrator of such resident. (10 Del. C. 1953, § 3113; 54 Del. Laws, c. 249.)
§ 3114. Service of process on nonresident directors, trustees or members of the governing body of Delaware corporations.
(a) Every nonresident of this State who after September 1, 1977, accepts election or appointment as a director, trustee or member of the governing body of a corporation organized under the laws of this State or who after June 30, 1978, serves in such capacity and every resident of this State who so accepts election or appointment or serves in such capacity and thereafter removes residence from this State shall, by such acceptance or by such service, be deemed thereby to have consented to the appointment of the registered agent of such corporation (or, if there is none, the Secretary of State) as an agent upon whom service of process may be made in all civil actions or proceedings brought in this State, by or on behalf of, or against such corporation, in which such director, trustee or member is a necessary or proper party, or in any action or proceeding against such director, trustee or member for violation of a duty in such capacity, whether or not the person continues to serve as such director, trustee or member at the time suit is commenced. Such acceptance or service as such director, trustee or member shall be a signification of the consent of such director, trustee or member that any process when so served shall be of the same legal force and validity as if served upon such director, trustee or member within this State and such appointment of the registered agent (or, if there is none, the Secretary of State) shall be irrevocable.
(b) Service of process shall be effected by serving the registered agent (or, if there is none, the Secretary of State) with 1 copy of such process in the manner provided by law for service of writs of summons. In addition, the Prothonotary or the Register in Chancery of the court in which the civil action or proceeding is pending shall, within 7 days of such service, deposit in the United States mails, by registered mail, postage prepaid, true and attested copies of the process, together with a statement that service is being made pursuant to this section, addressed to such director, trustee or member at the corporation’s principal place of business and at the residence address as the same appears on the records of the Secretary of State, or, if no such residence address appears, at the address last known to the party desiring to make such service.
(c) In any action in which any such director, trustee or member has been served with process as hereinabove provided, the time in which a defendant shall be required to appear and file a responsive pleading shall be computed from the date of mailing by the Prothonotary or the Register in Chancery as provided in subsection (b) of this section; however, the court in which such action has been commenced may order such continuance or continuances as may be necessary to afford such director, trustee or member reasonable opportunity to defend the action.
(d) Nothing herein contained limits or affects the right to serve process in any other manner now or hereafter provided by law. This section is an extension of and not a limitation upon the right otherwise existing of service of legal process upon nonresidents.
(e) The Court of Chancery and the Superior Court may make all necessary rules respecting the form of process, the manner of issuance and return thereof and such other rules which may be necessary to implement this section and are not inconsistent with this section. (61 Del. Laws, c. 119, § 1; 70 Del. Laws, c. 186, § 1.)
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Idaho Foreclosure Process Server Laws
By admin | April 9, 2010
Rule 4(a). Process – Summons – Issuance – Timelimits.(1) Summons. At the request of the plaintiff, the clerk of thedistrict court shall forthwith issue a summons and deliver it forservice as provided by Rule 4(c). Upon request of the plaintiffseparate or additional summons shall issue against any defendant.
(2) Time Limit for Service. If a service of the summons andcomplaint is not made upon a defendant within six (6) months afterthe filing of the complaint and the party on whose behalf suchservice was required cannot show good cause why such service wasnot made within that period, the action shall be dismissed as tothat defendant without prejudice upon the court’s own initiativewith 14 days notice to such party or upon motion. [Amended June 15,1987, effective November 1, 1987; amended February 10, 1993,effective July 1, 1993; amended April 19, 1995, effective July 1,1995.]
Rule 4(b). Summons – Form.The summons shall be signed by the clerk of the district court, be underthe seal of the court, contain the name of the court, the assigned number ofthe case, the names of the parties, the county in which the action isbrought, and state the name and address of the plaintiff’s attorney,if any, otherwise, the plaintiff’s address.
(1) Eviction Proceedings. – In an action exclusively for evictionwhere an expedited proceeding is contemplated under I.C. Section 6-310the summons shall be in substantially the following form:
ATTORNEY’S NAMEFIRM NAMESTREET ADDRESSMAILING ADDRESSCITY, STATE & ZIP CODETELEPHONE NUMBERAttorney(s) for Plaintiff(s)
IN THE DISTRICT COURT OF THE ________ JUDICIAL DISTRICT OF THESTATE OF IDAHO, IN AND FOR THE COUNTY OF ________)Plaintiff(s), ) Case No. ________)vs. ) SUMMONS FOR EVICTION) PURSUANT) TO IDAHO CODE Section 6-310Defendant(s). ) (Expedited Proceedings)________________________________ )
TO THE ABOVE NAMED DEFENDANTS(S): YOU HAVE BEEN SUED BY THE ABOVENAMED PLAINTIFF(S).
A trial will be held on ________, 19____, at ________ o’clock _ .m.at (location) to determine if you should be evictedfrom the premises described in the Complaint which is served withthis Summons. If the Court grants the request to evict you, it mayalso order you to pay costs of this proceeding. If you wish to seekthe advice of or representation by an attorney in this matter, youshould do so promptly, to allow adequate time for trial preparation.This Summons and the Complaint shall be served upon the Defendant(s)not less than five (5) days [computed pursuant to IRCP Rule 6(a)]prior to the date of the hearing.
CLERK OF THE DISTRICT COURT
DATED: ______________ By ________________________________Deputy Clerk
(2) Other Civil Proceedings. – In other civil proceedings thesummons shall contain the time within which these rules require thedefendant to file a written response or written motion in defenseto the complaint, and shall notify the defendant that in case ofthe defendant’s failure to do so judgment by default will berendered against the defendant for the relief demanded in thecomplaint. The summons shall be in substantially the followingform:
ATTORNEY’S NAMEFIRM NAMESTREET ADDRESSMAILING ADDRESSCITY, STATE & ZIP CODETELEPHONE NUMBERAttorney(s) for Plaintiff(s)
IN THE DISTRICT COURT OF THE ________ JUDICIAL DISTRICT OF THESTATE OF IDAHO, IN AND FOR THE COUNTY OF ________)Plaintiff(s), ) Case No. ________)vs. ) SUMMONS)Defendant(s). )________________________________ )
NOTICE: YOU HAVE BEEN SUED BY THE ABOVE-NAMED PLAINTIFF(S): THECOURT MAY ENTER JUDGMENT AGAINST YOU WITHOUT FURTHER NOTICE UNLESSYOU RESPOND WITHIN 20 DAYS. READ THE INFORMATION BELOW.
TO: ________________________________________________
You are hereby notified that in order to defend this lawsuit, anappropriate written response must be filed with the abovedesignated court within 20 days after service of this Summons onyou. If you fail to so respond the court may enter judgment againstyou as demanded by the plaintiff(s) in the Complaint.
A copy of the Complaint is served with this Summons. If you wish toseek the advice of or representation by an attorney in this matter,you should do so promptly so that your written response, if any,may be filed in time and other legal rights protected.
An appropriate written response requires compliance with Rule10(a)(1) and other Idaho Rules of Civil Procedure and shall alsoinclude:
1. The title and number of this case.2. If your response is an Answer to the Complaint, it must containadmissions or denials of the separate allegations of the Complaintand other defenses you may claim.3. Your signature, mailing address and telephone number, or thesignature, mailing address and telephone number of your attorney.4. Proof of mailing or delivery of a copy of your response toplaintiff ‘s attorney, as designated above.To determine whether you must pay a filing fee with your response,contact the Clerk of the above-named court.
DATED this ________ day of ____________, 19 ____.
CLERK OF THE DISTRICT COURT
By ________________________________Deputy Clerk
(Adopted February 2, 1993, effective July 1, 1993; amended February 26, 1997,effective July 1, 1997.)
(3) Publication.- – -Where service is to be made by publication, theSummons to be published shall be substantially as follows:
SUMMONSTo: [ Defendant’s Name]You have been sued by [Plaintiff’s Name], the Plaintiff, in theDistrict Court in and for [Name of County] County, Idaho, Case No.[Case No.].The nature of the claim against you is [nature of claim].Any time after 20 days following the last publication of this summons,the court may enter a judgment against you without further notice, unlessprior to that time you have filed a written response in the proper form,including the Case No., and paid any required filing fee to the Clerk ofthe Court at [address and telephone number of the clerk] and served a copyof your response on the Plaintiff’s attorney at [name, address, and phonenumber of Plaintiff’s attorney].A copy of the Summons and Complaint can be obtained by contactingeither the Clerk of the Court or the attorney for Plaintiff. If you wishlegal assistance, you should immediately retain an attorney to advise youin this matter.
Dated: __________________
[Name of County] County District CourtBy __________________, Deputy Clerk
(Amended March 9, 1999, effective July 1, 1999.)
Rule 4(c)(1). By whom served.Service of all process shall be made by an officer authorized bylaw to serve process, or by some person over the age of eighteen(18), not a party to the action. A subpoena may be served asprovided in Rule 45.
Rule 4(c)(2). Executing process.The officer or other person executing process need not have in hisor her possession the original process, summons, writ, order orsubpoena at the time of service of the document.(Adopted March 23, 1990, effective July 1, 1990.)
Rule 4(c)(3). Service of facsimile or telegraphic copy.Any summons, writ, order or other paper requiring service may betransmitted by facsimile machine process or telegraph and the copytransmitted may be served or executed by the officer or person towhom sent, and returned in the same manner, and with the sameforce, effect, authority and liability as the original. Theoriginal must be filed in the court from which issued.(Amended November 15, 1989, effective January 1, 1990.)
Rule 4(d)(1). Summons – Personal service.A copy of the complaint shall be served with the summons, exceptwhen the service is by publication as provided in Rule 4(e). Theplaintiff shall furnish the person making service with such copiesas are necessary. Service shall be made as follows:
Rule 4(d)(2). Service upon individuals.Upon an individual other than those specified in subdivision (3) ofthis rule, by delivering a copy of the summons and of the complaintto the individual personally or by leaving copies thereof at theindividual’s dwelling house or usual place of abode with someperson over the age of eighteen (18) years then residing therein orby delivering a copy of the summons and of the complaint to anagent authorized by appointment or by law to receive service ofprocess.
Rule 4(d)(3). Service upon infants and incompetents.Upon a minor less than fourteen (14) years of age, service shall beupon the guardian if one (1) has been appointed, and if there isnone then upon either the father or mother, and if neitherguardian, father or mother be found within the state then upon anyperson having the care and custody of such minor, and unless thecourt otherwise orders, also upon the minor, said service to be inthe manner set forth in subdivision (2) of this rule. Upon anincompetent person who has been judicially declared to be ofunsound mind or incapable of conducting the incompetent person’sown affairs, service shall be had upon the guardian if one (1) hasbeen appointed in this state, or if there is none by service upon acompetent adult member of the family with whom the incompetentperson resides, or if the incompetent person is living in aninstitution then upon the chief executive officer of theinstitution, or if service cannot be had upon any of them, then asprovided by order of the court, and unless the court otherwiseorders, also upon the incompetent. If any of the parties upon whomservice is directed to be made is a plaintiff, then service shallbe upon such other person as the court may designate.
Rule 4(d)(4). Service upon domestic or foreign corporations.(A) Upon a domestic or foreign corporation by delivering a copy ofthe summons and complaint to an officer, managing or general agent,or to any other agent authorized by appointment or by statute ofthis state to receive service of process, and upon a partnership orother unincorporated association which is subject to suit under acommon name, by delivering a copy of the summons and the complaintto an officer or the managing or general agent of the partnershipor association, or to any other agent authorized by appointment orby statute of this state to receive service of process. If serviceis upon a statutory agent, any statutory requirement as to thenumber of copies of summons and complaint to be served shall befollowed, and if such agent is a state official such service may bemade by registered or certified mail, and also, if the statute sorequires, by mailing a copy to the defendant.
(B) Whenever any foreign corporation which has qualified in thestate by filing with the Secretary of State or a domesticcorporation or association shall not have designated a personactually residing in the state upon whom service of process can bemade, or whenever such agent of a corporation shall resign, beremoved from office, or shall have died or shall have moved fromthe state, or if after due diligence neither the designated agentof the corporation nor any officer or managing agent of thecorporation can be found within the state, then service of anysummons and complaint against the corporation may be made by theparty serving the same by mailing copies of the summons andcomplaint by registered or certified mail to the corporationaddressed to its registered place of business and to the presidentor secretary of the corporation at the addresses shown on the mostcurrent annual statement filed with the Secretary of State. Serviceshall be complete upon such mailing by certified or registeredmail. The party or attorney serving the corporation under thisparagraph shall make a return certificate indicating compliancewith the provision of this rule and attaching a receipt of themailing.(Amended effective July 1, 1977; amended April 11, 1979, effectiveMay 1, 1979.)
Rule 4(d)(5). Service upon state, agencies or governmentalsubdivisions.Upon the state of Idaho, or any agency thereof, service shall bemade by delivering two (2) copies of the summons and complaint tothe attorney general or any assistant attorney general. Upon anyother governmental subdivision, municipal corporation, or quasi-municipal corporation or public board service shall be made bydelivering a copy of the summons and complaint to the chiefexecutive officer or the secretary or clerk thereof. In all actionsbrought under specific statutes requiring service to be made uponspecific individuals or officials, service shall be made pursuantto the statute in addition to service as provided above.(Amended effective July 1, 1977.)
Rule 4(d)(6). Receipt of service.In lieu of service upon an individual as provided above in thisrule, service may be accomplished by an acknowledged writtenadmission by the individual that the individual has receivedservice of process, stating the capacity in which such service ofprocess was received.
Rule 4(e)(1). Summons – Other service.Whenever a statute of this state provides for service of a summons,or of a notice, or of an order in lieu of summons, upon a party notan inhabitant of, or found within the state, or upon unknownpersons, service shall be made under the circumstances and in themanner prescribed by the statute. Personal service outside of thestate, when authorized by statute, shall be as provided by Rule4(d). Whenever the summons, notice or order is served bypublication it shall contain in general terms a statement of thenature of the grounds of the claim, and copies of the summons andcomplaint shall be mailed to the last known address most likely togive notice to the party.
Rule 4(e)(2). Service – Completion.Personal service within or without the state is complete on thedate of delivery; service by publication is complete upon the dateof the last publication.
Rule 4(f). Territorial limits of effective service.All process, other than a subpoena, may be served anywhere withinterritorial limits of the state and, when a statute or rule soprovides, beyond the territorial limits of the state. A subpoenamay be served as provided in rule 45.
Rule 4(g). Return.Proof of service of process shall be in writing specifying themanner of service, the date and place of service and unless theparty served files an appearance the return must be filed with thecourt:
(1) If service is made by a sheriff or deputy sheriff, or anypeace officer or court marshall, anywhere within the state ofIdaho, then by certificate of the officer indicating service asrequired by these rules.
(2) If service is by any person other than those specified in (1)above, then by affidavit of such person indicating the person isover the age of 18 years and service as required by these rules.
(3) If service is by mailing, not requiring proof of receipt, thenby affidavit of mailing by a person over the age of 18 years whomailed such service indicating the documents mailed and the dateand address to which they were mailed.
(4) If service is by certified or registered mail, then byaffidavit of a person over the age of 18 years who mailed suchprocess together with postal receipts indicating whether the personreceived the service of process by mail.
(5) If service is by publication, then by affidavit of thepublisher of the newspaper, or the publisher’s designated agentover the age of 18 years, stating the dates of publication andattaching a true copy of the publication.
(6) In lieu of any of the above, the party’s acknowledged writtenadmission that service of process was received, as provided by rule4(d)(6).
(7) The return of service shall list and identify all documentsserved.(Amended effective July 1, 1977; amended March 23, 1990, effectiveJuly 1, 1990; amended August 22, 1990, effective August 22, 1990.)
Rule 4(h). Amendment.At any time in its discretion and upon such terms as it deems just,the court may allow any process or proof of service thereof to beamended, unless it clearly appears that material prejudice wouldresult to the substantial right [rights] of the party against whomthe process issued.
Rule 4(i). Voluntary appearance.The voluntary appearance of a party or service of any pleading bythe party, except as provided herein, constitutes voluntarysubmission to the personal jurisdiction of the court. A motionunder Rule 12(b)(2), (4) or (5), whether raised before or afterjudgment, does not constitute a voluntary appearance by a partyunder this rule. The joinder of other defenses in a motion underRules 12(b)(2), (4) or (5) does not constitute a voluntaryappearance by the party under this rule. If, after a motion underRules 12(b)(2), (4), or (5) is denied, the party pleads further anddefends the action, such further appearance and defense of theaction will not constitute a voluntary appearance under this rule.(Amended March 31, 1978, effective July 1, 1978; amended April 11,1979, effective May 1, 1979; amended March 30, 1984, effective July1, 1984; amended June 15, 1987, effective November 1, 1987; amendedApril 19, 1995, effective July 1, 1995.)
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Indiana Foreclosure Process Server Laws
By admin | April 9, 2010
Rule 4. Process(A) Jurisdiction Over Parties or Persons – In General.The court acquires jurisdiction over a party or person who under these rules commences or joins in the action, is served with summons or enters an appearance, or who is subjected to the power of the court under any other law.(B) Preparation of Summons and PraecipeContemporaneously with the filing of the complaint or equivalent pleading, the person seeking service or his attorney shall promptly prepare and furnish to the clerk as many copies of the complaint and summons as are necessary. The clerk shall examine, date, sign, and affix his seal to the summons and thereupon issue and deliver the papers to the appropriate person for service. Affidavits, requests, and any other information relating to the summons and its service as required or permitted by these rules shall be included in a praecipe attached to or entered upon the summons. Such praecipe shall be deemed to be a part of the summons for purposes of these rules. Separate or additional summons shall, as provided by these rules, be issued by the clerk at any time upon proper request of the person seeking service or his attorney.(C) Form of Summons. The summons shall contain:(1) The name and address of the person on whom the service is to be effected;(2) The name of the court and the cause number assigned to the case;(3) The title of the case as shown by the complaint, but, if there are multiple parties, the title may be shortened to include only the first named plaintiff and defendant with an appropriate indication that there are additional parties;;(4) The name, address, and telephone number of the attorney for the person seeking service;(5) The time within which these rules require the person being served to respond, and a clear statement that in case of his failure to do so, judgment by default may be rendered against him for the relief demanded in the complaint. The summons may also contain any additional information which will facilitate proper service.(D) Designation of Manner of Service. The person seeking service or his attorney may designate the manner of service upon the summons. If not so designated, the clerk shall cause service to be made by mail or other public means provided the mailing address of the person to be served is indicated in the summons or can be determined. If a mailing address is not furnished or cannot be determined or if service by mail or other public means is returned without acceptance, the complaint and summons shall promptly be delivered to the sheriff or his deputy who, unless otherwise directed, shall serve the summons.(E) Summons and Complaint Served Together – Exceptions. The summons and complaint shall be served together unless otherwise ordered by the court. When service of summons is made by publication, the complaint shall not be published. When jurisdiction over a party is dependent upon service of process by publication or by his appearance, summons and complaint shall be deemed to have been served at the end of the day of last required publication in the case of service by publication, and at the time of appearance in jurisdiction acquired by appearance. Whenever the summons and complaint are not served or published together, the summons shall contain the full, unabbreviated title of the case.Rule 4.1. Summons: Service on individuals(A) In General. Service may be made upon an individual, or an individual acting in a representative capacity, by:(1) sending a copy of the summons and complaint by registered or certified mail or other public means by which a written acknowledgment of receipt may be requested and obtained to his residence, place of business or employment with return receipt requested and returned showing receipt of the letter; or(2) delivering a copy of the summons and complaint to him personally; or(3) sending a copy of the summons and complaint by registered or certified mail or other public means by which a written acknowledgment of receipt may be requested and obtained to his residence, place of business or employment with return receipt requested and returned showing receipt of the letter; or(4) serving his agent as provided by rule, statute or valid agreement.(B) Copy Service to Be Followed With Mail. Whenever service is made under Clause (3) or (4) of subdivision (A), the person making the service also shall send by first class mail, a copy of the summons without the complaint to the last known address of the person being served, and this fact shall be shown upon the return. Amended Dec. 7, 1970, effective Jan. 1, 1971.Rule 4.2. Summons: Service upon infant or incompetents(A) Service Upon Infants. Service upon an individual known to be an infant shall be made upon his next friend or guardian ad litem, if service is with respect to the same action in which the infant is so represented. If there is no next friend or guardian ad litem, service shall be made upon his court-appointed representative if one is known and can be served within this state. If there is no court-appointed representative, service shall be made upon either parent known to have custody of the infant, or if there is no parent, upon a person known to be standing in the position of custodian or parent. The infant shall also be served if he is fourteen [14] years of age or older. In the event that service, as provided above, is not possible, service shall be made on the infant.(B) Service Upon Incompetents. Service upon an individual who has been adjudged to be of unsound mind, otherwise incompetent or who is believed to be such shall be made upon his next friend or guardian ad litem, if service is with respect to the same action in which the incompetent is so represented. If there is no next friend or guardian ad litem, service shall be made upon his court-appointed representative if one is known and can be served within this state. If there is no court-appointed representative, then upon the named party and also upon a person known to be standing in the position of custodian of his person.(C) Duty to Inform Court – Appearance. Nothing herein is intended to affect the duty of a party to inform the court that a person is an infant or incompetent. An appearance by a court-appointed guardian, next friend or guardian ad litem or his attorney shall correct any defect in service under this section unless such defect be challenged.Rule 4.3. Summons: Service upon institutionalized persons Service of summons upon a person who is imprisoned or restrained in an institution shall be made by delivering or mailing a copy of the summons and complaint to the official in charge of the institution. It shall be the duty of said official to immediately deliver the summons and complaint to the person being served and allow him to make provisions for adequate representation by counsel. The official shall indicate upon the return whether the person has received the summons and been allowed an opportunity to retain counsel.Rule 4.4. Service upon persons in actions for acts done in this state or having an effect in this state(A) Acts Serving as a Basis for Jurisdiction.Any person or organization that is a nonresident of this state, a resident of this state who has left the state, or a person whose residence is unknown, submits to the jurisdiction of the courts of this state as to any action arising from the following acts committed by him or her or his or her agent:(1) doing any business in this state;(2) causing personal injury or property damage by an act or omission done within this state;(3) causing personal injury or property damage in this state by an occurrence, act or omission done outside this state if he regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue or benefit from goods, materials, or services used, consumed, or rendered in this state;(4) having supplied or contracted to supply services rendered or to be rendered or goods or materials furnished or to be furnished in this state;(5) owning, using, or possessing any real property or an interest in real property within this state;(6) contracting to insure or act as surety for or on behalf of any person, property or risk located within this state at the time the contract was made;(7) living in the marital relationship within the state notwithstanding subsequent departure from the state, as to all obligations for alimony, custody, child support, or property settlement, if the other party to the marital relationship continues to reside in the state; or(8) abusing, harassing, or disturbing the peace of, or violating a protective or restraining order for the protection of, any person within the state by an act or omission done in this state, or outside this state if the act or omission is part of a continuing course of conduct having an effect in this state.(B) Manner of service. A person subject to the jurisdiction of the courts of this state under this rule may be served with summons:(1) As provided by Rules 4.1 (service on individuals), 4.5 (service upon resident who cannot be found or served within the state), 4.6 (service upon organizations), 4.9 (in rem actions); or(2) The person shall be deemed to have appointed the Secretary of State as his agent upon whom service of summons may be made as provided in Rule 4.10.(C) More convenient forum. Jurisdiction under this rule is subject to the power of the court to order the litigation to be held elsewhere under such reasonable conditions as the court in its discretion may determine to be just. In the exercise of that discretion the court may appropriately consider such factors as:(1) Amenability to personal jurisdiction in this state and in any alternative forum of the parties to the action;(2) Convenience to the parties and witnesses of the trial in this state in any alternative forum;(3) Differences in conflict of law rules applicable in this state and in the alternative forum; or(4) Any other factors having substantial bearing upon the selection of a convenient, reasonable and fair place of trial.(D) Forum Non Conveniens – Stay or Dismissal. No stay or dismissal shall be granted due to a finding of forum non conveniens until all properly joined defendants file with the clerk of the court a written stipulation that each defendant will:(1) submit to the personal jurisdiction of the courts of the other forum; and(2) waive any defense based on the statute of limitations applicable in the other forum with respect to all causes of action brought by a party to which this subsection applies.(E) Order on Forum Non Conveniens – Modification. The court may, on motion and notice to the parties, modify an order granting a stay or dismissal under this subsection and take any further action in the proceeding as the interests of justice may require. If the moving party violates a stipulation required by subsection (D), the court shall withdraw the order staying or dismissing the action and proceed as if the order had never been issued. Notwithstanding any other law, the court shall have continuing jurisdiction for the purposes of this subsection. Amended Dec. 7, 1970, effective Jan. 1, 1971; amended effective Nov. 10, 1988; amended Dec. 5, 1996, effective Feb. 1,1995; amended Dec. 23, 1996, effective March 1, 1997 .Rule 4.5. Summons: Service upon resident who cannot be found or served within the state When the person to be served is a resident of this state who cannot be served personally or by agent in this state and either cannot be found, has concealed his whereabouts or has left the state, summons may be served in the manner provided by Rule 4.9 (summons in in rem actions).Rule 4.6. Service upon organizations(A) Persons to be served. Service upon an organization may be made as follows:(1) In the case of a domestic or foreign organization upon an executive officer thereof, or if there is an agent appointed or deemed by law to have been appointed to receive service, then upon such agent.(2) In the case of a partnership, upon a general partner thereof.(3) In the case of a state governmental organization upon the executive officer thereof and also upon the attorney general;(4) In the case of a local governmental organization upon the executive thereof, and if a statute provides for an attorney to represent the local government organization, and an attorney occupies such position, then also upon such attorney.(5) When, in subsections (3) and (4) of this subdivision, a governmental representative is named as a party in his individual name or in such name along with his official title, then also upon such representative.(B) Manner of service. Service under subdivision (A) of this rule shall be made on the proper person in the manner provided by these rules, for service upon individuals, but a person seeking service or his attorney shall not knowingly direct service to be made at the person’s dwelling house or place of abode, unless such is an address furnished under the requirements of a statute or valid agreement, or unless an affidavit on or attached to the summons states that service in another manner is impractical.(C) Service at organization’s office. When shown upon an affidavit or in the return, that service upon an organization cannot be made as provided in subdivision (A) or (B) of this rule, service may be made by leaving a copy of the summons and complaint at any office of such organization located within this state with the person in charge of such office.Rule 4.7. Summons: Service upon agent named by statute or agreement Whenever an agent (other than an agent appointed to receive service for a governmental organization of this state) has been designated by or pursuant to statute or valid agreement to receive service for the person being served, service may be made upon such agent as follows:(1) If the agent is a governmental organization or officer d3esignated by or pursuant to statute, service shall be made as provided in Rule 4.10.(2) If the agent is one other than that described above, service shall be made upon him as provided in Rule 4.1 (service upon individuals) or 4.6 (service upon organizations). If service cannot be made upon such agent, because there is no address furnished as required by statute or valid agreement or his whereabouts in this state are unknown, then his principal shall be deemed to have appointed the Secretary of State as a replacement for the agent and service may be made upon the Secretary of State as provided in Rule 4.10.Rule 4.8. Summons: Service of pleadings or summons on Attorney General Service of a copy of the summons and complaint or any pleading upon the Attorney General under these rules or any statute shall be made by personal service upon him, a deputy or clerk at his office, or by mail or other public means to him at such office in the manner provided by Rule 4.1(A)(1), and by Rule 4.11 to the extent applicable.
Rule 4.9. Summons: In rem actions(A) In general. In any action involving a res situated within this state, service may be made as provided in this rule. The court may render a judgment or decree to the extent of its jurisdiction over the res.(B) Manner of service. Service under this rule may be made as follows:(1) By service of summons upon a person or his agent pursuant to these rules; or(2) By service of summons outside this state in a manner provided by Rule 4.1 (service upon individuals) or by publication outside this state in a manner provided by Rule 4.13 (service by publication) or outside this state in any other manner as provided by these rules; or(3) By service by publication pursuant to Rule 4.13.Rule 4.10. Summons: Service upon Secretary of State or other governmental agent
(A) In general. Whenever, under these rules or any statute, service is made upon the Secretary of State or any other governmental organization or officer, as agent for the person being served, service may be made upon such agent as provided in this rule.(1) The person seeking service or his attorney shall:(a) submit his request for service upon the agent in the praecipe for summons, and state that the governmental organization or officer is the agent of the person being served;(b) state the address of the person being served as filed and recorded pursuant to a statute or valid agreement, or if no such address is known, then his last known mailing address, and if no such address is known, then such shall be stated;(c) pay any fee prescribed by statute to be forwarded together with sufficient copies of the summons, affidavit and complaint, to the agent by the clerk of the court.(2) Upon receipt thereof the agent shall promptly:(a) send to the person being served a copy of the summons and complaint by registered or certified mail or by other public means by which a written acknowledgment of receipt may be obtained;(b) complete and deliver to the clerk an affidavit showing the date of the mailing, or if there was no mailing, the reason therefor;(c) send to the clerk a copy of the return receipt along with a copy of the summons;(d) file and retain a copy of the return receipt.Rule 4.11. Summons: Registered or certified mailWhenever service by registered or certified mail or other public means by which a return receipt may be requested is authorized, the clerk of the court or a governmental agent under Rule 4.10 shall send the summons and complaint to the person being served at the address supplied upon the summons, or furnished by the person seeking service. In his return the clerk of the court or the governmental agent shall show the date and place of mailing, a copy of the return receipt if and when received by him showing whether the mailing was accepted or returned, and, if accepted, by whom. The return along with the receipt shall be promptly filed by the clerk with the pleadings and become a part of the record. If a mailing by the clerk of the court is returned without acceptance, the clerk shall reissue the summons and complaint for service as requested, by the person seeking service.Amended Dec. 7, 1970, effective Jan. 1, 1971.Rule 4.12. Summons: Service by sheriff or other officer(A) In general.Whenever service is made by delivering a copy to a person personally or by leaving a copy at his dwelling house or place of employment as provided by Rule 4.1, summons shall be issued to and served by the sheriff, his deputy, or some person specially or regularly appointed by the court for that purpose. Service shall be effective if made by a person not otherwise authorized by these rules, but proof of service by such a person must be made by him as a witness or by deposition without allowance of expenses therefor as costs. The person to whom the summons is delivered for service must act promptly and exercise reasonable care to cause service to be made.(B) Special service by police officers. A sheriff, his deputy, or any full-time state or municipal police officer may serve summons in any county of this state if he agrees or has agreed to make the service. When specially requested in the praecipe for summons, the complaint and summons shall be delivered to such officer by the clerk or the attorney for the person seeking service. No agreement with the sheriff or his deputy for such service in the sheriff’s own county shall be permitted. In no event shall any expenses agreed upon under this provision be assessed or recovered as costs or affect court costs otherwise imposed for regular service.(C) Service in other counties. A summons may be served in any county in this state. If service is to be made in another county, the summons may be issued by the clerk for service therein to the sheriff of such county or to a person authorized to make service by these rules.(D) Service outside the state. Personal service, when permitted by these rules to be made outside the state, may be made there by any disinterested person or by the attorney representing the person seeking such service. The expenses of such person may be assessed as costs only if they are reasonable and if service by mail or other public means cannot be made or is not successful.Rule 4.13. Summons: Service by publication.(A) Praecipe for summons by publication. In any action where notice by publication is permitted by these rules or by statute, service may be made by publication. Summons by publication may name all the persons to be served, and separate publications with respect to each party shall not be required. The person seeking such service, or his attorney, shall submit his request therefor upon the praecipe for summons along with supporting affidavits that diligent search has been made[,] that the defendant cannot be found, has concealed his whereabouts, or has left the state, and shall prepare the contents of the summons to be published. The summons shall be signed by the clerk of the court or the sheriff in such manner as to indicate that it is made by his authority.(B) Contents of summons by publication. The summons shall contain the following information:(1) The name of the person beign sued, and the person to whom the notice is directed, and, if the person’s whereabouts are unknown or some or all of the parties are unknown, a statement to that effect;(2) The name of the court and cause number assigned to the case;(3) The title of the case as shown by the complaint, but if there are multiple parties, the title may be shortened to include only the first named plaintiff and those defendants to be served by publication with an appropriate indication that there are additional parties;(4) The name and address of the attorney representing the person seeking service;(5) A brief statement of the nature of the suit, which need not contain the details and perticulars of the claim. A description of any property, relationship, or other res involved in the action, and a statement that the person being sued claims some interest therein;(6) A clear statement that the person being sued must respond within thirty [30] days after the last notice of the action is published, and in case he fails to do so, judgment by default may be entered against him for the relief demaned in the complaint.(C) Publication of summons. The summons shall be published three [3] times by the clerk or person making it, the first publication promptly and each two [2] succeeding publications at least seven [7] and not more that fourteen [14] days after the prior publication, in a newspaper authorized by law to publish notices, and published in the county where the complaint or action is filed, where the res is located, or where the defendant resides or where he was known last to reside. If no newspaper is published in the county, then the summons shall be published in the county in this state nearest thereto in which any such paper may be printed, or in a place specially ordered by the court. The person seeking the service or his attorney may designate any qualified newspaper, and if he fails to do so, the selection may be made by the clerk.(D) By whom made or procured. Service of summons by publication shall be made and procured by the clerk, by a person appointed by the court for that purpose, or by the clerk or sheriff of another county where publication is to be made.(E) Return. The clerk or person making the service shall prepare the return and include the following:(1) Any supporting affidavits of the printer containing a copy of the summons which was published;(2) An information or statement that the newspaper and the publication meet all legal requirements applicable to such publication;(3) The dates of publicationThe return and affidavits shall be filed with the pleadings and other papers in the case and shall become a part of the record as provided in these rules.Rule 4.14. Territorial limits and service under special order(A) Territorial limits of effective service. Process may be served anywhere within the territorial limits of this state and outside the state as provided in these rules.(B) Service under special order of court. Upon application of any party the court in which any action is pending may make an appropriate order for service in a manner not provided by these rules or statutes when such service is reasonably calculated to give the defendant actual knowledge of the proceedings and an opportunity to be heard.Rule 4.15. Summons: Proof of Service – Return – Amendments – Defects(A) Return – Form. The person making service shall promptly make his return upon or attach it to a copy of the summons which shall be delivered to the clerk. The return shall be signed by the person making it, and shall include a statement:(1) that service was made upon the person as required by law and the time, place, and manner thereof;(2) if service was not made, the particular manner in which it was thwarted in terms of fact or in terms of law;(3) such other information as is expressly required by these rules.(B) Return and affidavits as evidence. The return, along with the summons to which it is attached or is a part, the praecipe for summons, affidavits furnished with the summons or praecipe for summons, and all other affidavits permitted by these rules shall be filed by the clerk with the pleadings and other papers in the case and thereupon shall become a part of the record, and have such evidentiary effect as is now provided by law. Copies of such record shall be admissible in all actions and proceedings and may be entered in any public records when certified over the signature of the clerk or his deputy and the clerk’s seal.(C) Proof of filing and issuance dates. The clerk shall enter a filing date upon every praecipe, pleading, return, summons, affidavit or other paper filed with or entered of record by him. The clerk shall also enter an issuance date upon any summons issued, mailed or delivered by him, or other communication served or transmitted by him under these rules. Such filing or issuance date shall constitute evidence of the date of filing or issuance without further authentication when entered in the court records, or when the paper or a copy thereof is otherwise properly offered or admitted into evidence.(D) Admission of service. A written admission stating the date and place of service, signed by the person being served, may be filed with the clerk who shall file it with the pleadings. Such admission shall become a part of the record, constitute evidence of proper service, and shall be allowed as evidence in any action or proceeding.(E) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended unless it clearly appears that material prejudice would result to the substantial rights of the person against whom the process is issued.(F) Defects in summons. No summons or the service thereof shall be set aside or be adjudged insufficient when either is reasonably calculated to inform the person to be served that an action has been instituted against him, the name of the court, and the time within which he is required to respond.Rule 4.16. Summons: Duties of persons to aid in service(A) It shall be the duty of every person being served under these rules to cooperate, accept service, comply with the provisions of these rules, and, when service is made upon him personally, acknowledge receipt of the papers in writing over his signature.(1) Offering or tendering the papers to the person being served and advising the person that he or she is being served is adequate service.(2) A person who has refused to accept the offer or tender of the papers being served thereafter may not challenge the service of those papers.(B) Anyone accepting service for another person is under a duty to:(1) promptly deliver the papers to that person;(2) promptly notify that person that he holds the papers for him; or(3) within a reasonable time, in writing, notify the clerk or person making the service that he has been unable to make such delivery of notice when such is the case.(C) No person through whom service is made under these rules may impose any sanction, penalty, punishment, or discrimination whatsoever against the person being served because of such service. Any person willfully violating any provision of this rule may be subjected to contempt proceedings.Amended Oct. 30, 1992, effective Jan. 1, 1993.Rule 4.17. Summons: Certain proceedings excepted. Rules 4 through 4.16 shall not replace the manner of serving summons or giving notice as specially provided by statute or rule in proceedings involving, without limitation, the administration of decedent’s estates, guardianships, receiverships, assignments for the benefit of creditors.Rule 5. Service and Filing of Pleading and Other Papers(A) Service: When Required. Unless otherwise provided by these rules or an order of the court, each and special judge, if any, party shall be served with:(1) every order required by its terms to be served;(2) every pleading subsequent to the original complaint;(3) every written motion except one which may be heard ex parte;(4) every brief submitted to the trial court;(5) every paper relating to discovery required to be served upon a party; and(6) every written notice, appearance, demand, offer of judgment, designation of record on appeal, or similar paper.No service need be made on parties in default for failure to appear, except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided by service of summons in Rule 4.(B) Service: How made. Whenever a party is represented by an attorney of record, service shall be made upon such attorney unless service upon the party himself is ordered by the court. Service upon the attorney or party shall be made by delivering or mailing a copy of the papers to him at his last known address.(1) Delivery. Delivery of a copy within this rule means:(a) offering or tendering it to the attorney or party and stating the nature of the papers being served. Refusal to accept an offered or tendered document is a waiver of any objection to the sufficiency or adequacy of service of that document;(b) leaving it at his office with a clerk or other person in charge thereof, or if there is no one in charge, leaving it in a conspicuous place therein; or(c) if the office is closed, by leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein; or,(d) leaving it at some other suitable place, selected by the attorney upon whom service is being made, pursuant to duly promulgated local rule.(2) Service by Mail. If service is made by mail, the papers shall be deposited in the United States mail addressed to the person on whom they are being served, with postage prepaid. Service shall be deemed complete upon mailing Proof of service of all papers permitted to be mailed may be made by written acknowledgment of service, by affidavit of the person who mailed the papers, or by certificate of an attorney. It shall be the duty of attorneys when entering their appearance in a cause or when filing pleadings or papers therein, to have noted on the chronological case summary or said pleadings or papers so filed the address and telephone number of their office. Service by delivery or by mail at such address shall be deemed sufficient and complete.(C) Same: Numerous defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order(1) that service of the pleadings of the defendants and replies thereto need not be made as between the defendants;(2) that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties; and(3) that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.(D) Filing.(1) Except as otherwise provided in subparagraph (2) hereof, all pleadings and papers subsequent to the complaint which are required to be served upon a party shall be filed with the Court either before service or within a reasonable period of time thereafter.(2) No deposition or request for discovery or response thereto under Trial Rules 27, 30, 31, 33, 34 or 36 shall be filed with the Court unless:(a) A motion is filed pursuant to Trial Rule 26(C) or Trial Rule 37 and the original deposition or request for discovery or response thereto is necessary to enable the Court to rule; or(b) A party desires to use the deposition or request for discovery or response thereto for evidentiary purposes at trial or in connection with a motion, and the Court, either upon its own motion or that of any party, or as a part of any pre-trial order, orders the filing of the original.(3) Custody of original and Period of Retention:(a) The original of a deposition shall, subject to the provisions of Trial Rule 30(E), be delivered by the reporter to the party taking it and shall be maintained by that party until filed with the Court pursuant to paragraph (2) or until the later of final judgment, agreed settlement of the litigation or all appellate rights have been exhausted.(b) The original or any request for discovery or response thereto under Trial Rules 27, 30, 31, 33, 34 and 36 shall be maintained by the party originating the request or response until filed with the Court pursuant to paragraph (2) or until the later of final judgment, agreed settlement or all appellate rights have been exhausted.(4) In the event it is made to appear to the satisfaction of the Court that the original of a deposition or request for discovery or response thereto cannot be filed with the Court when required, the Court may allow use of a copy instead of the original.(5) The filing of any deposition shall constitute publication.(E) Filing With the Court Defined. The filing of pleadings, motions, and other papers with the court as required by these rules shall be made by one of the following methods:(1) Delivery to the clerk of the court;(2) Sending by electronic facsimile transmission under the procedure adopted pursuant to Administrative Rule 12;(3) Mailing to the clerk by registered or certified mail return receipt requested; or(4) If the court so permits, filing with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. Filing by registered or certified mail shall be complete upon mailing.Filing by registered or certified mail shall be complete upon mailing.[As amended December 11, 1969, effective midnight December 31, 1969; amended November 13, 1979, effective January 1, 1980; amended October 15, 1986, effective January 1, 1987; amended November 13, 1990, effective January 1, 1991; amended October 25, 1991, effective January 1, 1992; amended October 30, 1992, effective January 1, 1993; amended December 5, 1994, and effective February 1, 1995; amended December 4, 1998, effective January 1, 1999.]
Rule 4.15. Summons: Proof of Service – Return – Amendments – Defects(A) Return – Form. The person making service shall promptly make his return upon or attach it to a copy of the summons which shall be delivered to the clerk. The return shall be signed by the person making it, and shall include a statement:(1) that service was made upon the person as required by law and the time, place, and manner thereof;(2) if service was not made, the particular manner in which it was thwarted in terms of fact or in terms of law;(3) such other information as is expressly required by these rules.(B) Return and affidavits as evidence. The return, along with the summons to which it is attached or is a part, the praecipe for summons, affidavits furnished with the summons or praecipe for summons, and all other affidavits permitted by these rules shall be filed by the clerk with the pleadings and other papers in the case and thereupon shall become a part of the record, and have such evidentiary effect as is now provided by law. Copies of such record shall be admissible in all actions and proceedings and may be entered in any public records when certified over the signature of the clerk or his deputy and the clerk’s seal.(C) Proof of filing and issuance dates. The clerk shall enter a filing date upon every praecipe, pleading, return, summons, affidavit or other paper filed with or entered of record by him. The clerk shall also enter an issuance date upon any summons issued, mailed or delivered by him, or other communication served or transmitted by him under these rules. Such filing or issuance date shall constitute evidence of the date of filing or issuance without further authentication when entered in the court records, or when the paper or a copy thereof is otherwise properly offered or admitted into evidence.(D) Admission of service. A written admission stating the date and place of service, signed by the person being served, may be filed with the clerk who shall file it with the pleadings. Such admission shall become a part of the record, constitute evidence of proper service, and shall be allowed as evidence in any action or proceeding.(E) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended unless it clearly appears that material prejudice would result to the substantial rights of the person against whom the process is issued.(F) Defects in summons. No summons or the service thereof shall be set aside or be adjudged insufficient when either is reasonably calculated to inform the person to be served that an action has been instituted against him, the name of the court, and the time within which he is required to respond.Rule 4.16. Summons: Duties of persons to aid in service(A) It shall be the duty of every person being served under these rules to cooperate, accept service, comply with the provisions of these rules, and, when service is made upon him personally, acknowledge receipt of the papers in writing over his signature.(1) Offering or tendering the papers to the person being served and advising the person that he or she is being served is adequate service.(2) A person who has refused to accept the offer or tender of the papers being served thereafter may not challenge the service of those papers.(B) Anyone accepting service for another person is under a duty to:(1) promptly deliver the papers to that person;(2) promptly notify that person that he holds the papers for him; or(3) within a reasonable time, in writing, notify the clerk or person making the service that he has been unable to make such delivery of notice when such is the case.(C) No person through whom service is made under these rules may impose any sanction, penalty, punishment, or discrimination whatsoever against the person being served because of such service. Any person willfully violating any provision of this rule may be subjected to contempt proceedings.Amended Oct. 30, 1992, effective Jan. 1, 1993.Rule 4.17. Summons: Certain proceedings excepted. Rules 4 through 4.16 shall not replace the manner of serving summons or giving notice as specially provided by statute or rule in proceedings involving, without limitation, the administration of decedent’s estates, guardianships, receiverships, assignments for the benefit of creditors.Rule 5. Service and Filing of Pleading and Other Papers(A) Service: When Required. Unless otherwise provided by these rules or an order of the court, each and special judge, if any, party shall be served with:(1) every order required by its terms to be served;(2) every pleading subsequent to the original complaint;(3) every written motion except one which may be heard ex parte;(4) every brief submitted to the trial court;(5) every paper relating to discovery required to be served upon a party; and(6) every written notice, appearance, demand, offer of judgment, designation of record on appeal, or similar paper.No service need be made on parties in default for failure to appear, except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided by service of summons in Rule 4.(B) Service: How made. Whenever a party is represented by an attorney of record, service shall be made upon such attorney unless service upon the party himself is ordered by the court. Service upon the attorney or party shall be made by delivering or mailing a copy of the papers to him at his last known address.(1) Delivery. Delivery of a copy within this rule means:(a) offering or tendering it to the attorney or party and stating the nature of the papers being served. Refusal to accept an offered or tendered document is a waiver of any objection to the sufficiency or adequacy of service of that document;(b) leaving it at his office with a clerk or other person in charge thereof, or if there is no one in charge, leaving it in a conspicuous place therein; or(c) if the office is closed, by leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein; or,(d) leaving it at some other suitable place, selected by the attorney upon whom service is being made, pursuant to duly promulgated local rule.(2) Service by Mail. If service is made by mail, the papers shall be deposited in the United States mail addressed to the person on whom they are being served, with postage prepaid. Service shall be deemed complete upon mailing Proof of service of all papers permitted to be mailed may be made by written acknowledgment of service, by affidavit of the person who mailed the papers, or by certificate of an attorney. It shall be the duty of attorneys when entering their appearance in a cause or when filing pleadings or papers therein, to have noted on the chronological case summary or said pleadings or papers so filed the address and telephone number of their office. Service by delivery or by mail at such address shall be deemed sufficient and complete.(C) Same: Numerous defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order(1) that service of the pleadings of the defendants and replies thereto need not be made as between the defendants;(2) that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties; and(3) that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.(D) Filing.(1) Except as otherwise provided in subparagraph (2) hereof, all pleadings and papers subsequent to the complaint which are required to be served upon a party shall be filed with the Court either before service or within a reasonable period of time thereafter.(2) No deposition or request for discovery or response thereto under Trial Rules 27, 30, 31, 33, 34 or 36 shall be filed with the Court unless:(a) A motion is filed pursuant to Trial Rule 26(C) or Trial Rule 37 and the original deposition or request for discovery or response thereto is necessary to enable the Court to rule; or(b) A party desires to use the deposition or request for discovery or response thereto for evidentiary purposes at trial or in connection with a motion, and the Court, either upon its own motion or that of any party, or as a part of any pre-trial order, orders the filing of the original.(3) Custody of original and Period of Retention:(a) The original of a deposition shall, subject to the provisions of Trial Rule 30(E), be delivered by the reporter to the party taking it and shall be maintained by that party until filed with the Court pursuant to paragraph (2) or until the later of final judgment, agreed settlement of the litigation or all appellate rights have been exhausted.(b) The original or any request for discovery or response thereto under Trial Rules 27, 30, 31, 33, 34 and 36 shall be maintained by the party originating the request or response until filed with the Court pursuant to paragraph (2) or until the later of final judgment, agreed settlement or all appellate rights have been exhausted.(4) In the event it is made to appear to the satisfaction of the Court that the original of a deposition or request for discovery or response thereto cannot be filed with the Court when required, the Court may allow use of a copy instead of the original.(5) The filing of any deposition shall constitute publication.(E) Filing With the Court Defined. The filing of pleadings, motions, and other papers with the court as required by these rules shall be made by one of the following methods:(1) Delivery to the clerk of the court;(2) Sending by electronic facsimile transmission under the procedure adopted pursuant to Administrative Rule 12;(3) Mailing to the clerk by registered or certified mail return receipt requested; or(4) If the court so permits, filing with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. Filing by registered or certified mail shall be complete upon mailing.Filing by registered or certified mail shall be complete upon mailing.[As amended December 11, 1969, effective midnight December 31, 1969; amended November 13, 1979, effective January 1, 1980; amended October 15, 1986, effective January 1, 1987; amended November 13, 1990, effective January 1, 1991; amended October 25, 1991, effective January 1, 1992; amended October 30, 1992, effective January 1, 1993; amended December 5, 1994, and effective February 1, 1995; amended December 4, 1998, effective January 1, 1999.]Rule 45. Subpoena(A) For Attendance of Witnesses – Form – Issuance.(1) Every subpoena shall:(a) state the name of the court;(b) state the title of the action (without naming more than the first named plaintiffs and defendants in the complaint and the case number); and(c) command each person to whom it is directed to attend and give testimony at a time and place therein specified.(2) The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it or his or her attorney, who shall fill it in before service. An attorney admitted to practice law in this state, as an officer of the court, may also issue and sign such subpoena on behalf of (a) a court in which the attorney has appeared for a party; or (b) a court in which a deposition or production is compelled by the subpoena, if the deposition or production pertains to an action pending in a court where the attorney has appeared for a party in that case.(B) For production of documentary evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may(1) quash or modify the subpoena if it is unreasonable and oppressive or(2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.(C) Service. A subpoena may be served by the sheriff or his deputy, a party or any person. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person. Service may be made in the same manner as provided in Rule 4.1, Rule 4.16 and Rule 5(B).(D) Subpoena for taking depositions – Place of examination.(1) Proof of service of a notice to take a deposition as provided in Rules 30(B) and 31(A) constitutes a sufficient authorization for the issuance by the clerk of court for the county in which the deposition is to be taken of subpoenas for the persons named or described therein. The subpoena may command the person to whom it is directed to produce designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by Rule 26(B), but in that event the subpoena will be subject to the provisions of Rule 26(C) and subdivision (B) of this rule.(2) An individual may be required to attend an examination only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of court. A nonresident of the state may be required to attend only in the state and county wherein he is served with a subpoena, or within forty [40] miles from the place of service, or at such other convenient place as is fixed by an order of court. A non-resident plaintiff may be required to attend at his own expense an examination in the county of this state where the action is commenced or in a county fixed by the court.(E) Subpoena for a hearing or trial. At the request of any party subpoenas for attendance at a hearing or trial shall be issued by the clerk of court of the county in which the action is pending when requested, or, in the case of a subpoena for the taking of a deposition, by the clerk of court of the county in which the action is so pending or in the county in which the deposition is being taken. A subpoena may be served at any place within the state; and when permitted by the laws of the United States, this or another state or foreign country, the court upon proper application and cause shown may authorize the service of a subpoena outside the state in accordance with and as permitted by such law.(F) Contempt.Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued, or court of the county where the witness was required thereunder to appear or act. The attendance of all witnesses when duly subpoenaed, and to whom fees have been paid or tendered as required by law may be enforced by attachment.(G) Tender of fees. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person who shall be required to attend outside his county of residence as provided in section (C), and by so tendering to him the fees for one [1] day’s attendance and the mileage allowed by law. Such tender shall not be required to be made to a party who is subpoenaed or to an officer, employee, agent or representative of a party which is an organization, including the estate or any governmental organization, who is being examined upon any matter connected in any way with his employment or with duties to the organization.(H) Proof of service of subpoena – Fees. When a subpoena is served by the sheriff or his deputy, his return shall be proof of service. When served by any other person the service must be shown by affidavit. No fees or costs for the service of a subpoena shall be collected or charged as costs except when service is made by the sheriff or his deputy.
Topics: Process Service | No Comments »
New Mexico Foreclosure Process Server Laws
By admin | April 9, 2010
1-004. Process.A. Summons; issuance. Upon the filing of the complaint,the clerk shall forthwith issue a summons and deliver it forservice. Upon the request of the plaintiff separate or additionalsummons shall issue against any defendants. Any defendantmay waive the issuance or service of summons.B. Summons; execution; form. The summons shall besigned by the clerk, issued under the seal of the court, be directed to the defendant, and must contain:(1) the name of the court in which the action is brought,the name of the county in which the complaint is filed,the docket number of the case, the name of the firstparty on each side, with an appropriate indication of theother parties, and the name of each party to whomthe summons is directed;(2) a direction that the defendant serve a responsivepleading or motion within thirty (30) days after service of the summons, and file the same, all as provided by law, and anotice that unless the defendant so serves and files aresponsive pleading or motion, the plaintiff will applyto the court for the relief demanded in the complaint;(3) the name and address of the plaintiff’s attorney, if any, shall be shown on every summons, otherwise the plaintiff’s address;(4) the summons may be in the following form:SUMMONS(name of court)(caption of case)THE STATE OF NEW MEXICOTO: _____________________, defendant.GREETINGS:You are hereby directed to serve a pleading ormotion in response to the complaint within thirty (30) daysafter service of this summons, and file the same, all as provided by law.You are notified that, unless you so serve and file a responsive pleading or motion, the plaintiff will apply tothe court for the relief demanded in the complaint. Attorneyor attorneys for plaintiff: ____________________________________________________
Address of attorneys for plaintiff (or of plaintiff, if no attorney): ____________________________________________________
WITNESS, the Honorable __________________________, district judge of the _____________________ judicial district court of the State of New Mexico, and the seal of the district court of ___________________ County, this _____ day of__________ A.D., 20__._________________________, ClerkBy _________________________, Deputy(The summons may also include appropriate forms for return of service.)C. Summons; service of copy. A copy of the summons with copy of complaint attached shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary.D. Summons; by whom served. In civil actions any process may be served by the sheriff of the county where the defendant may be found, or by any other person who is over the age of eighteen (18) years and not a party to the action, except for writs of attachment, writs of replevin, and writs of habeas corpus, which shall be served by any person not a party to the action over the age of eighteen (18) years who may be especially designated by the court to perform such service, or by the sheriff of the county where the property or person may be found.E. Summons; service by mail. A summons and complaint may be served upon a defendant of any class referred to in Subparagraph (1) or (2) of Paragraph F of this rule by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two (2) copies of a notice and acknowledgement conforming with the form set out below and a return envelope, postage prepaid, addressed to the sender. If no acknowledgement of service under this subdivision of this rule is received by the sender within twenty (20) days after the date of mailing, service of such summons and complaint shall be made by a person authorized by Paragraph D of this rule, in the manner prescribed by Subparagraph (1) or (2) of Paragraph F of this rule. Unless good cause is shown for not doing so, the court shall order the payment of the costs of personal service by the person served if such person does not complete and return within twenty (20) days after mailing the notice and acknowledgement of receipt of summons. The form of the notice and acknowledgement of receipt of summons and complaint shall be substantially as follows:NOTICE AND RECEIPT OF SUMMONS AND COMPLAINT(name of court)(caption of case)NOTICETO: ________________________________________________________________________________________________________(insert the name and address of the person to be served)The enclosed summons and complaint are served pursuant to Paragraph E of Rule 1-004 of the New Mexico Rules of Civil Procedure.You must sign and date the receipt. If you are served on behalf of a corporation, unincorporated association (including a partnership) or other entity, you must indicate under your signature your relationship to that entity. If you are served on behalf of another person and you are authorized to receive process, you must indicate under your signature your position or title.If you do not complete and return the form to the sender within twenty (20) days, you (or the party on whose behalf you are being served) may be required to pay any expenses incurred in serving a summons and complaint in any other manner permitted by law.If you do complete and return this form, you (or the party on whose behalf you are being served) must answer the complaint within thirty (30) days of the date upon which this notice was mailed, which appears below. If you fail to do so, judgment by default may be taken against you for the relief demanded in the complaint.I declare, under penalty of perjury, that this Notice and Receipt of Summons and Complaint was mailed on (insert date).________________________Signature______________Date of SignatureRECEIPT OF SUMMONS AND COMPLAINTI received a copy of the summons and complaint in the above-captioned matter at (insert address).________________________________________________Signature____________________Relationship to entity/authorityto receive service of process_______________Date of SignatureF. Summons; how served. Service shall be made as follows:(1) upon an individual other than a minor or an incapacitated person by delivering a copy of the summons and of the complaint to the individual personally; or if the individual refuses to receive such, by leaving same at the location where the individual has been found; and if the individual refuses to receive such copies or permit them to be left, such action shall constitute valid service. If the individual is absent, service may be made by delivering a copy of the process or other papers to be served to some person residing at the usual place of abode of the defendant who is over the age of fifteen (15) years; and if there is no such person available or willing to accept delivery, then service may be made by posting such copies in the most public part of the defendant’s premises, and by mailing to the defendant at defendant’s last known mailing address copies of the process;(2) upon domestic or foreign corporation by delivering a copy of the summons and of the complaint to an officer, a managing or a general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant; upon a partnership by delivering a copy of the summons and of the complaint to any general partner; and upon other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by law to receive service and the statute so requires, by also mailing a copy to the unincorporated association. If the person refuses to receive such copies, such action shall constitute valid service. If none of the persons mentioned is available, service may be made by delivering a copy of the process or other papers to be served at the principal office or place of business during regular business hours to the person in charge thereof;(d) in garnishment actions, service of writs of garnishment shall be made on the department of finance and administration, on the attorney general and on the head of the branch, agency, bureau, department, commission or institution. A copy of the writ of garnishment shall be delivered or mailed by registered or certified mail to the defendant employee;(e) service of process on the governor, attorney general, agency, bureau, department, commission or institution or head thereof may be made either by delivering a copy of the summons and of the complaint to the head or to the head’s receptionist. Where an executive secretary is employed, the executive secretary shall be considered as the head;(4) upon any county by delivering a copy of the summons and of the complaint to the county clerk, who shall forthwith notify the district attorney of the judicial district in which the county sued is situated;(5) upon a municipal corporation by delivering a copy of the summons and of the complaint to the city clerk, town clerk or village clerk, who in turn shall forthwith notify the head of the commission or other form of governing body;(6) upon the board of trustees of any land grant referred to in Sections 49-1-1 through 49-10-6 NMSA 1978, process shall be served upon the president or in the president’s absence upon the secretary of such board;(7) upon a minor, whenever there shall be a conservator of the estate or guardian of the person of such minor, by delivering a copy of the summons and of the complaint to the conservator or guardian. Service of process so made shall be considered as service upon the minor. In all other cases process shall be served by delivering a copy of the summons and of the complaint to the minor, and if the minor is living with an adult a copy of the summons and of the complaint shall also be delivered to the adult residing in the same household. In all cases where a guardian ad litem has been appointed, a copy of the summons and of the complaint shall be delivered to such representative, in addition to serving the minor as herein provided;(8) upon an incapacitated person, whenever there shall be a conservator of the estate or guardian of the person of such incapacitated person, by delivering a copy of the summons and of the complaint to the conservator or guardian. Service of process so made shall be considered as service upon the ward. In all other cases process shall be served upon the ward in the same manner as upon competent persons;(9) upon a personal representative, guardian, conservator, trustee or other fiduciary in the same manner as provided in Subparagraph (1) or (2) of this paragraph as may be appropriate. Service shall be made with reasonable diligence, and the original summons with proof of service shall be returned to the clerk of the court from which it was issued.G. Return. The person serving the process shall make proof of service thereof to the court promptly and in any event within the time during which the person served must respond to the process. When service is made by the sheriff (or a deputy) of the county in New Mexico, proof thereof shall be by certificate; and when made by a person other than a sheriff (or a deputy) of a New Mexico county, proof thereof shall be made by affidavit. If service is made under Paragraph E of this rule, return shall be made by the sender’s filing with the court the acknowledgement received pursuant to such paragraph. Where service within the state includes mailing, the return shall state the date and place of mailing. Failure to make proof of service shall not affect the validity of service.H. Service by publication. In actions where the relief sought does not require personal service and the party to be served is so situated that process cannot be personally served upon the party within the state, or in situations where the party to be served is a New Mexico resident who, by deliberate concealment to avoid service of process, has effectively prevented service on the party in the manner provided in Paragraph F of this rule, service by publication shall be as follows:(1) In any such action or proceeding, the clerk of the court shall cause to be issued a notice of the pendency of the action or proceeding upon the filing by plaintiff, the plaintiff’s agent or attorney, of a sworn pleading or affidavit stating that any defendant (whether an individual, corporation, partnership or association): resides or has gone out of the state; or is concealed within the state; or, in appropriate cases, is deliberately concealed to avoid service of process and thereby has effectively prevented service on the party; or the party’s whereabouts cannot be discovered after due inquiry and search has been made; or is in any manner situated so that the process cannot be served upon the party in the State of New Mexico.(2) The notice of pendency of action shall contain the names of the plaintiff and the defendant to the cause, or if there is more than one defendant to the cause, the notice shall contain the name of the plaintiff and the names of the defendants against whom constructive service is sought to be obtained; except as hereinafter provided, the notice shall contain also the name of the court in which the cause is pending and a statement of the general objects of the action; shall show the name of plaintiff’s attorney, with the plaintiff’s attorney’s office or post office address; and shall notify each defendant that unless the defendant files a responsive pleading or motion within the time required, judgment or other appropriate relief will be rendered in the cause against the defendant by default. The notice shall be signed by the clerk under the seal of the court.(3) The notice shall be published in some newspaper published in the county where the cause is pending; or, if there be no newspaper published in the county, then in some newspaper in general circulation in said county.(4) The publication of said notice shall be proved by the affidavit of the publisher, manager or agent of the newspaper, and the same shall be taken and considered as sufficient service of process and valid in law, and the plaintiff thereupon may prosecute the cause to a final judgment.(5) It shall not be necessary in stating the general object of the action in any such notice specifically to describe any real property which may be involved in such action, but in all such notices it shall be sufficient to refer to such property merely as “the property described in the complaint in the cause”, and to specify the county in which the land is situate and the sections, township and range in which it is situate, if it is on land which has been officially surveyed by section, or the land granted in which it is located if in a Spanish or Mexican grant, or the name of the city, town or village in which it is located, if it is in a municipality.(6) In suits to quiet title or in other proceedings where unknown heirs are parties, or where the defendants are designated by name, if living, or if deceased, are designated as the unknown heirs of such named party, it shall be sufficient to use the following form in the complaint and in the notice of pendency of action: “Unknown heirs of the following named deceased persons”; then following with the names of the various deceased persons whose unknown heirs are sought to be served; and as to parties named in the alternative: “The following named defendants by name, if living; if deceased, their unknown heirs”. Then name such persons.(7) In case it may be necessary to make a further publication by reason of omission or misnaming of parties, such further publication shall conform to the first publication, except that in addition to the first named defendant to the cause only such omitted or misnamed parties need be named against whom substituted service is sought to be obtained.I. Affidavit of residence; copy of process to be mailed. When the residence of the defendant in the cases mentioned in Paragraph H of this rule is known to the affiant, it shall be stated in the affidavit, and if the residence is not known, that fact shall be stated. When the residence of any defendant is known, the plaintiff, the plaintiff’s agent or attorney, shall, not less than thirty-five (35) days before rendition of final judgment or decree in the cause, deposit a copy of the summons and complaint in the post office, postage prepaid, directed to the defendant at the defendant’s place of residence as stated in the affidavit or pleading. Proof of mailing shall be made by affidavit of the person mailing such copies, filed in the cause.J. Service of summons outside of state equivalent to publication. Personal service of a copy of the summons and of the complaint out of the state shall be equivalent to service by publication and mailing as provided for by Paragraphs H and I of this rule. The defendant so served shall be required to respond as required by law on or before thirty (30) days from the date of service. Return of such service shall be made by affidavit of the person making same.K. Alias process. When any process has not been returned, or has been returned without service, or has been improperly served, it shall be the duty of the clerk, upon the application of any party to the suit, to issue other process as the party applying may direct.L. Service in manner approved by court. Upon motion, without notice, and showing by affidavit that service cannot reasonably be made as otherwise provided by this rule, the court may order service by any method or combination of methods, including publication, that is reasonably calculated under all the circumstances to apprise the defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend.M. Service; applicable statute. Where no provision is made in these rules for service of process, process shall be served as provided for by any applicable statute.N. Definitions. Wherever the terms “summons”, “process”, “service of process” or similar terms are used, such shall include the summons, complaint and any other papers required to be served.[As amended, effective January 1, 1987; October 1, 1998.]
1-045. Subpoena.A. Form; issuance.(1) Every subpoena shall:(a) state the name of the court from which it is issued;(b) state the title of the action and its civil action number;(c) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and(d) be substantially in the form approved by the Supreme Court. A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately.(2) All subpoenas shall issue from the court for the district in which the matter is pending.(3) The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney authorized to practice law in New Mexico and who represents a party, as an officer of the court, may also issue and sign a subpoena on behalf of the court.B. Service; place of examination.(1) A subpoena may be served any place within the state;(2) A subpoena may be served by any person who is not a party and is not less than eighteen (18) years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if that person’s attendance is commanded:(a) if the witness is to be paid from funds appropriated by the legislature to the administrative office of the courts for payment of state witnesses or for the payment of witnesses in indigency cases, by processing for payment to such witness the fee and mileage prescribed by regulation of the administrative office of the courts;(b) for all persons not described in Subparagraph (2) (a) of this paragraph, by tendering to that person the full fee for one day’s expenses provided by Subsection A of Section 10-8-4 NMSA 1978 as per diem for nonsalaried public officers attending a board or committee meeting and the mileage provided by Subsection D of Section 10-8-4 NMSA 1978. The fee for per diem expenses shall not be prorated. If attendance is required for more than one day, a full day’s expenses shall be paid prior to commencement of each day attendance is required. When the subpoena is issued on behalf of the state or an officer or agency thereof, fees and mileage need not be tendered. Prior to or at the same time as service of any subpoena commanding production of documents and things or inspection of premises before trial, notice shall be served on each party in the manner prescribed by Rule 1-005;(3) A person may be required to attend a deposition within one hundred (100) miles of where that person resides, is employed or transacts business in person, or at such other place as is fixed by an order of the court.(4) A person may be required to attend a hearing or trial at any place within the state.(5) Proof of service when necessary shall be made by filing with the clerk of the court a return substantially in the form approved by the Supreme Court.(6) A subpoena may be issued for taking of a deposition within this state in an action pending outside the state pursuant to Section 38-8-1 NMSA 1978 upon the filing of a miscellaneous proceeding in the judicial district in which the subpoena is to be served. Upon the docketing of the miscellaneous proceeding, the subpoena may be issued and shall be served as provided by this rule.(7) A subpoena may be served in an action pending in this state on a person in another state or country in the manner provided by law or rule of the other state or country.C. Protection of persons subject to subpoenas.(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.(2) (a) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.(b) Subject to Subparagraph (2) of Paragraph D of this rule, a person commanded to produce and permit inspection and copying may, within fourteen (14) days after service of the subpoena or before the time specified for compliance if such time is less than fourteen (14) days after service, serve upon all parties written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.(3) (a) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it:(i) fails to allow reasonable time for compliance,(ii) requires a person who is not a party or an officer of a party to travel to a place more than one hundred (100) miles from the place where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of Subparagraph (3) (b) (iii) of this paragraph, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held, or(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or(iv) subjects a person to undue burden.(b) If a subpoena:(i) requires disclosure of a trade secret or other confidential research, development or commercial information,(ii) requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party, or(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than one hundred (100) miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.D. Duties in responding to subpoena.(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.E. Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a non-party to attend or produce at a place not within the limits provided in Subparagraph (3) (a) (ii) of Paragraph C of this rule.[As amended, effective January 1, 1987; August 1, 1989; January 1, 1998.]
Topics: Process Service | No Comments »
Vermont Foreclosure Process Server Laws
By admin | April 9, 2010
Rule 4. Process
(a) Summons: Issuance. The summons shall be filled out by the plaintiff’s attorney as provided in subdivision (b) of this rule. The plaintiff’s attorney shall deliver to the person who is to make service the original summons or a copy upon which to make a return of service and a copy of the summons and of the complaint for service upon the defendant.
(b) Same: Form. The summons shall be signed by the plaintiff’s attorney, or, if the plaintiff has no attorney, by any Superior Judge or a judge or the clerk of the court to which it is returnable. It shall contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, and the time within which these rules require the defendant to appear and defend, and shall notify defendant that in case of the defendant’s failure to do so judgment by default will be rendered against the defendant for the relief demanded in the complaint.
(c) By Whom Served. Service of all process shall be made by a sheriff or deputy sheriff, by a constable or other person authorized by law, or by some indifferent person specially appointed for that purpose by any superior judge, or a judge of the court to which it is returnable, except that process served under subdivision (f), or a notice and request sent pursuant to subdivision (l), of this rule may be deposited in the mail by plaintiff or plaintiff’s attorney and a subpoena may be served as provided in Rule 45. Special appointments to serve process shall be made freely when substantial savings in travel fees will result.
(d) Summons: Personal Service Within the State. The summons and complaint shall be served together. Personal service within the state shall be made as follows:
(1) Upon an individual by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process, provided that if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given. The court, on motion, upon a showing that service as prescribed above cannot be made with due diligence, may order service to be made by leaving a copy of the summons and of the complaint at the defendant’s dwelling house or usual place of abode, or to be made by publication pursuant to subdivision (g) of this rule, if the court deems publication to be more effective. If the individual is an infant or incompetent person, process may be served upon the individual by one of the foregoing methods, or as follows:
(i) Upon an infant by delivering a copy of the summons and of the complaint personally (a) to the infant and (b) also to the infant’s guardian if the infant has one within the state, known to the plaintiff, and if not, then the infant’s father or mother or other person having the infant’s care or control, or with whom the infant resides, or if service cannot be made upon any of them, then as provided by order of the court.
(ii) Upon an incompetent person by delivering a copy of the summons and of the complaint personally (a) to the guardian of that person or a competent adult member of that person’s family with whom that person resides, or if that person is living in an institution, then to the director or chief executive officer of the institution, or if service cannot be made upon any of them, then as provided by order of the court and (b) unless the court otherwise orders, also to the incompetent.
(2) Upon the State of Vermont or any agency or officer thereof, by delivering a copy of the summons and of the complaint to the Attorney General or the Deputy Attorney General.
(3) Upon a county, by delivering a copy of the summons and of the complaint to the county clerk or the county treasurer.
(4) Upon a town, by delivering a copy of the summons and of the complaint to the clerk, treasurer, manager, or one of the selectmen.
(5) Upon a city, by delivering a copy of the summons and of the complaint to the clerk, treasurer, or manager.
(6) Upon any other public corporation, body, or authority, by delivering a copy of the summons and of the complaint to any officer, director, superintendent, or manager thereof.
(7) Upon a domestic or foreign private corporation, by delivering a copy of the summons and of the complaint to an officer, a director, a managing or general agent, a superintendent, or to any other agent authorized by appointment or by law to receive service of process, provided that any further notice required by a statute authorizing an agent to receive service shall also be given. For purposes of this paragraph the officers of a national bank shall include the cashier and assistant cashiers thereof. If none of the foregoing persons is present in the state, such copies may be delivered to any person in the actual employment of the corporation or to one of the stockholders, or, if no such person be found, may be left at an office or place of business of the corporation within the state.
(8) Upon a partnership or unincorporated association or joint stock company, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, a superintendent, any member thereof, or any other agent authorized by appointment or by law to receive service of process, provided that any further notice required by a statute authorizing an agent to receive service shall also be given.
(e) Personal Service Outside the State. A person whose contact or activity in the state or such contact or activity imputable to that person is sufficient to support a personal judgment against that person may be served with the summons and the complaint outside the state, in the same manner as if such service were made within the state, by any person authorized to serve civil process by the laws of the place of service or by a person specially appointed to serve it. An affidavit of the person making service shall be filed with the court, stating the time, manner, and place of service. Such service has the same force and effect as personal service within the state.
(f) Service by Mail.
(1) Where service cannot with due diligence be made personally within or outside the state, service of the summons and complaint may be made by mail upon a person described in subdivision (e) in the following cases:
(A) Where the person to be served has an interest in, title to, or right to the possession of goods, chattels, rights, credits, land, tenements, or hereditaments in the state which has been or on pending motion may be attached or secured by trustee process in the commencement of the action, or will be affected by a judgment in the action;
(B) Where the person to be served is one against whom a judgment for divorce or annulment of marriage is sought. Such service shall be by delivery to the defendant outside the state by registered or certified mail, with restricted delivery and return receipt requested. Service by registered or certified mail under this paragraph shall be complete when the registered or certified mail is delivered and the return receipt signed or when acceptance is refused, provided that the plaintiff shall file with the court an affidavit setting forth the efforts made to obtain personal service and either the return receipt or, if acceptance was refused, an affidavit that upon notice of such refusal a copy of the summons and complaint was sent to the defendant by ordinary first class mail.
(2) When service may be made upon an officer of the state as a statutory agent for the service of process pursuant to paragraph (1), (7) or (8) of subdivision (d), service in accordance with the applicable statute may be made by mailing a copy of the summons and of the complaint by first class mail, postage prepaid, to the officer. Such service shall be by delivery to the defendant outside the state by registered or certified mail, with restricted delivery and return receipt requested. Service by registered or certified mail shall be complete when the registered or certified mail is delivered and the return receipt signed or when acceptance is refused, provided that the plaintiff shall file with the court an affidavit setting forth the efforts made to obtain personal service and either the return receipt or, if acceptance was refused, an affidavit that upon notice of such refusal a copy of the summons and complaint was sent to the defendant by ordinary first class mail.
(g) Service by Publication.
(1) When Service May Be Made. At any time after the filing of the complaint, the court, on motion upon a showing made by verified complaint or affidavit duly filed that service cannot with due diligence be made by another prescribed method, shall order service by publication when the person to be served is one described in subdivision (e) of this rule, unless a statute provides another method of notice.
(2) Contents of Order. An order for service by publication shall include (i) a brief statement of the object of the action; (ii) if the action places in issue the title or interest of the defendant to any property, a description of any such property; and (iii) the substance of the summons prescribed by subdivision (b) of this rule. The order shall also direct its publication once a week and at least seven days apart for 2 or more successive weeks in a designated newspaper or newspapers of general circulation reasonably calculated to give notice to the defendant; and the order shall also direct the mailing to the defendant, if an address is known, of a copy of the order as published.
(3) Time of Publication; When Service Complete. The first publication of the summons shall be made within 20 days after the order is granted. Service by publication is complete on the twenty-first day after the first publication. The plaintiff shall file with the court an affidavit that publication has been made.
(h) Territorial Limits of Effective Service. All process may be served anywhere within the territorial limits of the state.
(i) Return of Service. The person serving the process shall make proof of service thereof on the original process or a paper attached thereto for that purpose, and shall forthwith return it, with that person’s fees, charges and mileage indorsed thereon, to the plaintiff’s attorney. The plaintiff’s attorney shall, within the time during which the person served must respond to the process, file the proof of service with the court. The attorney’s filing of such proof of service with the court shall constitute a representation by the attorney, subject to the obligations of Rule 11, that the copy of the complaint delivered to the officer for service was a true copy. If service is made by a person other than a sheriff or deputy sheriff or a constable authorized by law, that person shall make proof thereof by affidavit. Failure to make proof of service shall not affect the validity of the service. The officer or other person serving the process shall indorse the date of service upon the copy left with the defendant or other person. Failure to indorse the date of service shall not affect the validity of service.
(j) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.
(k) Alternative Provisions for Service in a Foreign Country.
(1) Manner. When service is to be effected upon a party in a foreign country, it is also sufficient if service of the summons and complaint is made: (A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or (B) as directed by the foreign authority in response to a letter rogatory, when service in either case is reasonably calculated to give actual notice; or (C) upon an individual, by delivery to the individual personally, and upon a corporation or partnership or association, by delivery to an officer, a managing or general agent; or (D) by any form of mail, requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or (E) as directed by order of the court. Service under (C) or (E) above may be made by any person who is not a party and is not less than 18 years of age or who is designated by order of the court or by the foreign court. On request, the clerk shall transmit the summons to the person or the foreign court or officer who will make the service.
(2) Return. Proof of service may be made as prescribed by subdivision (i) of this rule, or by the law of the foreign country, or by order of the court. When service is made pursuant to subparagraph (1)(D) of this subdivision, proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.
(l) Waiver of Service; Duty to Save Costs of Service; Request to Waive.
(1) Objections Not Waived. A defendant who waives service of a summons does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant.
(2) Authorization; Duty to Save Costs. When an action has been commenced by filing the complaint, and the summons and complaint may be served within or without the state by personal service under subdivisions (d) or (e) of this rule, notice may be given as provided in this subdivision instead. However, notice may not be given under this subdivision to an infant or incompetent person. A defendant who receives notice of an action in the manner provided in this subdivision has a duty to avoid unnecessary costs of serving the summons. To avoid costs, the plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons.
(3) Method. The notice and request given under this subdivision
(A) shall be in writing and shall be addressed directly to the defendant, if an individual, or else to any other person authorized under subdivision (d) of this rule to receive service of process on behalf of a defendant who is not an individual, provided that notice may not be given hereunder to a public officer who is designated by statute as an agent to receive service of process;
(B) shall be dispatched through first class mail or other reliable means;
(C) shall be accompanied by a copy of the complaint and shall identify the court in which it has been filed;
(D) shall inform the defendant, by means of a form conforming substantially to Forms 1B and 1C as contained in the Appendix of Forms to these rules, of the consequences of compliance and of a failure to comply with the request;
(E) shall set forth the date on which the request is sent;
(F) shall allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent, or 60 days from that date if the defendant is addressed outside any state or territory of the United States; and
(G) shall provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.If a defendant located within any state or territory of the United States fails to comply with a request for waiver made by a plaintiff located within any state or territory of the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown.
(4) Effect of Waiver: Time for Answer. A defendant that, before being served with process, timely returns a requested waiver signed and dated personally or by a person to whom a notice and request may be addressed under subparagraph (3)(A) is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent, or 90 days after that date if the defendant was addressed outside any state or territory of the United States.
(5) Same: Action to Proceed. When the plaintiff files a waiver of service with the court, the action shall proceed, except as provided in paragraph (4), as if a summons and complaint had been served at the time of filing the waiver, and no proof of service shall be required.
(6) Costs for Failure to Waive. The costs to be imposed on a defendant under paragraph (3) for failure to comply with a request to waive service of a summons shall include the costs subsequently incurred in effecting service under subdivision (d)-(g) or (k), together with the costs, including a reasonable attorney’s fee, of any motion required to collect the costs of service.Amended March 12, 1975, eff. April 1, 1975; Oct. 30, 1979, eff. Dec. 3, 1979; Jan. 9, 1985; April 3, 1986; Nov. 25, 1986, eff. March 1, 1987. Amended Jan. 20, 1992, eff. March 2, 1992; Feb. 22, 1996, eff. July 1, 1996.
Rule 45. Subpoena
(a) Form; Issuance.
(1) Every subpoena shall
(A) state the name of the court from which it is issued; and
(B) state the title of the action, the name of the court in which it is pending, and its civil action number; and
(C) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and
(D) set forth the text of subdivisions (c) and (d) of this rule.A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately.
(2) A subpoena may issue from the court in any county.
(3) The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney, a notary public, or a magistrate may also issue and sign a subpoena.
(b) Service.
(1) A subpoena may be served by any person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law. Prior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5 (b).
(2) A subpoena may be served at any place within the state.
(3) Proof of service when necessary shall be made by filing with the clerk of the court for which the subpoena is issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service.
(c) Protection of Persons Subject to Subpoenas.
(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court for which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.
(2)(A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.
(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court for which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.
(3)(A) On timely motion, the court for which a subpoena was issued shall quash or modify the subpoena if it
(i) fails to allow reasonable time for compliance;
(ii) requires a resident of this state to travel to attend a deposition more than 50 miles one way unless the court otherwise orders; requires a nonresident of this state to travel to attend a deposition at a place more than 50 miles from the place of service unless another convenient place is fixed by order of court, or
(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or
(iv) subjects a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or
(ii) requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 50 miles one way to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.
(d) Duties in Responding to Subpoena.
(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.
(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.
(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court for which the subpoena issued. Adequate excuse for failure to obey exists when a subpoena purports to require a nonparty to attend or produce at a place not within the limits provided by clause (ii) of subparagraph (c)(3)(A). The provisions of 12 V.S.A. §§ 1623-1624 shall apply to failure by any person without adequate excuse to obey a subpoena served upon that person.
(f) Failure To Appear. The provisions of 12 V.S.A. §§ 1623-1624 shall apply to failure by any person without adequate excuse to obey a subpoena served upon that person.Amended Dec. 28, 1981, eff. March 1, 1982. Amended Nov. 4, 1994, eff. March 1, 1995.
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Wyoming Foreclosure Process Server Laws
By admin | April 9, 2010
Rule 4. Process.(a) Issuance of summons.Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the sheriff or to a person specially appointed to serve it. Upon request of the plaintiff separate or additional summons shall issue against any defendants.(b) Form of summons. The summons shall be signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address, and the time within which these rules require the defendant to appear and defend, and shall notify the defendant that in case of the defendant’s failure to do so judgment by default will be rendered against the defendant for the relief demanded in the complaint.(c) By whom served. Process may be served:(1) Within the state, by the sheriff of the county where the service is made, or by the undersheriff or deputy, or, at the request of the party causing same to be issued, by any other person of the age of majority, not a party to the action, appointed for such purpose by the clerk;(2) In another state or United States territory, by the sheriff of the county where the service is made, or by the undersheriff or deputy, or by a United States marshal, or the deputy, or any other person of the age of majority, not a party to the action, appointed for such purpose by the clerk;(3) In a foreign country, by any citizen of the United States of the age of majority appointed for such purpose by the clerk;(4) In the event service is made by a person other than an officer, the amount of costs assessed therefor, if any, against any adverse party shall be within the discretion of the court.(d) Personal service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:(1) In the event service is made by a person other than an officer, the amount of costs assessed therefor, if any, against any adverse party shall be within the discretion of the court.(2) Upon a person under 14 years of age or an incompetent person, by serving the same upon the guardian or, if no guardian has been appointed in this state, then upon the person having legal custody and control or upon a guardian ad litem;(3) Upon a partnership, or other unincorporated association, by delivery of copies to one or more of the partners or associates, or a managing or general agent thereof, or agent for process, or by leaving same at the usual place of business of such defendant with any employee then in charge thereof;(4) Upon a corporation, by delivery of copies to any officer, manager, general agent, or agent for process. If no such officer, manager or agent can be found in the county in which the action is brought such copies may be delivered to any agent or employee found in such county. If such delivery be to a person other than an officer, manager, general agent or agent for process, the clerk, at least 20 days before default is entered, shall mail copies to the corporation by registered or certified mail and marked “restricted delivery” with return receipt requested, at its last known address;(5) Upon a department or agency of the state, a municipal or other public corporation, by delivering a copy of the summons and of the complaint to the chief executive officer thereof, or to its secretary, clerk, person in charge of its principal office or place of business, or any member of its governing body;(6) Upon the secretary of state, as agent for a party, when and in the manner authorized by statute.(e) Service by publication. Service by publication may be had where specifically provided for by statute, and in the following cases:(1) When the defendant resides out of the state, or the defendant’s residence cannot be ascertained, and the action is:(i) For the recovery of real property or of an estate or interest therein;(ii) For the partition of real property;(iii) For the sale of real property under a mortgage, lien or other encumbrance or charge;(iv) To compel specific performance of a contract of sale of real estate;(2) In actions to establish or set aside a will, where the defendant resides out of the state, or the defendant’s residence cannot be ascertained;(3) In actions in which it is sought by a provisional remedy to take, or appropriate in any way, the property of the defendant, when the defendant is a foreign corporation, or a nonresident of this state, or the defendant’s place of residence cannot be ascertained, and in actions against a corporation incorporated under the laws of this state, which has failed to elect officers, or to appoint an agent, upon whom service of summons can be made as provided by these rules and which has no place of doing business in this state;(4) In actions which relate to, or the subject of which is real or personal property in this state, when a defendant has or claims a lien thereon, or an actual or contingent interest therein or the relief demanded consists wholly or partly in excluding the defendant from any interest therein, and such defendant is a nonresident of the state, or a dissolved domestic corporation which has no trustee for creditors and stockholders, who resides at a known address in Wyoming, or a domestic corporation which has failed to elect officers or appoint other representatives upon whom service of summons can be made as provided by these rules, or to appoint an agent as provided by statute, and which has no place of doing business in this state, or a domestic corporation, the certificate of incorporation of which has been forfeited pursuant to law and which has no trustee for creditors and stockholders who resides at a known address in Wyoming, or a foreign corporation, or defendant’s place of residence cannot be ascertained;(5) In actions against personal representatives, conservators, or guardians, when the defendant has given bond as such in this state, but at the time of the commencement of the action is a nonresident of the state, or the defendant’s place of residence cannot be ascertained;(6) In actions where the defendant, being a resident of this state, has departed from the county of residence with the intent to delay or defraud the defendant’s creditors, or to avoid the service of process, or keeps concealed with like intent;(7) When an appellee has no attorney of record in this state, and is a nonresident of, and absent from the same, or has left the same to avoid the service of notice or process, or the appellee keeps concealed so that notice or process cannot be served;(8) In an action or proceeding under Rule 60 hereof, to modify or vacate a judgment after term of court, or to impeach a judgment or order for fraud, or to obtain an order of satisfaction thereof, when a defendant is a nonresident of the state or the defendant’s residence cannot be ascertained;(9) In suits for divorce, for alimony, to affirm or declare a marriage void, or the modification of any decree therefor entered in such suit, when the defendant is a nonresident of the state, or the defendant’s residence cannot be ascertained, or the defendant keeps concealed in order to avoid service of process;(10) In actions for adoption or for the termination of parental rights;(11) In all actions or proceedings which involve or relate to the waters, or right to appropriate the waters of the natural streams, springs, lakes, or other collections of still water within the boundaries of the state, or which involve or relate to the priority of appropriations of such waters including appeals from the determination of the state board of control, and in all actions or proceedings which involve or relate to the ownership of means of conveying or transporting water situated wholly or partly within this state, when the defendant or any of the defendants are nonresidents of the state or the defendant’s residence or their residence cannot be ascertained.(f) Requirements for service by publication. Before service by publication can be made, an affidavit of the party, or the party’s agent or attorney, must be filed stating that service of a summons cannot be made within this state, on the defendant to be served by publication, and stating the defendant’s address, if known, or that the defendant’s address is unknown and cannot with reasonable diligence be ascertained, detailing the efforts made to obtain an address, and that the case is one of those mentioned in subdivision (e); and when such affidavit is filed, the party may proceed to make service by publication. In any case in which service by publication is made when the address of a defendant is known, it must be stated in the publication. Immediately after the first publication the party making the service shall deliver to the clerk copies of the publication, and the clerk shall mail a copy to each defendant whose name and address is known by registered or certified mail and marked “Restricted Delivery” with return receipt requested, directed to the defendant’s address named therein, and make an entry thereof on the appearance docket. In all cases in which a defendant is served by publication of notice and there has been no delivery of the notice mailed to the defendant by the clerk, the party who makes the service, or the party’s agent or attorney, at the time of the hearing and prior to entry of judgment, shall make and file an affidavit stating the address of such defendant as then known to the affiant, or if unknown, that the affiant has been unable to ascertain the same with the exercise of reasonable diligence, detailing the efforts made to obtain an address. Such additional notice, if any, shall then be given as may be directed by the court.(g) Publication of notice. The publication must be made by the clerk for four consecutive weeks in a newspaper published in the county where the complaint is filed; or if there is no newspaper published in the county, then in a newspaper published in this state, and of general circulation in such county; if it be made in a daily newspaper, one insertion a week shall be sufficient; and it must contain a summary statement of the object and prayer of the complaint, mention the court wherein it is filed, and notify the person or persons thus to be served when they are required to answer, and that judgment by default may be rendered against them if they fail to appear.(h) When service complete; how proved. Service by publication shall be deemed complete at the date of the last publication, when made in the manner and for the time prescribed in the preceding subdivisions; and such service shall be proved by affidavit.(i) Service upon unknown persons. When an heir, devisee, or legatee of a deceased person, or a bondholder, lienholder or other person claiming an interest in the subject matter of the action is a necessary party, and it appears by affidavit that the person’s name and address are unknown to the party making service, proceedings against the person may be had by designating the person as an unknown heir, devisee or legatee of a named decedent or defendant, or in other cases as an unknown claimant, and service by publication may be had as provided in these rules for cases in which the names of the defendants are known.(j) Publication may be made in another county. When it is provided by rule or statute that a notice shall be published in a newspaper, and no such paper is published in the county, or if such paper is published there and the publisher refuses, on tender of the publisher’s usual charge for a similar notice, to insert the same in the publisher’s newspaper, then a publication in a newspaper of general circulation in the county shall be sufficient.(k) Costs of publication. The lawful rates for any legal notice published in any qualified newspaper in this state in connection with or incidental to any cause or proceeding in any court of record in this state shall be and become a part of the court costs in such action or proceeding, which costs shall be paid to the clerk of the court in which such action or proceeding is pending by the party causing such notice to be published and finally assessed as the court may direct.(l) Other service; personal service outside the state; service by registered or certified mail. In all cases where service by publication can be made under these rules, or where a statute permits service outside this state, the plaintiff may obtain service without publication by either of the following methods:(1) Personal Service Outside the State. By delivery to the defendant of copies of the summons and complaint.(2) Service by Registered or Certified Mail. Upon the request of any party the clerk shall send by registered or certified mail a copy of the complaint and summons addressed to the party to be served at the address given in the affidavit required under subdivision (f). The mail shall be sent marked “Restricted Delivery”, requesting a return receipt signed by the addressee or the addressee’s agent who has been specifically authorized in writing by a form acceptable to, and deposited with, the postal authorities. When such return receipt is received signed by the addressee or the addressee’s agent the clerk shall file the same and enter a certificate in the cause showing the making of such service.(m) Return; proof of service..(1) Return. The person serving the process shall make proof of service thereof to the court promptly and in any event within the time during which the person served must respond to the process. Failure to make proof of service does not affect the validity of the service.(2) Proof of Service. Proof of service of process shall be made as follows:(i) If served by a Wyoming sheriff, undersheriff or deputy by a certificate with a statement as to date, place and manner of service, except that a special deputy appointed for the sole purpose of making service shall make proof by the special deputy’s affidavit containing such statement;(ii) If by any other person, by the person’s affidavit thereof with a statement as to date, place and manner of service;(iii) If by registered or certified mail, by the certificate of the clerk showing the date of the mailing and the date the clerk received the return receipt;(iv) If by publication, by the affidavit of publication together with the certificate of the clerk as to the mailing of copies where required;(v) By the written admission, acceptance or waiver of service by the person to be served, duly acknowledged.(n) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.(o) Waiver of service; duty to save costs of service; request to waive.(1) A defendant who waives service of a summons does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant.(2) An individual, corporation, or partnership or other unincorporated association that is subject to service under subdivision (d)(1), (d)(3), or (d)(4) and that receives notice of an action in the manner provided in this paragraph has a duty to avoid unnecessary costs of serving the summons. To avoid costs, the plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons. The notice and request:(A) Shall be in writing and shall be addressed directly to the defendant, if an individual, or else to an officer, manager, general agent, or agent for process, if a corporation, or else to one or more of the partners or associates, or a managing or general agent, or agent for process, if a partnership or other unincorporated association;(B) Shall be dispatched through first-class mail or other reliable means;(C) Shall be accompanied by a copy of the complaint and shall identify the court in which it has been filed;(D) Shall inform the defendant, by means of a text prescribed in an official form promulgated pursuant to Rule 84, of the consequences of compliance and of a failure to comply with the request;(E) Shall set forth the date on which the request is sent;(F) Shall allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent, or 60 days from that date if the defendant is addressed outside the United States; and(G) Shall provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing. If a defendant located within the United States fails to comply with a request for waiver made by a plaintiff located within the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown.(3) A defendant that, before being served with process, timely returns a waiver so requested is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent, or 90 days after that date if the defendant was addressed outside the United States.(4) When the plaintiff files a waiver of service with the court, the action shall proceed, except as provided in paragraph (3), as if a summons and complaint had been served at the time of filing the waiver, and no proof of service shall be required.(5) The costs to be imposed on a defendant under paragraph (2) for failure to comply with a request to waive service of a summons shall include the costs subsequently incurred in effecting service under subdivision (d)(1), (d)(3), (d)(4), (e), (f), (g), or (l), together with the costs, including a reasonable attorney’s fee, of any motion required to collect the costs of service. (Amended November 7, 1960, effective March 21, 1961; amended October 21, 1970, effective February 11, 1971; amended July 15, 1975, effective November 13, 1975; amended January 11, 1995, effective April 11, 1995.) (Amended November 7, 1960, effective March 21, 1961; amended October 21, 1970, effective February 11, 1971; amended July 15, 1975, effective November 13, 1975; amended January 11, 1995, effective April 11, 1995.)RULE 45 Subpoena(a) Form; issuance.(1) Every subpoena shall:(A) State the name of the court from which it issued; and(B) State the title of the action, the name of the court in which it is pending, and its civil action number; and(C) Command each person to whom it is directed to attend and give testimony by deposition or at trial or hearing, or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and(D) Set forth the text of subdivisions (c), (d) and (e) of this rule. A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately.(2) A subpoena shall issue from the court in which the action is pending.(3) A subpoena may be issued to command attendance or production at trial or hearing without notice to other parties. A subpoena to command attendance at deposition, or to produce and permit inspection and copying of designated books, documents or tangible things before trial or hearing, or to permit inspection of premises before trial or hearing, shall be issued only after or concurrently with reasonable notice, served in the manner prescribed by Rule 5(b), to all other parties to the action of the deposition, production or inspection.(4) The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney as officer of the court may also issue and sign a subpoena on behalf of a court in which the attorney is authorized to practice.(b) Service; place of attendance.(1) A subpoena may be served by the sheriff, by a deputy sheriff, or by any other person who is not a party and is not a minor, at any place within the State of Wyoming. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person’s attendance is commanded, by tendering to that person the statutory witness fees for one day’s attendance and the mileage allowed by law. The party subpoenaing any witness residing in a county other than that in which the action is pending shall pay to such witness, after the hearing or trial, the statutory per diem allowance for state employees for each day or part thereof necessarily spent by such witness in traveling to and from the court and in attendance at the hearing or trial.(2) Proof of service shall be made, when necessary, as provided in Rule 4(m), and cost shall be taxed as provided in Rule 4(c)(4).(3) A subpoena for trial or hearing may require the person subpoenaed to appear at the trial or hearing irrespective of the person’s place of residence, place of employment, or where such person regularly transacts business in person.(4) A person commanded by subpoena to appear at a deposition may be required to attend only in the county wherein that person resides or is employed or regularly transacts business in person, or at such other convenient place as is fixed by an order of court. A nonresident of the state may be required to attend only in the county wherein that nonresident is served with a subpoena or at such other convenient place as is fixed by an order of court.(c) Protection of persons subject to subpoenas.(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.(2)(A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.(B) Subject to subdivision (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it:(i) Fails to allow reasonable time for compliance;(ii) Requires, in the case of a deposition or production prior to hearing or trial, a person to travel outside that person’s county of residence or employment or a county where that person regularly transacts business in person; or(iii) Requires disclosure of privileged or other protected matter and no exception or waiver applies; or(iv) Subjects a person to undue burden.(B) If a subpoena:(i) Requires disclosure of a trade secret or other confidential research, development, or commercial information; or(ii) Requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party; or(iii) Requires a person who is not a party or an officer of a party to incur substantial expense to travel to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.(d) Duties in responding to subpoena.(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.(2) When information or material subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. Adequate causes for failure to obey include lack of personal service upon the person subpoenaed, and when a subpoena purports to require a person to attend a deposition or produce prior to hearing or trial at a place not within the limits provided by clause (ii) of subdivision (c)(3)(a).(Amended October 21, 1970, effective February 11, 1971; amended November 6, 1980, effective January 28, 1981; amended October 22, 1992, effective January 12, 1993.)
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