West Virginia Foreclosure Process Server Laws
By admin | April 9, 2010
Rule 3. Commencement of Action.Rule 4. Summons.Rule 4.1. Service of other process.Rule 5. Service and filing of pleadings and other papers.Rule 6. Time.
Rule 3. Commencement of Action.
(a) Complaint. A civil action is commenced by filing a complaint with the court.
(b) Civil case information statement. Every complaint shall be accompanied by a completed civil case information statement in the form prescribed by the Supreme Court of Appeals.
(c) Divorce complaints. Every divorce complaint involving spousal support, child support, child custody, or child visitation shall be accompanied by an application for services pursuant to Title IV-D of the Social Security Act and no hearing shall be conducted, except upon motion for emergency temporary relief, until an application for services pursuant to the Title IV-D of the Social Security Act has been filed. (Effective April 6, 1998).
Rule 4. Summons.
(a) Form. The summons shall be signed by the clerk, bear the seal of the court, identify the court and the parties, be directed to the defendant, and state the name and address of the plaintiff’s attorney or, if unrepresented, of the plaintiff. It shall also state the time within which the defendant must appear and defend, and notify the defendant that failure to do so will result in a judgment by default against the defendant for the relief demanded in the complaint. The court may allow a summons to amended.
(b) Issuance. Upon the filing of the complaint, the clerk shall forthwith issue a summons to be served as directed by the plaintiff. A summons, or a copy of the summons if addressed to multiple defendants, shall be issued for each defendant to be served.
(c) Service with complaint; by whom made.(1) A summons shall be served together with a copy of the complaint. The plaintiff is responsible for directing the clerk in the manner of service of the summons and complaint within the time allowed under subdivision (k).(2) Service may be effected by any person who is not a party and who is at least 18 years of age.(3) At the request of the plaintiff and upon payment of the applicable fees and costs of service, the clerk shall:(A) Deliver the summons and complaint to the sheriff for service as directed by the plaintiff; or(B) Make service by either certified mail or by the first class mail as directed by plaintiff; or(C) Forward a copy of the summons and complaint to the Secretary of State, as statutory attorney-in-fact, for service as specified by any applicable statute.
(d) Manner of service. Personal or substituted service shall be made in the following manner:(1) Individuals. — Service upon an individual other than an infant, incompetent person, or convict may be made by:(A) Delivering a copy of the summons and complaint to the individual personally; or(B) Delivering a copy of the summons and complaint at the individual’s dwelling place or usual place of abode to a member of the individual’s family who is above the age of sixteen (16) years and by advising such person of the purport of the summons and complaint; or(C) Delivering a copy of the summons and complaint to an agent or attorney-in-fact authorized by appointment of statute to receive or accept service of the summons and complaint in the individual’s behalf; or(D) The clerk sending a copy of the summons and complaint to the individual to be served by certified mail, return receipt requested, and delivery restricted to the addressee; or(E) The clerk sending a copy of the summons and complaint by first class mail, postage prepaid, to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to Form 14 and a return envelope, postage prepaid, addressed to the clerk.Service pursuant to subdivision (d)(1)(D) shall not be the basis for the entry of a default unless the record contains a return receipt showing acceptance by the defendant or a return envelope showing refusal of the registered or certified mail by the defendant. If delivery of the summons and complaint pursuant to subdivision (d)(1)(D) is refused, the clerk, promptly upon receipt of the notice of such refusal, shall mail to the defendant, by first class mail, postage prepaid, a copy of the summons and complaint and a notice that despite such refusal, the case will proceed and that judgment by default will be rendered against the defendant unless the defendant appears to defend the suit. Any such default or judgment by default shall be set aside pursuant to Rule 55(c) or Rule 60(b) if the defendant demonstrates to the court that the return receipt was signed by or delivery was refused by an unauthorized person. The notice and acknowledgment of receipt of the summons and complaint pursuant to subdivision (d)(1)(E) shall be executed in the manner prescribed on Form 14. Unless good cause is shown for failure to complete and return the notice and acknowledgment of receipt of the summons and complaint pursuant to subdivision (d)(1)(E) within twenty (20) days after mailing, the court may order the payment of cost of personal service by the person served. Service pursuant to subdivision (d)(1)(E) shall not be the basis for entry of default or a judgment by default unless the record contains a notice and acknowledgment of receipt of the summons and complaint. If no acknowledgment of service pursuant to subdivision (d)(1)(E) is received by the clerk within twenty (20) days after the date of mailing, service of such summons and complaint shall be made under subdivisions (d)(1)(A), (B), (C), or (D).(2) Infants and incompetents under 14 years. — Upon an infant or incompetent younger than 14 years of age, by delivering a copy of the summons and complaint to the infant’s or incompetent’s guardian or conservator resident in the State; or, if there be no such guardian or conservator, then to either the infant’s or incompetent’s father or mother if they be found. If there is no such guardian or conservator and if the father or mother cannot be found, service of the summons and complaint shall be made upon a guardian ad litem appointed under Rule 17(c). But if any of the persons upon whom service is directed to be made by this paragraph is a plaintiff, then service shall be upon the person who stands first in the order named in this paragraph who is not a plaintiff.(3) Infants and incompetents 14 years or older. — Upon an infant or incompetent 14 years of age or older, by making service as provided in paragraph (2) above, and in addition by making service upon the infant or incompetent as provided in paragraph (1) above.(4) Convicts. — Upon a person confined in the penitentiary of this or any other state, or of the United States, by delivering a copy of the summons and complaint to that person’s committee, guardian, or like fiduciary resident in the State; or, if there be no such committee, guardian, or like fiduciary, or if the committee, guardian, or like fiduciary is a plaintiff, service of process shall be made upon a guardian ad litem appointed under Rule 17(c).(5) Domestic private corporations. — Upon a domestic private corporation,(A) by delivering or mailing in accordance with paragraph (1) above a copy of the summons and complaint to an officer, director, or trustee thereof; or, if no such officer, director, or trustee be found, by delivering a copy thereof to any agent of the corporation including, in the case of a railroad company, a depot or station agent in the actual employment of the company; but excluding, in the case of an insurance company, a local or soliciting agent; or(B) by delivering or mailing in accordance with paragraph (1) above a copy thereof to any agent or attorney in fact authorized by appointment or by statute to receive or accept service in its behalf.(6) Domestic public corporations. –(A) Upon a city, town, or village, by delivering or mailing in accordance with paragraph (1) above a copy of the summons and complaint to its mayor, city manager, recorder, clerk, treasurer, or any member of its council or board of commissioners;(B) Upon a county commission of any county or other tribunal created to transact county business, by delivering or mailing in accordance with paragraph (1) above a copy of the summons and complaint to any commissioner or the clerk thereof or, if they be absent, to the prosecuting attorney of the county;(C) Upon a board of education, by delivering or mailing in accordance with paragraph (1) above a copy of the summons and complaint to the president or any member thereof or, if they be absent, to the prosecuting attorney of the county;(D) Upon any other domestic public corporation, (i) by delivering or mailing in accordance with paragraph (1) above a copy of the summons and complaint to any officer, director, or governor thereof, or (ii) by delivering or mailing in accordance with paragraph (1) above a copy thereof to an agent or attorney in fact authorized by appointment or by statute to receive or accept service in its behalf.(7) Foreign corporations and business trusts qualified to do business. — Upon a foreign corporation, including a business trust, which has qualified to do business in the State, by delivering or mailing in accordance with paragraph (1) above a copy of the summons and complaint as provided in Rule 4(d)(5).(8) Foreign corporations and business trusts not qualified to do business. — Upon a foreign corporation, including a business trust, which has not qualified to do business in the State,(A) by delivering or mailing in accordance with paragraph (1) above a copy of the summons and complaint to any officer, director, trustee, or agent of such corporation; or(B) by delivering or mailing in accordance with paragraph (1) above copies thereof to any agent or attorney in fact authorized by appointment or by statute to receive or accept service in its behalf.(9) Unincorporated associations. — Upon an unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and complaint to any officer, director, or governor thereof, or by delivering or mailing in accordance with paragraph (1) above a copy of the summons and complaint to any agent or attorney in fact authorized by appointment or by statute to receive or accept service in its behalf; or, if no such officer, director, governor, or appointed or statutory agent or attorney in fact be found, then by delivering or mailing in accordance with paragraph (1) above a copy of the summons and complaint to any member of such association and publishing notice of the pendency of such action once a week for two successive weeks in the newspaper of general circulation in the county wherein such action is pending. Proof of publication of such notice is made by filing the publisher’s certificate of publication with the court.
(e) Constructive service. –(1) Service by publication. — If the plaintiff shall file with the court an affidavit:(A) That the defendant is a foreign corporation or business trust for which no officer, director, trustee, agent, or appointed or statutory agent or attorney in fact is found in the State upon whom service may be had; or(B) That the defendant is a nonresident of the State for whom no agent, or appointed or statutory agent or attorney in fact is found in the State upon whom service may be had; or(C) That the plaintiff has used due diligence to ascertain the residence or whereabouts of the defendant, without effect; or(D) That process, delivered to the sheriff of the county in which the defendant resides or is, has twice been delivered to such officer and has been returned without being executed; or(E) That there are or may be persons, other than those named in the complaint as plaintiff and defendant, interested in the subject matter of the action, whose names are unknown to the plaintiff and who are made defendants by the general description of unknown defendants; then clerk shall enter an order of publication against such named and unknown defendants. Every order of publication shall state the title of the action; the object thereof; the name and address of the plaintiff’s attorney, if any; that a copy of the complaint may be obtained from the clerk; and that each named and unknown defendant must appear and defend on or before a date set forth in the order, which shall be not fewer than 30 days after the first publication thereof; otherwise, that judgment by default will be rendered against the defendants at any time thereafter. Every such order of publication shall be published once a week for two successive weeks (or for such period as may be prescribed by statute, whichever period is longer) in a newspaper of general circulation in the county wherein such action is pending. Proof of service by publication is made by filing the publisher’s certificate of publication with the court.(2) Service by mailing. — When plaintiff knows the residence of a defendant upon whom service has been unsuccessfully attempted as described in Rule 4(e)(1)(D), or when plaintiff knows the residence of a nonresident defendant or the principal office of a nonresident defendant foreign corporation or business trust for which no officer, director, trustee, agent, or appointed or statutory agent or attorney in fact is found in the State upon whom service may be had, plaintiff shall obtain constructive service of the summons and complaint upon such defendant by the method set forth in Rule 4 (d)(1)(D). The summons in such instance shall notify the defendant that the defendant must appear and defend within thirty days of the date of mailing pursuant to Rule 4(d)(1)(D); otherwise, that judgment by default will be rendered against the defendant at any time thereafter. However, service pursuant to Rule 4(d)(1)(D) shall not be the basis for the entry of a judgment by default unless the record contains a return receipt showing acceptance by the defendant or a return envelope showing refusal of the certified mail by the defendant. If delivery of the summons and complaint sent by the certified mail is refused, the clerk, promptly upon notice of such refusal, shall mail to the defendant, first class mail, postage prepaid, a copy of the summons and complaint and a notice that despite such refusal the case will proceed and that judgment by default will be rendered against defendant unless defendant appears to defend the suit. If plaintiff is unable to obtain service of the summons and complaint upon such defendant by use of the method set forth in Rule 4(d)(1)(D), then, upon affidavit to such effect filed with the court, the clerk shall issue an order of publication, and the procedures described in subdivision (e)(1) shall be followed to effectuate constructive service.
(f ) Personal service outside State. — Personal service of a copy of the summons and complaint may be made outside of this State on any defendant. If any such defendant be then a resident of this State and if the plaintiff shall during the pendency of the action file with the court an affidavit setting forth facts showing that the defendant is such a resident, such service shall have the same effect as personal service within this State and within the county of the defendant’s residence; otherwise, such service shall have the same effect as constructive service. In either case, the summons shall notify the defendant that the defendant must appear and defend within 30 days after service, otherwise judgment by default will be rendered against the defendant at any time thereafter.
(g) Summons; service thereof in addition to constructive service. — The plaintiff may, at any time before judgment, have a copy of the summons and complaint served on a defendant in the manner provided by subdivisions (d) or (f) of this rule, although constructive service under subdivision (e) of this rule has been made. After such service under subdivision (d) of this rule, the action shall proceed as in other cases of personal or substituted service within the State; and after such service under subdivision (f) of this rule, the action shall proceed as in other cases of personal or constructive service.
(h) Process part of record. — Summonses, complaints, proofs of service and returns endorsed thereon, all orders and notices served or published, all proofs of service and certificates of publication, and all other papers filed relating to such process, orders, and notices, are a part of the record of an action for all purposes.
(i) Proof of service or publication. — The person serving the process or order or publishing a notice or order shall make proof of service of publication to the court promptly and in any event within the time during which the person served must respond to the process, notice, or order. If service is made by a person other than the sheriff or clerk, that person shall make proof thereof by affidavit. Failure to make proof of service or publication within the time required does not affect the validity of the service of the process, notice, or order.
(j) Amendment. — At any time in its discretion and upon such terms as it deems just, the court may allow any process, notice, or order, or proof of service or publication thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process, notice, or order issued or was entered.
(k) 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 effective 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. ( Amended effective April 6, 1998.)
Rule 4.1. Service of other process.
(a) Generally. — Whenever an order of court provides for service of a rule, or order in lieu of summons or a rule, upon a party, service shall be made in the manner provided in Rule 4(d), unless the order prescribes a different mode of service. Rule 45 governs the service of subpoenas.
(b) Process part of record. — Original, mesne, and final writs and process of every nature, and proofs of service and returns endorsed thereon, and all orders and notices served or published, and all proofs of service and certificates of publication and all other papers filed in relation to such process, orders, and notices, are a part of the record of an action for all purposes. (Added effective April 6, 1998.)
Rule 5. Service and filing of pleadings and other papers.
(a) Service: when required. — Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. For purposes of this rule, guardians ad litem are considered parties. 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 for service of summons in Rule 4.
(b) Same: how made. — Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party; or by mailing it to the attorney or party at the attorney’s or party’s last-known address, or, if no address is known, by leaving it with the clerk of the court; or by facsimile transmission to the attorney or party pursuant to the West Virginia Supreme Court of Appeals Rules for Filing and Service by Facsimile Transmission. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at the attorney’s or party’s office with a clerk or other person in charge thereof; or, if the office is closed or the person to be served has no office, leaving it at the person’s dwelling house or usual place of abode with some member of the person’s family above the age of 16 years. Service by mail is complete upon mailing.
(c) Same: numerous defendants. — In any action is which there are unusually large numbers of defendants, the court, upon motion of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and 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 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; certificate of service. –(1) All papers after the complaint required to be served upon a party together with a certificate of service, shall be filed with the court within a reasonable time after service.(2) Unless filing is required by the court on motion or upon its own initiative, depositions, interrogatories, requests for admissions, requests for production and entry, and answers and responses thereto shall not be filed. Unless required to be filed for issuance of a subpoena for a deposition, a notice of deposition need not be filed. Certificates of service of discovery materials shall be filed.(3) Unless otherwise stipulated or ordered, the party taking the deposition or obtaining any material through discovery is responsible for its custody, preservation, and delivery to the court if needed or ordered. Such responsibility shall not terminate until one year after final disposition of the action. The responsibility shall not terminate upon dismissal of any party while the action is pending. The custodial responsibility of a dismissed party may be discharged by stipulation of the parties to transfer the custody of the discovered material to one or more of the remaining parties.
(e) Filing with the court defined. — The filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court, who shall note thereon the filing date, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk; the notation by the clerk or the judge of the filing date on any such paper constitutes the filing of such paper, and such paper then becomes a part of the record in the action without any order of the court. Filing by facsimile is permitted pursuant to the West Virginia Supreme Court of Appeals rules for Filing and Service by Facsimile Transmission. (Amended effective April 6, 1998.)
Rule 6. Time.
(a) Computation. — In computing any period of time prescribed or allowed by these rules, by the local rules of any court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday. When the period of time prescribed or allowed is fewer than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), “legal holiday” includes New Year’s Day, Martin Luther King’s Birthday, Lincoln’s Birthday, Washington’s Birthday, Memorial Day, West Virginia Day, Independence Day, Labor Day, Columbus Day, Veteran’s Day, Thanksgiving Day, Christmas Day, any day on which a general, special or primary election is held in the state or in the county in which the circuit court sits, and any other day appointed as a holiday by the Governor or by the President of the United States as a day of special observance or Thanksgiving, or a day for the general cessation of business.
(b) Enlargement. — When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, all the parties to the action, by written stipulation filed with the court, may agree at any time to a different period, or the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; buy it may not extend the time for taking any action under Rules 50(b), 52(b), 59(b),(d) and (e); and 60(b), except to the extent and under the conditions stated in them.
(c) Unaffected by expiration of term. — The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a term of court. The continued existence of expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action which has been pending before it.
(d) For motions — affidavits. –(1) Service; motion. — Unless a different period is set by these rules or by the court, a written motion (other than one which may be heard ex parte), notice of the hearing on the motion, and any supporting brief or affidavits shall be served as follows:(A) at least 9 days before the time set for the hearing, if served by mail, or(B) at least 7 days before the time set for the hearing, if served by hand delivery or by fax to the opposing attorney, or if left with a person in charge at the opposing attorney’s office, or in the event that the opposing party is not represented by counsel, then if served by hand delivery or by fax to the opposing party, or if left at the party’s usual residence with a person capable of accepting service pursuant to Rule 4(d)(1)(B).(2) Service; response. — Unless a different period is set by these rules or by the court, any response to a written motion, including any supporting brief or affidavits, shall be served as follows:(A) at least 4 days before the time set for the hearing, if served by mail, or(B) at least 2 days before the time set for the hearing, if served by hand delivery or by fax to the opposing attorney, or if left with a person in charge at the opposing attorney’s office, or in the event that the opposing party is not represented by counsel, then if served by hand delivery or by fax to the opposing party, or if left at the party’s usual residence with a person capable of accepting service pursuant to Rule 4(d)(1)(B).(3) Filing. — Unless the court sets a different period, a written motion, notice of hearing on the motion, and any supporting briefs or affidavits shall be filed at least 7 days before the hearing, and any response to a motion and supporting briefs or affidavits shall be filed at least 2 days before the hearing.
(e) Additional time after service by mail. — Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period. (Amended effective April 6, 1998.)
For additional Rules of Civil Procedure, go to www.legis.state.wv.us/[/url]
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Illinois Foreclosure Process Server Laws
By admin | April 9, 2010
Chapter 735. Civil Procedure735 ILCS 5/2-201. Commencement of actions – Forms of process.(a) Every action, unless otherwise expressly provided by statute, shall be commenced by the filing of a complaint. The clerk shall issue summons upon request of the plaintiff. The form and substance of the summons, and of all other process, and the issuance of alias process, and the service of copies of pleadings shall be according to rules.(b) One or more duplicate original summonses may be issued, marked “First Duplicate,” “Second Duplicate,” etc., as the case may be, whenever it will facilitate the service of summons in any one or more counties, including the county of venue.735 ILCS 5/2-202. Persons authorized to serve process; Place of service; Failure to make return.(a) Process shall be served by a sheriff, or if the sheriff is disqualified, by a coroner of some county of the State. A sheriff of a county with a population of less than 1,000,000 may employ civilian personnel to serve process. In counties with a population of less than 1,000,000, process may be served, without special appointment, by a person who is licensed or registered as a private detective under the Private Detective, Private Alarm, Private Security, and Locksmith Act of 1993 or by a registered employee of a private detective agency certified under that Act. A private detective or licensed employee must supply the sheriff of any county in which he serves process with a copy of his license or certificate; however, the failure of a person to supply the copy shall not in any way impair the validity of process served by the person. The court may, in its discretion upon motion, order service to be made by a private person over 18 years of age and not a party to the action. It is not necessary that service be made by a sheriff or coroner of the county in which service is made. If served or sought to be served by a sheriff or coroner, he or she shall endorse his or her return thereon, and if by a private person the return shall be by affidavit.(a- 5) Upon motion and in its discretion, the court may appoint as a special process server a private detective agency certified under the Private Detective, Private Alarm, Private Security, and Locksmith Act of 1993. Under the appointment, any employee of the private detective agency who is registered under that Act may serve the process. The motion and the order of appointment must contain the number of the certificate issued to the private detective agency by the Department of Professional Regulation under the Private Detective, Private Alarm, Private Security, and Locksmith Act of 1993.(b) Summons may be served upon the defendants wherever they may be found in the State, by any person authorized to serve process. An officer may serve summons in his or her official capacity outside his or her county, but fees for mileage outside the county of the officer cannot be taxed as costs. The person serving the process in a foreign county may make return by mail.(c) If any sheriff, coroner, or other person to whom any process is delivered, neglects or refuses to make return of the same, the plaintiff may petition the court to enter a rule requiring the sheriff, coroner, or other person, to make return of the process on a day to be fixed by the court, or to show cause on that day why that person should not be attached for contempt of the court. The plaintiff shall then cause a written notice of the rule to be served on the sheriff, coroner, or other person. If good and sufficient cause be not shown to excuse the officer or other person, the court shall adjudge him or her guilty of a contempt, and shall impose punishment as in other cases of contempt.(d) If process is served by a sheriff or coroner, the court may tax the fee of the sheriff or coroner as costs in the proceeding. If process is served by a private person or entity, the court may establish a fee therefor and tax such fee as costs in the proceedings.(e) In addition to the powers stated in Section 8.1a of the Housing Authorities Act, in counties with a population of 3,000,000 or more inhabitants, members of a housing authority police force may serve process for forcible entry and detainer actions commenced by that housing authority and may execute orders of possession for that housing authority.(f) In counties with a population of 3,000,000 or more, process may be served, with special appointment by the court, by a private process server or a law enforcement agency other than the county sheriff in proceedings instituted under the Forcible Entry and Detainer Article of this Code as a result of a lessor or lessor’s assignee declaring a lease void pursuant to Section 11 of the Controlled Substance and Cannabis Nuisance Act.Case Notes:1. Illinois statute permitting process to be served “either by a sheriff or by a disinterested person appointed by the court” did not require appointment of process server by Illinois court, and permitted service of process in Illinois by private investigator specially appointed to serve process by Florida Circuit Court. Takiff v. Takiff, 683 So.2d 595 (1996).2. Fact that lawsuit was filed in DuPage County, whose population is less than 1 million so that service by private detective is permitted, did not authorize service of process on defendant in Cook County by private detective. Schorsch v. Fireside Chrysler-Plymouth 527 N.E.2d 693 (1988); appeal denied, 535 N.E.2d 411.3. Service of process within the state by a private individual not appointed to do so by the court is invalid. Lake County v. X-Po Sec. Police Service, Inc. 327 N.E.2d 96 (1975).735 ILCS 5/2-203. Service on individuals.(a) Except as otherwise expressly provided, service of summons upon an individual defendant shall be made(1) by leaving a copy of the summons with the defendant personally,(2) by leaving a copy at the defendant’s usual place of abode, with some person of the family or a person residing there, of the age of 13 years or upwards, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode, or(3) as provided in Section 1-2-9.2 of the Illinois Municipal Code with respect to violation of an ordinance governing parking or standing of vehicles in cities with a population over 500,000. The certificate of the officer or affidavit of the person that he or she has sent the copy in pursuance of this Section is evidence that he or she has done so.(b) The officer, in his or her certificate or in a record filed and maintained in the Sheriff’s office, or other person making service, in his or her affidavit or in a record filed and maintained in his or her employer’s office, shall:(1) identify as to sex, race, and approximate age the defendant or other person with whom the summons was left and(2) state the place where (whenever possible in terms of an exact street address) and the date and time of the day when the summons was left with the defendant or other person.(c) Any person who knowingly sets forth in the certificate or affidavit any false statement, shall be liable in civil contempt. When the court holds a person in civil contempt under this Section, it shall award such damages as it determines to be just and, when the contempt is prosecuted by a private attorney, may award reasonable attorney’s fees. (Source: P.A. 88-340.)Case Notes:1. Return of officer or other authorized person making service of summons on defendant by delivering copy to another person must show strict compliance with every requirement of statute authorizing substituted service. Dec and Aque v. Manning. 618 N.E.2d 367 (1993); appeal denied, 624 N.E.2d 805.2. Under this paragraph, strict adherence to technical requirements is a necessity when substituted service of process is attempted upon a nonresident of Illinois. Taylor v. Landsman, 422 N.E.2d 403 (1981); rehearing denied, 425 N.E.2d 218.735 ILCS 5/2-203.1. Service by special order of court. If service upon an individual defendant is impractical under items (1) and (2) of subsection (a) of Section 2-203, the plaintiff may move, without notice, that the court enter an order directing a comparable method of service. The motion shall be accompanied with an affidavit stating the nature and extent of the investigation made to determine the whereabouts of the defendant and the reasons why service is impractical under items (1) and (2) of subsection (a) of Section 2-203, including a specific statement showing that a diligent inquiry as to the location of the individual defendant was made and reasonable efforts to make service have been unsuccessful. The court may order service to be made in any manner consistent with due process. (Source: P.A. 87-1165.)735 ILCS 5/2-204. Service on private corporations. A private corporation may be served (1) by leaving a copy of the process with its registered agent or any officer or agent of the corporation found anywhere in the State; or (2) in any other manner now or hereafter permitted by law. A private corporation may also be notified by publication and mail in like manner and with like effect as individuals.(Source: P.A. 83-707.)735 ILCS 5/2-205. Service on partnership and partners.(a) A partnership sued in its firm name may be served by leaving a copy of the process with any partner personally or with any agent of the partnership found anywhere in the State. A partnership sued in its firm name may also be notified by publication and mail in like manner and with like effect as individuals.(b) When a personal judgment is sought against a known partner for a partnership liability the partner may be served (1) in any manner provided for service on individuals or (2) by leaving a copy of the summons for him or her with any other partner and mailing a copy of the summons in a sealed envelope with postage prepaid, addressed to the partner against whom the judgment is sought at his or her usual place of abode as shown by an affidavit filed in the cause. The certificate of the officer or the affidavit of the other person making service that he or she has mailed the copy in pursuance of this section is evidence that he or she has done so. Service on a nonresident partner against whom a personal judgment is sought may be made by leaving a copy with any other partner, and mailing, as provided herein, only if the cause of action sued on is a partnership liability arising out of the transaction of business within the State.(c) When a personal judgment is sought against an unknown owner in an action authorized under Section 6 of “An Act in relation to the use of an assumed name in the conduct or transaction of business in this State”, approved July 17, 1941, as amended, service may be made by leaving a copy of the summons with any agent of the business and publishing notice in the manner provided by Section 2-206 of this Act. (Source: P.A. 83-707.)735 ILCS 5/2-205.1. Service on voluntary unincorporated associations. A voluntary unincorporated association sued in its own name may be served by leaving a copy of the process with any officer of the association personally or by leaving a copy of the process at the office of the association with an agent of the association. A voluntary unincorporated association sued in its own name may also be notified by publication and mail in like manner and with like effect as individuals. (Source: P.A. 83-901.)735 ILCS 5/2-208. Personal service outside State.(a) Personal service of summons may be made upon any party outside the State. If upon a citizen or resident of this State or upon a person who has submitted to the jurisdiction of the courts of this State, it shall have the force and effect of personal service of summons within this State; otherwise it shall have the force and effect of service by publication.(b) The service of summons shall be made in like manner as service within this State, by any person over 18 years of age not a party to the action. No order of court is required. An affidavit of the server shall be filed stating the time, manner and place of service. The court may consider the affidavit, or any other competent proofs, in determining whether service has been properly made.(c) No default shall be entered until the expiration of at least 30 days after service. A default judgment entered on such service may be set aside only on a showing which would be timely and sufficient to set aside a default judgment entered on personal service within this State. (Source: P.A. 82-280.)Case Note:Attempted service by mail to Taiwanese corporation in Taiwan and to its sales representative in Indiana were insufficient; no federal statute authorized territorial service of Taiwanese corporation, and, according to Illinois statutory law, parties located outside of the forum state had to be personally served. Electronic Signals Products, Inc., v. Eastern Electronic Co. Ltd., 783 F.Supp. 1135 (N.D. Ill. 1992).735 ILCS 5/2-209. Act submitting to jurisdiction – Process.(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:(1) The transaction of any business within this State;(2) The commission of a tortious act within this State;(3) The ownership, use, or possession of any real estate situated in this State;(4) Contracting to insure any person, property or risk located within this State at the time of contracting;(5) With respect to actions of dissolution of marriage, declaration of invalidity of marriage and legal separation, the maintenance in this State of a matrimonial domicile at the time this cause of action arose or the commission in this State of any act giving rise to the cause of action;(6) With respect to actions brought under the Illinois Parentage Act of 1984, as now or hereafter amended, the performance of an act of sexual intercourse within this State during the possible period of conception;(7) The making or performance of any contract or promise substantially connected with this State;(8) The performance of sexual intercourse within this State which is claimed to have resulted in the conception of a child who resides in this State;(9) The failure to support a child, spouse or former spouse who has continued to reside in this State since the person either formerly resided with them in this State or directed them to reside in this State;(10) The acquisition of ownership, possession or control of any asset or thing of value present within this State when ownership, possession or control was acquired;(11) The breach of any fiduciary duty within this State;(12) The performance of duties as a director or officer of a corporation organized under the laws of this State or having its principal place of business within this State;(13) The ownership of an interest in any trust administered within this State; or(14) The exercise of powers granted under the authority of this State as a fiduciary.(b) A court may exercise jurisdiction in any action arising within or without this State against any person who:(1) Is a natural person present within this State when served;(2) Is a natural person domiciled or resident within this State when the cause of action arose, the action was commenced, or process was served;(3) Is a corporation organized under the laws of this State; or(4) Is a natural person or corporation doing business within this State.(c) A court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.(d) Service of process upon any person who is subject to the jurisdiction of the courts of this State, as provided in this Section, may be made by personally serving the summons upon the defendant outside this State, as provided in this Act, with the same force and effect as though summons had been personally served within this State.(e) Service of process upon any person who resides or whose business address is outside the United States and who is subject to the jurisdiction of the courts of this State, as provided in this Section, in any action based upon product liability may be made by serving a copy of the summons with a copy of the complaint attached upon the Secretary of State. The summons shall be accompanied by a $5 fee payable to the Secretary of State. The plaintiff shall forthwith mail a copy of the summons, upon which the date of service upon the Secretary is clearly shown, together with a copy of the complaint to the defendant at his or her last known place of residence or business address. Plaintiff shall file with the circuit clerk an affidavit of the plaintiff or his or her attorney stating the last known place of residence or the last known business address of the defendant and a certificate of mailing a copy of the summons and complaint to the defendant at such address as required by this subsection (e). The certificate of mailing shall be prima facie evidence that the plaintiff or his or her attorney mailed a copy of the summons and complaint to the defendant as required. Service of the summons shall be deemed to have been made upon the defendant on the date it is served upon the Secretary and shall have the same force and effect as though summons had been personally served upon the defendant within this State.(f) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him or her is based upon subsection (a).(g) Nothing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law. (Source: P.A. 86-840.)735 ILCS 5/2-211. Service on public, municipal, governmental and quasi-municipal corporations. In actions against public, municipal, governmental or quasi-municipal corporations, summons may be served by leaving a copy with the chairperson of the county board or county clerk in the case of a county, with the mayor or city clerk in the case of a city, with the president of the board of trustees or village clerk in the case of a village, with the supervisor or town clerk in the case of a town, and with the president or clerk or other officer corresponding thereto in the case of any other public, municipal, governmental or quasi-municipal corporation or body. (Source: P.A. 82-280.)735 ILCS 5/2-212. Service on trustee of corporation or receiver. Any trustee of a corporation or its property or any receiver may be served with summons (1) in any manner provided for service on individuals or corporations, as is appropriate, or (2) by leaving a copy thereof with any agent in the employ of the trustee or receiver anywhere in the State. The trustee or receiver may also be notified by publication and mail in like manner and with like effect as individuals. (Source: P.A. 82-280.)
Topics: Process Service | No Comments »
New York Foreclosure Process Server Laws
By admin | April 9, 2010
Rule 305. Summons; supplemental summons, amendment.(a) Summons; supplemental summons. A summons shall specify the basis of the venue designated and if based upon the residence of the plaintiff it shall specify the plaintiff`s address, and also shall bear the index number assigned and the date of filing with the clerk of the court. A third-party summons shall also specify the date of filing of the third-party summons with the clerk of the court. The summons in an action arising out of a consumer credit transaction shall prominently display at the top of the summons the words “consumer credit transaction” and, where a purchaser, borrower or debtor is a defendant, shall specify the county of residence of a defendant, if one resides within the state, and the county where the consumer credit transaction took place, if it is within the state. Where, upon order of the court or by stipulation of all parties or as of right pursuant to section 1003, a new party is joined in the action and the joinder is not made upon the new party’s motion, a supplemental summons specifying the pleading which the new party must answer shall be filed with the clerk of the court and served upon such party.(b) Summons and notice. If the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default.(c) Amendment. At any time, in its discretion and upon such terms as it deems just, the court may allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced.Rule 306. Proof of service.(a) Generally. Proof of service shall specify the papers served, the person who was served and the date, time, address, or, in the event there is no address, place and manner of service, and set forth facts showing that the service was made by an authorized person and in an authorized manner.(b) Personal service. Whenever service is made pursuant to this article by delivery of the summons to an individual, proof of service shall also include, in addition to any other requirement, a description of the person to whom it was so delivered, including, but not limited to, sex, color of skin, hair color, approximate age, approximate weight and height, and other identifying features.(c) Other service. Where service is made pursuant to subdivision four of section three hundred eight of this chapter, proof of service shall also specify the dates, addresses and the times of attempted service pursuant to subdivisions one, two or three of such section.(d) Form. Proof of service shall be in the form of a certificate if the service is made by a sheriff or other authorized public officer, in the form of an affidavit if made by any other person, or in the form of a signed acknowledgement of receipt of a summons and complaint, or summons and notice or notice of petition as provided for in section 312-a of this article.(e) Admission of service. A writing admitting service by the person to be served is adequate proof of service.Rule 306-a. Index number in an action commenced in supreme or county court.(a) Upon filing the summons and complaint or summons with notice in an action commenced in supreme or county court, an index number shall be assigned and the fee required by subdivision (a) of section eight thousand eighteen of this chapter shall be paid. Upon the filing of a summons and complaint against a person not already a party, as permitted under section one thousand seven or rule one thousand eleven of this chapter, the fee required by subdivision (a) of section eight thousand eighteen of this chapter shall be paid, but a separate index number shall not be assigned.(b) If a person other than the plaintiff or third-party plaintiff who served the summons or third-party summons obtains the index number and pays the fee therefor, the clerk shall issue an order directing the plaintiff or the third-party plaintiff to pay such person the amount of the fee paid. If such fee is not paid within thirty days of service of the order with notice of entry, the person who paid the fee, in addition to any other remedies available at law, may apply to the clerk for an order dismissing the action without prejudice.Rule 306-b. Service of the summons and complaint, summons with notice, or of the third-party summons and complaint. Service of the summons and complaint, summons with notice, or of the third-party summons and complaint shall be made within one hundred twenty days after their filing, provided that in an action or proceeding where the applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.Rule 307. Personal service upon the state.1. Personal service upon the state shall be made by delivering the summons to an assistant attorney-general at an office of the attorney-general or to the attorney-general within the state.2. Personal service on a state officer sued solely in an official capacity or state agency, which shall be required to obtain personal jurisdiction over such an officer or agency, shall be made by (1) delivering the summons to such officer or to the chief executive officer of such agency or to a person designated by such chief executive officer to receive service, or (2) by mailing the summons by certified mail, return receipt requested, to such officer or to the chief executive officer of such agency, and by personal service upon the state in the manner provided by subdivision one of this section. Service by certified mail shall not be complete until the summons is received in a principal office of the agency and until personal service upon the state in the manner provided by subdivision one of this section is completed. For purposes of this subdivision, the term “principal office of the agency” shall mean the location at which the office of the chief executive officer of the agency is generally located. Service by certified mail shall not be effective unless the front of the envelope bears the legend “URGENT LEGAL MAIL” in capital letters. The chief executive officer of every such agency shall designate at least one person, in addition to himself or herself, to accept personal service on behalf of the agency. For purposes of this subdivision the term state agency shall be deemed to refer to any agency, board, bureau, commission, division, tribunal or other entity which constitutes the state for purposes of service under subdivision one of this section.Rule 308. Personal service upon a natural person. Personal service upon a natural person shall be made by any of the following methods:1. by delivering the summons within the state to the person to be served; or2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law; or3. by delivering the summons within the state to the agent for service of the person to be served as designated under rule 318, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;4. where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;5. in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.6. For purposes of this section, “actual place of business” shall include any location that the defendant, through regular solicitation or advertisement, has held out as its place of business.Rule 309. Personal service upon an infant, incompetent or conservatee.(a) Upon an infant. Personal service upon an infant shall be made by personally serving the summons within the state upon a parent or any guardian or any person having legal custody or, if the infant is married, upon an adult spouse with whom the infant resides, or, if none are within the state, upon any other person with whom he resides, or by whom he is employed. If the infant is of the age of fourteen years or over, the summons shall also be personally served upon him within the state.(b) Upon a person judicially declared to be incompetent. Personal service upon a person judicially declared to be incompetent to manage his affairs and for whom a committee has been appointed shall be made by personally serving the summons within the state upon the committee and upon the incompetent, but the court may dispense with service upon the incompetent.(c) Upon a conservatee. Personal service on a person for whom a conservator has been appointed shall be made by personally serving the summons within the state upon the conservator and upon the conservatee, but the court may dispense with service upon the conservatee.Rule 310. Personal service upon a partnership.(a) Personal service upon persons conducting a business as a partnership may be made by personally serving the summons upon any one of them.(b) Personal service upon said partnership may also be made within the state by delivering the summons to the managing or general agent of the partnership or the person in charge of the office of the partnership within the state at such office and by either mailing the summons to the partner thereof intended to be served by first class mail to his last known residence or to the place of business of the partnership. Proof of such service shall be filed within twenty days with the clerk of the court designated in the summons; service shall be complete ten days after such filing; proof of service shall identify the person to whom the summons was so delivered and state the date, time of day and place of service.(c) Where service under subdivisions (a) and (b) of this section cannot be made with due diligence, it may be made by affixing a copy of the summons to the door of the actual place of business of the partnership within the state and by either mailing the summons by first class mail to the partner intended to be so served to such person to his last known residence or to said person at the office of said partnership within the state. Proof of such service shall be filed within twenty days thereafter with the clerk of the court designated in the summons; service shall be complete ten days after filing.(d) Personal service on such partnership may also be made by delivering the summons to any other agent or employee of the partnership authorized by appointment to receive service; or to any other person designated by the partnership to receive process in writing, filed in the office of the clerk of the county wherein such partnership is located.(e) If service is impracticable under subdivisions (a), (b) and (c) of this section, it may be made in such manner as the court, upon motion without notice directs.Rule 310-a. Personal service upon a limited partnership.(a) Personal service upon any domestic or foreign limited partnership shall be made by delivering a copy personally to any managing or general agent or general partner of the limited partnership in this state, to any other agent or employee of the limited partnership authorized by appointment to receive service or to any other person designated by the limited partnership to receive process, in the manner provided by law for service of summons, as if such person was the defendant. Personal service upon a limited partnership subject to the provisions of article eight-A of the partnership law may also be made pursuant to section 121-109 of such law.(b) If service is impracticable under subdivision (a) of this section, it may be made in such manner as the court, upon motion without notice, directs.(c) A limited liability partnership may also be served pursuant to section 121-1505 of the partnership law.Rule 311. Personal service upon a corporation or governmental subdivision.(a) Personal service upon a corporation or governmental subdivision shall be made by delivering the summons as follows:1. upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. A business corporation may also be served pursuant to section three hundred six or three hundred seven of the business corporation law. A not-for-profit corporation may also be served pursuant to section three hundred six or three hundred seven of the not-for-profit corporation law;2. upon the city of New York, to the corporation counsel or to any person designated to receive process in a writing filed in the office of the clerk of New York county;3. upon any other city, to the mayor, comptroller, treasurer, counsel or clerk; or, if the city lacks such officers, to an officer performing a corresponding function under another name;4. upon a county, to the chair or clerk of the board of supervisors, clerk, attorney or treasurer;5. upon a town, to the supervisor or the clerk;6. upon a village, to the mayor, clerk, or any trustee;7. upon a school district, to a school officer, as defined in the education law; and8. upon a park, sewage or other district, to the clerk, any trustee or any member of the board.(b) If service upon a domestic or foreign corporation within the one hundred twenty days allowed by section three hundred six-b of this article is impracticable under paragraph one of subdivision (a) of this section or any other law, service upon the corporation may be made in such manner, and proof of service may take such form, as the court, upon motion without notice, directs.Rule 311-a. Personal service on limited liability companies.(a) Service of process on any domestic or foreign limited liability company shall be made by delivering a copy personally to (i) any member of the limited liability company in this state, if the management of the limited liability company is vested in its members, (ii) any manager of the limited liability company in this state, if the management of the limited liability company is vested in one or more managers, (iii) to any other agent authorized by appointment to receive process, or (iv) to any other person designated by the limited liability company to receive process, in the manner provided by law for service of a summons as if such person was a defendant. Service of process upon a limited liability company may also be made pursuant to article three of the limited liability company law.(b) If service is impracticable under subdivision (a) of this section, it may be made in such manner as the court, upon motion without notice, directs.Rule 312-a. Personal service by mail.(a) Service. As an alternative to the methods of personal service authorized by section 307, 308, 310, 311 or 312 of this article, a summons and complaint, or summons and notice, or notice of petition and petition may be served by the plaintiff or any other person by mailing to the person or entity to be served, by first class mail, postage prepaid, a copy of the summons and complaint, or summons and notice or notice of petition and petition, together with two copies of a statement of service by mail and acknowledgement of receipt in the form set forth in subdivision (d) of this section, with a return envelope, postage prepaid, addressed to the sender.(b) Completion of service and time to answer.1. The defendant, an authorized employee of the defendant, defendant’s attorney or an employee of the attorney must complete the acknowledgement of receipt and mail or deliver one copy of it within thirty (30) days from the date of receipt. Service is complete on the date the signed acknowledgement of receipt is mailed or delivered to the sender. The signed acknowledgement of receipt shall constitute proof of service.2. Where a complaint or petition is served with the summons or notice of petition, the defendant shall serve an answer within twenty (20) days after the date the signed acknowledgement of receipt is mailed or delivered to the sender.(c) Affirmation. The acknowledgement of receipt of service shall be subscribed and affirmed as true under penalties of perjury and shall have the same force and effect as an affidavit.(d) Form. The statement of service by mail and the acknowledgement of receipt of such service shall be in substantially the following form:
Statement of Service by Mail andAcknowledgement of Receipt by Mail ofSummons and Complaint or Summons and Noticeor Notice of Petition and PetitionA. STATEMENT OF SERVICEBY MAILTo: (Insert the name and address of the person or entity to be served.)The enclosed summons and complaint, or summons and notice, or notice of petition and petition (strike out inapplicable terms) are served pursuant to section 312-a of the Civil Practice Law and Rules.To avoid being charged with the expense of service upon you, you must sign, date and complete the acknowledgement part of this form and mail or deliver one copy of the completed form to the sender within thirty (30) days from the date you receive it. You should keep a copy for your records or your attorney. If you wish to consult an attorney, you should do so as soon as possible before the thirty (30) days expire.If you do not complete and return the form to the sender within thirty (30) days, you (or the party on whose behalf you are being served) will be required to pay expenses incurred in serving the summons and complaint, or summons and notice, or notice of petition and petition in any other manner permitted by law, and the cost of such service as permitted by law will be entered as a judgment against you.If you have received a complaint or petition with this statement, the return of this statement and acknowledgement does not relieve you of the necessity to answer the complaint or petition. The time to answer expires twenty (20) days after the day you mail or deliver this form to the sender. If you wish to consult with an attorney, you should do so as soon as possible before the twenty (20) days expire.If you are served on behalf of a corporation, unincorporated association, partnership or other entity, you must indicate under your signature your relationship to the entity. If you are served on behalf of another person and you are authorized to receive process, you must indicate under your signature your authority.It is a crime to forge a signature or to make a false entry on this statement or on the acknowledgement.B. ACKNOWLEDGEMENT OF RECEIPT OF SUMMONS AND COMPLAINT OR SUMMONS AND NOTICEOR NOTICE OF PETITION AND PETITIONI received a summons and complaint, or summons and notice, or notice of petition and petition (strike out inapplicable terms) in the above- captioned matter at (insert address).PLEASE CHECK ONE OF THE FOLLOWING; IF 2 IS CHECKED, COMPLETE AS INDICATED:1. / / I am not in military service.2. / / I am in military service, and my rank, serial number and branch of service are as follows:Rank:________________________________Serial number:_________________________Branch of Service:______________________TO BE COMPLETED REGARDLESS OF MILITARY STATUS:Date:_________________________________________(Date this Acknowledgement is executed)I affirm the above as true under penalty of perjury.__________________________________Signature__________________________________Print name__________________________________Name of Defendant for which acting__________________________________Position with Defendant for which acting (i.e., officer, attorney, etc.)PLEASE COMPLETE ALL BLANKS INCLUDING DATESBY MAIL(e) Subsequent service. Where a duly executed acknowledgement is not returned, upon the subsequent service of process in another manner permitted by law, the summons or notice of petition or paper served with the summons or notice of petition shall indicate that an attempt previously was made to effect service pursuant to this section.(f) Disbursements. Where the signed acknowledgement of receipt is not returned within thirty (30) days after receipt of the documents mailed pursuant to subdivision (a) of this section, the reasonable expense of serving process by an alternative method shall be taxed by the court on notice pursuant to section 8402 of this chapter as a disbursement to the party serving process, and the court shall direct immediate judgment in that amount.Rule 313. Service without the state giving personal jurisdiction. A person domiciled in the state or subject to the jurisdiction of the courts of the state under section 301 or 302, or his executor or administrator, may be served with the summons without the state, in the same manner as service is made within the state, by any person authorized to make service within the state who is a resident of the state or by any person authorized to make service by the laws of the state, territory, possession or country in which service is made or by any duly qualified attorney, solicitor, barrister, or equivalent in such jurisdiction.Rule 314. Service without the state not giving personal jurisdiction in certain actions. Service may be made without the state by any person authorized by section 313 in the same manner as service is made within the state:1. in a matrimonial action; or2. where a judgment is demanded that the person to be served be excluded from a vested or contingent interest in or lien upon specific real or personal property within the state; or that such an interest or lien in favor of either party be enforced, regulated, defined or limited; or otherwise affecting the title to such property, including an action of interpleader or defensive interpleader; or3. where a levy upon property of the person to be served has been made within the state pursuant to an order of attachment or a chattel of such person has been seized in an action to recover a chattel.Rule 315. Service by publication authorized. The court, upon motion without notice, shall order service of a summons by publication in an action described in section 314 if service cannot be made by another prescribed method with due diligence.Rule 316. Service by publication.(a) Contents of order; form of publication; filing. An order for service of a summons by publication shall direct that the summons be published together with the notice to the defendant, a brief statement of the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default and, if the action is brought to recover a judgment affecting the title to, or the possession, use or enjoyment of, real property, a brief description of the property, in two newspapers, at least one in the English language, designated in the order as most likely to give notice to the person to be served, for a specified time, at least once in each of four successive weeks, except that in the matrimonial action publication in one newspaper in the English language, designated in the order as most likely to give notice to the person to be served, at least once in each of three successive weeks shall be sufficient. The summons, complaint, or summons and notice in an action for divorce or separation, order and papers on which the order was based shall be filed on or before the first day of publication.(b) Mailing to accompany publication in matrimonial actions. An order for service of a summons by publication in a matrimonial action shall also direct that on or before the first day of publication a copy of the summons be mailed to the person to be served unless a place where such person probably would receive mail cannot with due diligence be ascertained and the court dispenses with such mailing. A notice of publication shall be enclosed.(c) Time of publication; when service complete. The first publication of the summons shall be made within thirty days after the order is granted. Service by publication is complete on the twenty-eighth day after the day of first publication, except that in a matrimonial action it is complete on the twenty-first day after the day of first publication.
Rule 317. Defense by person to whom summons not personally delivered. A person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense. If the defense is successful, the court may direct and enforce restitution in the same manner and subject to the same conditions as where a judgment is reversed or modified on appeal. This section does not apply to an action for divorce, annulment or partition.Rule 318. Designation of agent for service. A person may be designated by a natural person, corporation or partnership as an agent for service in a writing, executed and acknowledged in the same manner as a deed, with the consent of the agent endorsed thereon. The writing shall be filed in the office of the clerk of the county in which the principal to be served resides or has its principal office. The designation shall remain in effect for three years from such filing unless it has been revoked by the filing of a revocation, or by the death, judicial declaration of incompetency or legal termination of the agent or principal.2103 N.Y.C.P.L.R. Service of papers.(a) Who can serve. Except where otherwise prescribed by law or order of court, papers may be served by any person not a party of the age of eighteen years or over.(b) Upon an attorney. Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party’s attorney. Where the same attorney appears for two or more parties, only one copy need be served upon the attorney. Such service upon an attorney shall be made:1. by delivering the paper to the attorney personally; or2. by mailing the paper to the attorney at the address designated by that attorney for that purpose or, if none is designated, at the attorney’s last known address; service by mail shall be complete upon mailing; where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period; or3. if the attorney’s office is open, by leaving the paper with a person in charge, or if no person is in charge, by leaving it in a conspicuous place; or if the attorney’s office is not open, by depositing the paper, enclosed in a sealed wrapper directed to the attorney, in the attorney’s office letter drop or box; or4. by leaving it at the attorney’s residence within the state with a person of suitable age and discretion. Service upon an attorney shall not be made at the attorney’s residence unless service at the attorney’s office cannot be made; or5. by transmitting the paper to the attorney by electronic means, provided that a telephone number or other station or other limitation, if any, is designated by the attorney for that purpose. Service by electronic means shall be complete upon the receipt by the sender of a signal from the equipment of the attorney served indicating that the transmission was received, and the mailing of a copy of the paper to that attorney. The designation of a telephone number or other station for service by electronic means in the address block subscribed on a paper served or filed in the course of an action or proceeding shall constitute consent to service by electronic means in accordance with this subdivision. An attorney may change or rescind a number or address designated for service of documents by serving a notice on the other parties; or6. by dispatching the paper to the attorney by overnight delivery service at the address designated by the attorney for that purpose or, if none is designated, at the attorney’s last known address. Service by overnight delivery service shall be complete upon deposit of the paper enclosed in a properly addressed wrapper into the custody of the overnight delivery service for overnight delivery, prior to the latest time designated by the overnight delivery service for overnight delivery. Where a period of time prescribed by law is measured from the service of a paper and service is by overnight delivery, one business day shall be added to the prescribed period. “Overnight delivery service” means any delivery service which regularly accepts items for overnight delivery to any address in the state.(c) Upon a party. If a party has not appeared by an attorney or the party’s attorney cannot be served, service shall be upon the party by a method specified in paragraph one, two, four, five or six of subdivision (b) of this rule.(d) Filing. If a paper cannot be served by any of the methods specified in subdivisions (b) and (c), service may be made by filing the paper as if it were a paper required to be filed.(e) Parties to be served. Each paper served on any party shall be served on every other party who has appeared, except as otherwise may be provided by court order or as provided in section 3012 or in subdivision (f) of section 3215. Upon demand by a party, the plaintiff shall supply that party with a list of those who have appeared and the names and addresses of their attorneys.(f) Definitions. For the purposes of this rule:1. “Mailing” means the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated, at that person’s last known address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state;2. “Electronic means,” means any method of transmission of information between two machines designed for the purpose of sending and receiving such transmissions, and which results in the fixation of the information transmitted in a tangible medium of expression.ARTICLE 23. SUBPOENAS, OATHS AND AFFIRMATIONS§2301 N.Y.C.P.L.R. Scope of subpoena. A subpoena requires the attendance of a person to give testimony. A subpoena duces tecum requires production of books, papers and other things. A child support subpoena is a subpoena issued pursuant to section one hundred eleven-p of the social services law by the department of social services or a social services district, or its authorized representative, or another state’s child support enforcement agency governed by title IV-D of the social security act.§2302 N.Y.C.P.L.R. Authority to issue.(a) Without court order. Subpoenas may be issued without a court order by the clerk of the court, a judge where there is no clerk, the attorney general, an attorney of record for a party to an action, an administrative proceeding or an arbitration, an arbitrator, a referee, or any member of a board, commission or committee authorized by law to hear, try or determine a matter or to do any other act, in an official capacity, in relation to which proof may be taken or the attendance of a person as a witness may be required; provided, however, that a subpoena to compel production of a patient’s clinical record maintained pursuant to the provisions of section 33.13 of the mental hygiene law shall be accompanied by a court order. A child support subpoena may be issued by the department, or the child support enforcement unit coordinator or support collection unit supervisor of a social services district, or his or her designee, or another state’s child support enforcement agency governed by title IV-D of the social security act.(b) Issuance by court. A subpoena to compel production of an original record or document where a certified transcript or copy is admissible in evidence, or to compel attendance of any person confined in a penitentiary or jail, shall be issued by the court. Unless the court orders otherwise, a motion for such subpoena shall be made on at least one day’s notice to the person having custody of the record, document or person confined. A subpoena to produce a prisoner so confined shall be issued by a judge to whom a petition for habeas corpus could be made under subdivision (b) of section 7002 of the civil practice law and rules or a judge of the court of claims, if the matter is pending before the court of claims or a judge of the surrogate’s court if the matter is pending before the surrogates court, or a judge of the family court, if the matter is pending before the family court.§2303 N.Y.C.P.L.R. Service of subpoena; payment of fees in advance.(a) A subpoena requiring attendance or a subpoena duces tecum shall be served in the same manner as a summons, except that where service of such a subpoena is made pursuant to subdivision two or four of section three hundred eight of this chapter, the filing of proof of service shall not be required and service shall be deemed complete upon the later of the delivering or mailing of the subpoena, if made pursuant to subdivision two of section three hundred eight of this chapter, or upon the later of the affixing or mailing of the subpoena, if made pursuant to subdivision four of section three hundred eight of this chapter. Any person subpoenaed shall be paid or tendered in advance authorized traveling expenses and one day’s witness fee.(b) A child support subpoena issued pursuant to section one hundred eleven-p of the social services law to public utility companies and corporations, including but not limited to cable television, gas, electric, steam, and telephone companies and corporations, as defined in section two of the public service law, may be served by regular mail, or through an automated process where information sought is maintained in an automated data base. All other child support subpoenas issued pursuant to section one hundred eleven-p of the social services law shall be served in accordance with the provisions of subdivision (a) of this section.§ 2304 N.Y.C.P.L.R. Motion to quash, fix conditions or modify. A motion to quash, fix conditions or modify a subpoena shall be made promptly in the court in which the subpoena is returnable. If the subpoena is not returnable in a court, a request to withdraw or modify the subpoena shall first be made to the person who issued it and a motion to quash, fix conditions or modify may thereafter be made in the supreme court; except that such motion with respect to a child support subpoena issued pursuant to section one hundred eleven-p of the social services law shall be made to a judge of the family court or the supreme court. Reasonable conditions may be imposed upon the granting or denial of a motion to quash or modify.§ 2305 N.Y.C.P.L.R. Attendance required pursuant to subpoena; possession of books, records, documents or papers.(a) When person required to attend. A subpoena may provide that the person subpoenaed shall appear on the date stated and any recessed or adjourned date of the trial, hearing or examination. If he is given reasonable notice of such recess or adjournment, no further process shall be required to compel his attendance on the adjourned date. At the end of each day’s attendance, the person subpoenaed may demand his fee for the next day on which he is to attend. If the fee is not then paid, he shall be deemed discharged.(b) Subpoena duces tecum; attendance by substitute. Any person may comply with a subpoena duces tecum by having the requisite books, documents or things produced by a person able to identify them and testify respecting their origin, purpose and custody.(c) Inspection, examination and audit of records. Whenever by statute any department or agency of government, or officer thereof, is authorized to issue a subpoena requiring the production of books, records, documents or papers, the issuing party shall have the right to the possession of such material for a period of time, and on terms and conditions, as may reasonably be required for the inspection, examination or audit of the material. The reasonableness of such possession, time, terms, and conditions shall be determined with consideration for, among other things, (i) the good cause shown by the issuing party, (ii) the rights and needs of the person subpoenaed, and (iii) the feasibility and appropriateness of making copies of the material. The cost of reproduction and transportation incident thereto shall be borne by the person or party issuing the subpoena unless the court determines otherwise in the interest of justice.§ 2306 N.Y.C.P.L.R. Hospital records; medical records of department or bureau of a municipal corporation or of the state.(a) Transcript or reproduction. Where a subpoena duces tecum is served upon a hospital, or upon a department or bureau of a municipal corporation or of the state, or an officer thereof, requiring the production of records relating to the condition or treatment of a patient, a transcript or a full-sized legible reproduction, certified as correct by the superintendent or head of the hospital, department or bureau or his assistant, or the officer, may be produced unless otherwise ordered by a court. Such a subpoena shall be served at least three days before the time fixed for the production of the records unless otherwise ordered by a court.(b) Delivery to clerk. Where a court has designated a clerk to receive records described in subdivision (a), delivery may be made to him at or before the time fixed for their production. The clerk shall give a receipt for the records and notify the person subpoenaed when they are no longer required. The records shall be delivered in a sealed envelope indicating the title of the action, the date fixed for production and the name and address of the attorney appearing on the subpoena. They shall be available for inspection pursuant to the rules or order of the court.§ 2307 N.Y.C.P.L.R. Books, papers and other things of a library, department or bureau of a municipal corporation or of the state. Issuance by court. A subpoena duces tecum to be served upon a library, or a department or bureau of a municipal corporation or of the state, or an officer thereof, requiring the production of any books, papers or other things, shall be issued by a justice of the supreme court in the district in which the book, paper or other thing is located or by a judge of the court in which an action for which it is required is triable. Unless the court orders otherwise, a motion for such subpoena shall be made on at least one day’s notice to the library, department, bureau or officer having custody of the book, document or other thing and the adverse party. Such subpoena must be served upon such library, or such department or bureau of such municipal corporation or of the state or an officer having custody of the book, document or other thing and the adverse party at least twenty-four hours before the time fixed for the production of such records unless in the case of an emergency the court shall by order dispense with such notice otherwise required. Compliance with a subpoena duces tecum may be made by producing a full-sized legible reproduction of the item or items required to be produced certified as complete and accurate by the person in charge of such library, department or bureau, or a designee of such person, and no personal appearance to certify such item or items shall be required of such person or designee, unless the court shall order otherwise pursuant to subdivision (d) of rule 2214 of this chapter. Where a stipulation would serve the same purpose as production of the book, document or other thing and the subpoena is required because the parties will not stipulate, the judge may impose terms on any party, including the cost of production of the book or document, and require such cost to be paid as an additional fee to the library, department or officer.§ 2308 N.Y.C.P.L.R. Disobedience of subpoena.(a) Judicial. Failure to comply with a subpoena issued by a judge, clerk or officer of the court shall be punishable as a contempt of court. If the witness is a party the court may also strike his pleadings. A subpoenaed person shall also be liable to the person on whose behalf the subpoena was issued for a penalty not exceeding fifty dollars and damages sustained by reason of the failure to comply. A court may issue a warrant directing a sheriff to bring the witness into court. If a person so subpoenaed attends or is brought into court, but refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book, paper or other thing which he was directed to produce by the subpoena, or to subscribe his deposition after it has been correctly reduced to writing, the court may forthwith issue a warrant directed to the sheriff of the county where the person is, committing him to jail, there to remain until he submits to do the act which he was so required to do or is discharged according to law. Such a warrant of commitment shall specify particularly the cause of the commitment and, if the witness is committed for refusing to answer a question, the question shall be inserted in the warrant.(b) Non-judicial.(1) Unless otherwise provided, if a person fails to comply with a subpoena which is not returnable in a court, the issuer or the person on whose behalf the subpoena was issued may move in the supreme court to compel compliance. If the court finds that the subpoena was authorized, it shall order compliance and may impose costs not exceeding fifty dollars. A subpoenaed person shall also be liable to the person on whose behalf the subpoena was issued for a penalty not exceeding fifty dollars and damages sustained by reason of the failure to comply. A court may issue a warrant directing a sheriff to bring the witness before the person or body requiring his appearance. If a person so subpoenaed attends or is brought before such person or body, but refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book, paper or other thing which he was directed to produce by the subpoena, or to subscribe his deposition after it has been correctly reduced to writing, the court, upon proof by affidavit, may issue a warrant directed to the sheriff of the county where the person is, committing him to jail, there to remain until he submits to do the act which he was so required to do or is discharged according to law. Such a warrant of commitment shall specify particularly the cause of the commitment and, if the witness is committed for refusing to answer a question, the question shall be inserted in the warrant.(2) Notwithstanding the provisions of paragraph one of this subdivision, if a person fails to comply with a subpoena issued pursuant to section one hundred eleven-p of the social services law by the department of social services or a social services district, or its authorized representative, or another state’s child support enforcement agency governed by title IV-D of the social security act, such department or district is authorized to impose a penalty against the subpoenaed person. The amount of the penalty shall be determined by the commissioner of the department of social services and set forth in regulation, and shall not exceed fifty dollars. Payment of the penalty shall not be required, however, if in response to notification of the imposition of the penalty the subpoenaed person complies immediately with the subpoena.(c) Review of proceedings. Within ninety days after the offender shall have been committed to jail he shall, if not then discharged by law, be brought, by the sheriff, or other officer, as a matter of course personally before the court issuing the warrant of commitment and a review of the proceedings shall then be held to determine whether the offender shall be discharged from commitment. At periodic intervals of not more than ninety days following such review, the offender, if not then discharged by law from such commitment, shall be brought, by the sheriff, or other officer, personally before the court issuing the warrant of commitment and further reviews of the proceedings shall then be held to determine whether he shall be is charged from commitment. The clerk of the court before which such review of the proceedings shall be held, or the judge or justice of such court in case there be no clerk, shall give reasonable notice in writing of the date, time and place of each such review to each party or his attorney who shall have appeared of record in the proceeding resulting in the issuance of the warrant of commitment, at their last known address.§ 11 Gen. Bus. Serving civil process on Sunday. All service or execution of legal process, of any kind whatever, on the first day of the week is prohibited, except in criminal proceedings or where service or execution is specially authorized by statute. Service or execution of any process upon said day except as herein permitted is absolutely void for any and every purpose whatsoever.§ 13 Gen. Bus. Maliciously serving process on Saturday on person who keeps Saturday as holy time. Whoever maliciously procures any process in a civil action to be served on Saturday, upon any person who keeps Saturday as holy time, and does not labor on that day, or serves upon him any process returnable on that day, or maliciously procures any civil action to which such person is a party to be adjourned to that day for trial, is guilty of a misdemeanor.§ 89-t Gen. Bus. Definitions. For this article, a process server is a person other than an attorney or a party to an action acting on his own behalf who: (a) derives income from the service of papers in an action; or (b) has effected service of process in five or more actions or proceedings in the twelve month period immediately preceding the service in question. A person who serves interlocutory papers upon an attorney or who serves papers on behalf of a federal, state or local governmental agency in the course of his employment by such agency shall not be deemed a process server within the meaning of this article by virtue of such service.§ 89-u Gen. Bus. Process server records, penalties.1. Each process server shall maintain a legible record of all service made by him as prescribed in this section.2. The record to be maintained shall include the following information, where applicable:a. the title of the action;b. the name of the person served, if known;c. the date and approximate time service was effected;d. the address where service was effected;e. the nature of the papers served;f. the court in which the action has been commenced;g. the index number of the action, if known.3. If service is effected pursuant to subdivisions one, two, or three of section three hundred eight of the civil practice law and rules, the record shall also include the description of the person served, including, but not limited to, sex, color of skin, hair color, approximate age, height and weight and other identifying features.4. If service is effected pursuant to subdivision four of section three hundred eight of the civil practice law and rules, the record shall also include the dates, addresses and time of attempted service pursuant to subdivisions one, two or three of such section.5. If the process server files an affidavit of service with the court, his record shall include the date of such filing.6. Process servers shall retain each record required to be kept under this article for a period of two years from the date of service. Where a process server is employed as a process server by any person, a copy of such records shall also be maintained by such person at his principal office in this state for the same period.§ 89-v Gen. Bus. Enforcement by attorney general. In addition to the other remedies provided, whenever there shall be a violation of this article, application may be made by the attorney general in the name of the people of the state of New York to a court or justice having jurisdiction by a special proceeding to issue an injunction, and upon notice to the defendant of not less than five days, to enjoin and restrain the continuance of such violations; and if it shall appear to the satisfaction of the court or justice that the defendant has, in fact, violated this article, an injunction may be issued by such court or justice, enjoining and restraining any further violation, without requiring proof that any person has, in fact, been injured or damaged thereby. In any such proceeding, the court may make allowances to the attorney general as provided in paragraph six of subdivision (a) of section eighty-three hundred three of the civil practice law and rules. Whenever the court shall determine that a violation of this article has occurred, the court may impose a civil penalty of not more than one thousand dollars for each violation. Provided, however, a process server or agency may not be held liable for penalty in any action brought under this section for violation of this article, if the process server or agency shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adopted to avoid any such error. Examples of a bona fide error include, but are not limited to, clerical calculation, computer malfunction and programming and printing errors. In connection with any such proposed application, the attorney general is authorized to take proof and make a determination of the relevant facts and to issue subpoenas in accordance with the civil practice law and rules.§ 89-bb Gen. Bus. Definitions. For the purposes of this article:1. A “process server” is a person, other than an attorney or a party to an action acting on his own behalf, who: (a) derives income from the service of papers in an action; or (b) has effected service of process in five or more actions or proceedings in the twelve month period immediately preceding the service in question. A person who serves interlocutory papers upon an attorney or who serves papers on behalf of a federal, state or local governmental agency in the course of his employment by such agency shall not be deemed a process server within the meaning of this article by virtue of such service.2. A “process serving agency” is any person, firm, partnership, association or corporation, other than an attorney or a law firm located in this state, who, as owner, manager or contractor, maintains an office, bureau or agency for the purpose of assigning or distributing process to individual process servers for actual service.§ 89-cc Gen. Bus. Process server records.1. Each process server shall maintain a legible record of all service made by him as prescribed in this section. Such records shall be kept in chronological order in a bound, paginated volume. Corrections in records shall be made only by drawing a straight line through the inaccurate entry and clearly printing the accurate information directly above the inaccurate entry. All other methods of correction, including but not limited to erasing, opaquing, obliterating or redacting, are prohibited.2. The record to be maintained shall include the following information, where applicable:(a) the title of the action or a reasonable abbreviation thereof;(b) the name of the person served, if known;(c) the date and approximate time service was effected;(d) the address where service was effected;(e) the nature of the papers served;(f) the court in which the action has been commenced;(g) the index number of the action, if known;(h) if service is effectuated pursuant to subdivision four of section three hundred eight of the civil practice law and rules or subdivision one of section seven hundred thirty-five of the real property actions and proceedings law, a description of the color of the door to which the summons is affixed;(i) the process serving agency from whom the process served was received, if any;(j) type of service effected whether personal, substituted or conspicuous;(k) if service is effected pursuant to subdivision one, two or three of section three hundred eight of the civil practice law and rules, the record shall also include the description of the person served, including, but not limited to sex, color of skin, hair color, approximate age, height and weight and other identifying features;(l) if service is effected pursuant to subdivision four of section three hundred eight of the civil practice law and rules, the record shall also include the dates, addresses and time of attempted service pursuant to subdivision one, two or three of such section;(m) if the process server files an affidavit of service with the court, his record shall include the date of such filing.§ 89-dd Gen. Bus. Process serving agency records.1. Each process serving agency shall be required to keep complete and accurate records with respect to each process server to whom it distributes, assigns or delivers process to be served. Corrections in records shall be made only by drawing a straight line through the inaccurate entry and clearly printing the accurate information directly above the inaccurate entry. All other methods of correction, including but not limited to, erasing, opaquing, obliterating, or redacting, are prohibited.2. Such records shall include, where applicable:(a) The name of the process server to whom process is distributed, assigned or delivered to be served;(b) The titles or a reasonable abbreviation thereof and index numbers of each case if filed in court by the agency;(c) The date that such papers were assigned for service, and the date that service was effected;(d) The person from whom such papers were received for service;(e) The date of filing of papers with the court if filed by the agency;(f) The type of service effected whether personal, substituted or conspicuous.§ 89-ee Gen. Bus. Responsibility of process serving agency and process servers.1. It shall be unlawful for a process server to fail to comply with all legal requirements for the service of process.2. A process serving agency shall be legally responsible for the acts of each process server to whom it has distributed, assigned or delivered process for service if it could reasonably have known that the process server was acting improperly.3. It shall be unlawful for a process serving agency or a process server to fail to comply with all laws and regulations respecting preparation, notarization and filing of affidavits of service of process and other documents.§ 89-ff Gen. Bus. Affidavits of service. It shall be unlawful for a process server to fail to set forth on any affidavit of service or process signed by him his license or registration number if such process server is required to be licensed or registered pursuant to any state or local law and the name and address of any process serving agency from whom he obtained the process for service if any.§ 89-gg Gen. Bus. Availability of records. All records required to be maintained by this article shall be retained by a process server or process serving agency for a minimum of three years and shall be available for inspection by the attorney general. The attorney general shall afford a process server or process serving agency at least five days prior written notice of its desire to make an inspection of records and shall specify the records to be inspected.§ 89-hh Gen. Bus. Enforcement by attorney general. In addition to the other remedies provided, whenever there shall be a violation of this article, application may be made by the attorney general in the name of the people of the state of New York to a court or justice having jurisdiction by a special proceeding to issue an injunction, and upon notice to the defendant of not less than five days, to enjoin and restrain the continuance of such violations; and if it shall appear to the satisfaction of the court or justice that the defendant has, in fact, violated this article, an injunction may be issued by such court or justice, enjoining and restraining any further violation, without requiring proof that any person has, in fact, been injured or damaged thereby. In any such proceeding, the court may make allowances to the attorney general as provided in paragraph six of subdivision (a) of section eighty-three hundred three of the civil practice law and rules. Whenever the court shall determine that a violation of this article has occurred, the court may impose a civil penalty of not more than one thousand dollars for each violation. Provided, however, a process server or agency may not be held liable for penalty in any action brought under this section for violation of this article, if the process server or agency shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adopted to avoid any such error. Examples of a bona fide error include, but are not limited to, clerical calculation, computer malfunction and programming and printing errors. In connection with any such proposed application, the attorney general is authorized to take proof and make a determination of the relevant facts and to issue subpoenas in accordance with the civil practice law and rules.§ 89-ii Gen. Bus. Preservation of private remedies. Nothing in this article shall be construed to nullify or impair any right or rights which an individual may have against a process server or process serving agency at common law, by statute or otherwise.§ 89-jj Gen. Bus. Preemption. This article does not annul, alter, affect or exempt any person or business entity subject to the provisions of this article from complying with any local law, ordinance or regulation with respect to process servers or process serving agencies except to the extent that those laws are inconsistent with any provision of this article, and then only to the extent of the inconsistency. For purposes of this section, a local law, ordinance or regulation is not inconsistent with this article if the protection such law or regulation affords a consumer is greater than the protection provided by this article.§ 89-kk Gen. Bus. Severability. If any provision of this article or if any application thereof to any person or circumstance is held invalid, the remainder of this article and the application of the provision to other persons and circumstances shall not be affected thereby.§ 89-ll Gen. Bus. Applicability. This article shall apply only in cities having a population of one million or more.ADMINISTRATIVE CODE OF NEW YORK CITY§ 20-403 License required. It shall be unlawful for any person to be employed as or perform the services of process server without a license therefor.§ 20-404 Definition.a. A process server is a person engaged in the business of serving or one who purports to serve or one who serves personally or by substituted service upon any person, corporation, governmental or political subdivision or agency, a summons, subpoena, notice, citation or other process, directing an appearance or response to a legal action, legal proceeding or administrative proceedings.b. For the purposes of this subchapter the service of five or more process in any one year shall be deemed to constitute doing business as a process server.§ 20-405 Exceptions.a. The provisions of this subchapter shall not apply to any employee of any city, state or federal department or agency, who is acting within the scope of his or her employment.b. The provisions of this subchapter shall not apply to attorneys duly admitted to practice law in the state of New York.§ 20-406 Application; fingerprinting.a. An application for such a license or renewal thereof shall be made to the commissioner on a form prescribed by him or her.b. The commissioner shall require that applicants for licenses issued pursuant to this subchapter be fingerprinted for the purpose of securing criminal history records from the state division of criminal justice services. The applicant shall pay a processing fee as required by the state division of criminal justice services. Fingerprints shall be taken of the individual owner if the applicant is a sole proprietorship; the general partners if the applicant is a partnership; and the officers, principals, directors, and stockholders owning more than ten percent of the outstanding stock of the corporation if the applicant is a corporation. Any person required to be fingerprinted hereunder shall furnish to the department three current passport-sized photographs of such person. Notwithstanding the foregoing, the commissioner need not require applicants for licenses required under this subchapter to be fingerprinted if criminal history records concerning such applicants are not available from the state division of criminal justice services.§ 20-407 Fee; term. The biennial license fee to be paid by such persons shall be three hundred forty dollars.§ 20-408 Rules and regulations. The commissioner may make and promulgate such rules and regulations as he or she may deem necessary for the proper implementation and enforcement of this subchapter.§ 20-409 Issuance, renewal, suspension and revocation of a license.a. A license issued hereunder may be suspended or revoked or its renewal denied by the commissioner at any time for the failure of the licensee to comply with any rule, regulation or order promulgated by the commissioner.b. In addition to any of the powers that may be exercised by the commissioner pursuant to this subchapter and chapter one of this title, the commissioner, after notice and an opportunity to be heard, may refuse to issue or renew, or may suspend or revoke, a license required under this subchapter if the applicant or licensee, or any of its principals, officers or directors, or any of its stockholders owning more than ten percent of the outstanding stock of the corporation has been convicted of a crime which, in the judgment of the commissioner, has a direct relationship to such person’s fitness or ability to perform any of the activities for which a license is required under this subchapter or has been convicted of any other crime which, in accordance with article twenty-three-a of the correction law, would provide a justification for the commissioner to refuse to issue or renew, or to suspend or revoke, such license.
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New Jersey Foreclosure Process Server Laws
By admin | April 9, 2010
RULE 1:5. SERVICE AND FILING OF PAPERS
1:5-1. Service: When Required
(a) Civil Actions. In all civil actions, unless otherwise provided by rule or court order, orders, judgments, pleadings subsequent to the original complaint, written motions (not made ex parte), briefs, appendices, petitions and other papers except a judgment signed by the clerk shall be served upon all attorneys of record in the action and upon parties appearing pro se; but no service need be made on parties who have failed to appear except that pleadings asserting new or additional claims for relief against such parties in default shall be served upon them in the manner provided for service of original process. The party obtaining an order or judgment shall serve it as herein prescribed within 7 days after the date it was signed unless the court otherwise orders therein.
(b) Criminal Actions. In criminal actions, unless otherwise provided by rule or court order, written motions (not made ex parte), briefs, appendices, petitions, memoranda and other papers shall be served upon all attorneys of record in the action, upon parties appearing pro se and upon such other agencies of government as may be affected by the relief sought.
Note: Source-R.R. 3:11-4(a), 4:5-1. Paragraph (a) amended July 16, 1979 to be effective September 10, 1979; paragraph (b) amended July 13, 1994 to be effective September 1, 1994.
1:5-2. Manner of Service
Service upon an attorney of papers referred to in R. 1:5-1 shall be made by mailing a copy to the attorney at his or her office by ordinary mail, by handing it to the attorney, or by leaving it at the office with a person in the attorney’s employ, or, if the office is closed or the attorney has no office, in the same manner as service is made upon a party. Service upon a party of such papers shall be made as provided in R. 4:4-4 or by registered or certified mail, return receipt requested, to the party’s last known address; or if the party refuses to claim or to accept delivery, by ordinary mail to the last known address; or if no address is known, by ordinary mail to the clerk of the court. Mail may be addressed to a post office box in lieu of a street address only if the sender cannot by diligent effort determine the addressee’s street address or if the post office does not make street-address delivery to the addressee. The specific facts underlying the diligent effort shall be recited in the proof of service required by R. 1:5-3. Where mailed service is made upon a party, the modes of service may be made simultaneously.
Note: Source-R.R. 1:7-12(d), 1:10-10(b), 1:11-2(c), 2:11-2(c), 3:11-1(b), 4:5-2(a) (first four sentences); amended July 16, 1981 to be effective September 14, 1981; amended July 13, 1994 to be effective September 1, 1994.
1:5-3. Proof of Service
Proof of service of every paper referred to in R. 1:5-1 may be made (1) by an acknowledgment of service, signed by the attorney for a party or signed and acknowledged by the party, or (2) by an affidavit of the person making service, or (3) by a certification of service appended to the paper to be filed and signed by the attorney for the party making service. If service has been made by mail the affidavit or certification shall state that the mailing was to the last known address of the person served. The proof shall be filed with the court promptly and in any event before action is to be taken on the matter by the court. Where service has been made by registered or certified mail, filing of the return receipt card with the court shall not be required. Failure to make proof of service does not affect the validity of the service, and the court at any time may allow the proof to be amended or supplied unless an injustice would result.
Note: Source-R.R. 4:5-2(b), 4:88-10 (fifth sentence); amended July 17, 1975 to be effective September 8, 1975; amended July 29, 1977 to be effective September 6, 1977; amended June 29, 1990 to be effective September 4, 1990.
1:5-4. Service by Mail or Courier: When Complete
(a) Service by Ordinary Mail if Registered or Certified Mail Is Required and Is Refused. Where under any rule, provision is made for service by certified or registered mail, service may also be made by ordinary mail simultaneously or thereafter. If the addressee fails or refuses to claim or to accept delivery of certified or registered mail, the ordinary mailing shall be deemed to constitute service.
(b) Service Complete on Mailing. Except for motions that are governed by R. 1:6-3(c), service by mail of any paper referred to in R. 1:5-1, when authorized by rule or court order, shall be complete upon mailing of the ordinary mail. If no ordinary mailing is made, service shall be deemed complete upon the date of acceptance of the certified or registered mail.
(c) Service by Commercial Courier. Service by a commercial courier of a paper referred to in R. 1:5-1, except for motions, which are governed by R. 1:6-3, shall be complete upon the courier’s receipt of the paper from the sender, provided the courier’s regular business is delivery service, and provided further that it guarantees delivery to the addressee by the end of the next business day following the courier’s receipt from the sender.
Note: Source-R.R. 4:5-2(a) (fifth sentence). Paragraph (a) adopted and former rule designated (b) June 29, 1973 to be effective September 10, 1973; amended November 1, 1985 to be effective January 2, 1986; paragraph (b) amended and paragraph (c) added July 13, 1994 to be effective September 1, 1994; paragraph (b) amended July 10, 1998 to be effective September 1, 1998.
1:5-5. Service; Numerous Defendants
In any civil action in which there are unusually large numbers of defendants, the court,upon motion or on its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and 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 that the filing of any such pleadings and service thereof upon the plaintiff, or an adverse party in a cross-claim, constitutes due notice of it to the parties. In any such action the court may designate certain parties as representatives for receipt of service for all defendants similarly situated and may order that service of pleadings, motions and other papers filed in the action may be served upon such representatives with the same effect as if all such defendants had been served. A copy of every such order shall be served upon the parties in interest in such manner and form as the court directs.
Note: Source-R.R. 4:5-3.
1:5-6. Filing
(a) Time for Filing. In any trial court, unless otherwise stated, all papers required to be served by R. 1:5-1 shall be filed with the court either before service or promptly thereafter, unless the rule requiring service or filing provides otherwise. Whenever in these rules provision is made for the publication, mailing or posting of notice, proof thereof shall be filed with the court within 20 days after the publication or mailing or posting.
(b) What Constitutes Filing With the Court. Except as otherwise provided by R. 1:6-4 (motion papers), R. 1:6-5 (briefs), and R. 4:42-1(e) (orders and judgments), a paper is filed with the trial court if the original is filed as follows:
(1) In civil actions in the Superior Court, Law Division, and in actions in the Superior Court, Chancery Division, General Equity, except mortgage and tax foreclosure actions, with the deputy clerk of the Superior Court in the county of venue;
(2) In criminal actions in the Superior Court, Law Division, with the Criminal Division Manager in the county of venue, as designee of the deputy clerk of the Superior Court;
(3) In mortgage and tax foreclosure actions, with the Clerk of the Superior Court, unless and until the action is deemed contested and the papers have been sent by the Clerk to the county of venue, in which event subsequent papers shall be filed with the deputy clerk of the Superior Court in the county of venue;
(4) In actions in the Chancery Division, Family Part, with the deputy clerk of the Superior Court in the county of venue if the action is for dissolution of marriage, with the Surrogate of the county of venue if the action is for adoption, and in all other actions, with the Family Division Manager in the county of venue, as designee of the deputy clerk of the Superior Court;
(5) In probate matters in the Surrogate’s Court, with the Surrogate, and in actions in the Chancery Division, Probate Part, with the Surrogate of the county of venue as deputy clerk of theSuperior Court;
(6) In actions of the Special Civil Part, as provided by Part VI of these rules;
(7) In actions in the Tax Court, as provided by Part VIII of these rules.
The foregoing notwithstanding, in any case the judge or, at the judge’s chambers, a member of the staff may accept papers for filing if they show the filing date and the judge’s name and office. The filed papers shall be forwarded forthwith to the appropriate office.
(c) Nonconforming Papers. The clerk shall file all papers presented for filing and may notify the person filing if such papers do not conform to these rules, except that
(1) the paper shall be returned stamped “Received but not Filed (date)” if it is presented for filing unaccompanied by any of the following:
(A) the required filing fee; or
(B) a completed Case Information Statement as required by R. 4:5-1 in the form set forth in Appendix XII to these rules; or
(C) In Family Part actions, the affidavit of insurance coverage required by R. 5:4-2(f) or the Parents Education Program registration fee required by N.J.S.A. 2A:34-12.2.
If a paper is returned under this rule, it shall be accompanied by a notice advising that if the paper is retransmitted together with the required document or fee, as appropriate, within ten days after the date of the clerk’s notice, filing will be deemed to have been made on the stamped receipt date.
(2) Except in mortgage and tax foreclosure actions, if an answer is presented by a defendant against whom default has been entered, the clerk shall return the same stamped “Received but not Filed (date)” with notice that the defendant may move to vacate the default.
(3) A demand for trial de novo may be rejected and returned if not filed within the time prescribed in R. 4:21A-6.
(d) Misfiled Papers. If papers are sent to the wrong filing office, they shall be stamped “Received but not Filed (date)” and transmitted by that office to the proper filing office and a notice shall be sent by the transmitting office to the filer of the paper advising of the transmittal. The stamped received date shall be deemed to be the date of filing.
(e) Attorneys Answerable for Clerk’s Fees. The attorney of record in every action shall be answerable for the clerk’s lawful fees and charges.
Note: Source-R.R. 1:7-11, 1:12-3(b), 2:10, 3:11-4(d), 4:5-5(a), 4:5-6(a) (first and second sentence), 4:5-7 (first sentence), 5:5-1(a). Paragraphs (b) and (c) amended July 14, 1972 to be effective September 5, 1972; paragraph (c) amended November 27, 1974 to be effective April 1, 1975; paragraph (b) amended November 7, 1988 to be effective January 2, 1989; paragraph (b) amended June 29, 1990 to be effective September 4, 1990; paragraph (c) amended November 26, 1990 to be effective April 1, 1991; paragraphs (b) and (c) amended, new text substituted for paragraph (d) and former paragraph (d) redesignated paragraph (e) July 13, 1994 to be effective September 1, 1994; paragraph (b)(1) amended, new paragraph (b)(2), adopted, paragraphs (b)(2), (3), (4), (5) and (6) redesignated paragraphs (b)(3), (4), (5), (6) and (7), and newly designated paragraph (b)(4) amended July 13, 1994 to be effective January 1, 1995; paragraphs (b)(1),(3) and (4) amended June 28, 1996 to be effective September 1, 1996; paragraph (b)(4) amended July 10, 1998 to be effective September 1, 1998; paragraph (c) amended July 5, 2000 to be effective September 5, 2000.
1:5-7. Non-military Affidavit
An affidavit of non-military service of each defendant, male or female, when required by law, shall be filed before entry of judgment by default against such defendant. Such affidavit may be included as part of the affidavit of proof.
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Missouri Foreclosure Process Server Laws
By admin | April 9, 2010
Rule 54.01 Clerk to Issue Process – Separate or Additional Summons
Upon the filing of a pleading requiring service of process, the clerk shall forthwith issue the required summons or other process and, unless otherwise provided, deliver it for service to the sheriff or other person specially appointed to serve it. If requested in writing by the party whose pleading requires service of process, the clerk shall deliver the summons or other process to such party who shall then be responsible for promptly serving it with a copy of the pleading. Upon written request of such party, separate or additional summons and other process shall be issued.(Adopted Jan. 19, 1973, effective Sept. 1, 1973. Amended June 1, 1993, effective Jan. 1. 1994.)Committee Note – 1974 [Repealed] (Repealed June 1, 1993, effective Jan. 1, 1994.)
Rule 54.02 Summons Shall be Signed by Clerk
The summons shall be signed by the clerk, dated the day it is issued, be under the seal of the court, contain the name of the court and the names of the parties, and be directed to the defendant, stating the name and address of the plaintiff’s attorney, if any; otherwise the plaintiff’s address. It also shall state the time within which and the place where the defendant is required to appear and defend as provided by law and shall notify the defendant that in case of failure to do so judgment by default will be entered against the defendant for the relief demanded in the petition.(Adopted Jan. 19, 1973, effective Sept. 1, 1973. Amended Sept. 28, 1993, effective Jan. 1, 1994.)Committee Note – 1974 This is substantially the same as prior Rule 54.02. Compare: Rule 4(b) of the Federal Rules of Civil Procedure.
Rule 54.03 Service of Process Within the State – By Whom [Repealed]
Repealed. (Adopted Jan. 19, 1973, effective Sept. 1, 1973; repealed June 1, 1993, effective Jan. 1, 1994.)
Rule 54.04 Summons – Service
A copy of the summons and petition shall be served together except when service is by publication.(Adopted Jan. 19, 1973, effective Sept. 1, 1973.)Committee Note – 1974 The source is prior Rule 54.04. A substantial part of the prior rule was deleted because official forms make the deleted language unnecessary. Compare: Rule 4(d) of the Federal Rules of Civil Procedure.
RULE 54.05 DEPUTIES ACTING FOR CLERK OR SHERIFF
A deputy clerk or deputy sheriff shall have the same authority as the clerk or sheriff, respectively, to do any act which this Rule 54 authorizes the clerk or sheriff to do.(Adopted Jan. 19, 1973, effective Sept. 1, 1973.)Committee Note – 1974 This is substantially the same as prior Rule 54.05. Compare: Rules 4(c) and 45(c) of the Federal Rules of Civil Procedure.
Rule 54.06 Service Outside the State on Persons, Firms or Corporations Who do Certain Acts in This State
(a) Service outside the state sufficient to authorize a general judgment in personam may be obtained upon any person, executor, administrator or other legal representative, firm or corporation, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts enumerated in this Rule 54.06:
(1) Transacts any business within this state;
(2) Makes any contract within this state;
(3) Commits a tortious act within this state;
(4) Owns, uses or possesses any real estate situated in this state;
(5) Contracts to insure any person, property or risk located within this state at the time of contracting;
(6) Engages in an act of sexual intercourse within this state with the mother of a child within or near the probable period of conception of that child.
(b) Service sufficient to authorize a general judgment in personam may be obtained on any person, any person’s personal representative, or other legal representative, whether or not a citizen or resident of the state who has lived in lawful marriage within this state, as to all civil actions for dissolution of marriage or for legal separation and all obligations arising for maintenance of a /b>Rule 54.08 Service on Nonresident Motorists or Nonresident Watercraft Owners or Operators
In civil actions in which service of process may be obtained under the provision of sections 506.200 to 506.310, 506.330, or 506.340, RSMo, service of process may be made as provided in Rule 54.14 or Rule 54.15 or Rule 54.16.(Adopted Jan. 19, 1973, effective Sept. 1, 1973. Amended June 1, 1993, effective Jan. 1, 1994; amended May 27, 1999, effective January 1, 2000.)
Rule 54.09 Service of Foreign Corporations
In civil actions in which the service of process may be obtained under the provisions of section 351.380, RSMo, service of process may be made as provided in Rule 54.14 or Rule 54.16.(Adopted Jan. 19, 1973, effective Sept. 1, 1973. Amended June 1, 1993, effective Jan. 1, 1994.)Committee Note – 1974 [Repealed] (Repealed June 1, 1993, effective Jan. 1, 1994.)
Rule 54.10 Service on Insurance Companies Not Authorized to do Business in This State
In civil actions in which service of process may be obtained under the provisions of section 375.256, RSMo, service of process may be made as provided in Rule 54.14 or Rule 54.15 or Rule 54.16.(Adopted Jan. 19, 1973, effective Sept. 1, 1973. Amended June 1, 1993, effective Jan. 1, 1994.)Committee Note – 1974 [Repealed] (Repealed June 1, 1993, effective Jan. 1, 1994.)
Rule 54.11 Service on Resident or Nonresident Motor Carrier
In civil actions in which service of process may be obtained under the provisions of section 508.070, RSMo, service of process may be made as provided in Rule 54.14 or Rule 54.15 or Rule 54.16.(Adopted Jan. 19, 1973, effective Sept. 1, 1973. Amended June 1, 1993, effective Jan. 1, 1994.)Committee Note – 1974 [Repealed] (Repealed June 1, 1993, effective Jan. 1, 1994.)
Rule 54.12 Service – In Rem or Quasi In Rem Civil Actions
(a) Service, Generally. In civil actions affecting a fund, will, trust, estate, specific property, or any interest therein, or any res or status within the jurisdiction of the court, service of process may be made as provided in Rule 54.13 or Rule 54.14, or as otherwise provided in this Rule 54.12.
(b) Service by Mail. A party requesting service by registered or certified mail shall file an affidavit made by the party or by someone on behalf of the party, stating:
(1) Why personal service cannot be had in this state on the party to be served by mail, and
(2) The name and address of the party to be served by mail. The clerk shall thereupon mail to the party to be served a summons and copy of the pleading by registered or certified mail, requesting a return receipt signed by addressee only.
(c) Service by Publication.
(1) Service by publication shall be by notice published by order of the court or clerk thereof.
(2) Such order shall issue when the party desiring service by publication files a statement verified by the party or by a person on behalf of the party stating: (A) that one or more of the persons to be served are unborn or their names are unknown to the party desiring service by publication or facts showing why service cannot be obtained under Rule 54.12 (b), Rule 54.13, Rule 54.14 or Rule 54.16, and (B) the last known address of the party to be served or in lieu thereof a statement that said address is unknown. It shall be sufficient to name or describe unborn or unknown parties as the heirs, grantees or successors of the person to whom the property to be affected was last known to have been transferred.
(3) The notice shall state: (A) that an action has been commenced; (B) briefly the object and general nature thereof; (C) a description of any property to be affected; (D) the name of the court and the names of the parties to the civil action; (E) the name and address of the attorney, if any, for plaintiff, otherwise the plaintiffs address; (F) that judgment by default will be entered against defendant unless the defendant files an answer or other pleading or otherwise appears and defends within forty-five days after the date of the first publication, or such longer time as the court may fix by order; and (G) the date of the first publication.
(4) The notice shall be published at least once each week for four consecutive weeks in a newspaper of general circulation published in the county where the civil action is commenced designated by the party requesting publication. If there is no such newspaper, then the publication shall be in a newspaper designated by the court.
(5) If the address of any of the parties to be served by publication is given in the verified statement, the clerk shall: (A) within ten days after such order of publication mail a copy of the order of publication of notice and a copy of the petition to each such defendant and (B) file a certificate that such copies have been mailed.(Adopted Jan. 19, 1973, effective Sept. 1, 1973. Amended June 1, 1993, effective Jan. 1, 1994; April 23, 1996, effective Jan. 1, 1997.) Committee Note – 1974 [Repealed] (Repealed June 1, 1993, effective Jan. 1, 1994.)
Rule 54.13 Personal Service Within the State
(a) By Whom Made. Service of process within the state, except as otherwise provided by law, shall be made by the sheriff or a person over the age of 18 years who is not a party to the action.
(b) How and on Whom Made. Personal service within the state shall be made as follows:
(1) On Individual. Upon an individual, including an infant or incompetent person not having a legally appointed guardian, by delivering a copy of the summons and petition personally to the individual or by leaving a copy of the summons and petition at the individual’s dwelling house or usual place of abode with some person of the individual’s family over the age of fifteen years, or by delivering a copy of the summons and petition to an agent authorized by appointment or required by law to receive service of process.
(2) On Conservator. Upon an infant or disabled or incapacitated person who has a legally appointed conservator, by delivering a copy of the summons and petition to the conservator as provided in Rule 54.13(b)(1).
(3) On Corporation, Partnership or Other Unincorporated Association. Upon a domestic or foreign corporation or upon a partnership or other unincorporated association, when it may be sued as such, by delivering a copy of the summons and petition to an officer, partner, or managing or general agent, or by leaving the copies at any business office of the defendant with the person having charge thereof or by delivering copies to its registered agent or to any other agent authorized by appointment or required by law to receive service of process.
(4) On Public or Quasi-Public Corporation or Body. Upon a public, municipal, governmental or quasi-public corporation or body, by delivering a copy of the summons and petition to the clerk of the county court in the case of a county, to the mayor or city clerk or city attorney in the case of a city, to the chief executive officer in the case of any public, municipal, governmental or quasi-public corporation or body or to any person otherwise lawfully so designated. If no person above specified is available for service, the court out of which the process issued may designate an appropriate person to whom copies of the summons and petition may be delivered in order to effect service.
(c) Acknowledgment of Service. When a defendant shall acknowledge in writing, endorsed on the process, signed by the defendant’s own proper signature, the service of such process, and waive the necessity of the service thereof by an officer, such acknowledgment shall be deemed as valid as service in the manner provided by law. Acknowledgment of service by mail may also be made as provided in Rule 54.16.
(d) Where Process May Be Served in This State. All process issued for service within this state may be served anywhere within the state and may be forwarded to the sheriff of any county for the purpose of service.(Adopted Jan. 19, 1973, effective Sept. 1, 1973. Amended June 1, 1993, effective Jan. 1, 1994.)Committee Note – 1974 [Repealed] (Repealed June 1, 1993, effective Jan. 1, 1994.)
Rule 54.14 Personal Service Outside the State
(a) By Whom Made. Personal service outside the state shall be made:
(1) By a person authorized by law to serve process in civil actions within the state or territory where such service is made, or by the deputy of a person so authorized;
(2) By a person appointed by the court in which the action is pending.
(b) Upon Whom. The service of process shall be made as provided in Rule 54.13(b).
(c) Acknowledgment. Acknowledgment of service by mail may be made as provided in Rule 54.16.(Adopted Jan. 19, 1973, effective Sept. 1, 1973. Amended June 1, 1993, effective Jan. 1, 1994.)Committee Note – 1974 [Repealed] (Repealed June 1, 1993, effective Jan. 1, 1994.)
Rule 54.15 Service on Secretary of State, Secretary of Public Service Commission and Director of Insurance
(a) Service of Process. Service of process on the secretary of state, secretary of the public service commission or director of insurance shall be made by serving a copy of the summons and petition, together with any remittance fixed by statute, on the respective official. The service of process shall be made as provided in Rule 54.13 or Rule 54.16.
(b) Notice to Defendant. The secretary of state, secretary of the public service commission or director of the department of insurance shall forthwith mail to the defendant at the defendant’s last known address a copy of such service and a copy of the summons and petition. The mailing shall be by registered or certified mail requesting a return receipt signed by addressee only.
(c) Form of Notice. The notice provided for in Rule 54.15 (b) shall be in substantially the following form:
To _______(here insert the name of the defendant and defendant’s last known address.)You will take notice that original process in the suit against you, a copy of which is attached hereto, was duly served upon you at _______(city), Missouri, by serving the same on _______(here insert the name of the public official.) Dated at __________________, Missouri, this ________ day of _______, 20__. _____________________(appropriate official)(Adopted Jan. 19, 1973, effective Sept. 1, 1973. Amended June 1, 1993, effective Jan. 1, 1994.)Committee Note – 1974 [Repealed] (Repealed June 1, 1993, effective Jan. 1, 1994.)
Rule 54.16 Acknowledgement of Service by Mail
Service of the summons and petition upon a resident or nonresident defendant of any class referred to in Rule 54.13(b)(1) (2) or (3) may be made by mailing a copy of the summons and petition by first class mail, postage prepaid, to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to Civil Procedure Form 4B or Civil Procedure Form 4C and a return envelope, postage prepaid addressed to the sender. If no acknowledgment of service under this Rule 54.16 is completed and returned to the sender, service of the summons and petition shall be made as otherwise provided by statute or rule. Unless good cause is shown for not doing so, the court shall order the payment of costs of service on the person served if such person does not complete and return within thirty days after mailing, the notice and acknowledgment of receipt of summons.(Adopted Jan. 19, 1973, effective Sept. 1, 1973. Amended June 14, 1988, effective Jan. 1, 1989; June 1, 1993, effective Jan. 1, 1994.) Committee Note – 1974 [Repealed] (Repealed June 1, 1993, effective Jan. 1, 1994.)
Rule 54.17 Service by Publication [Repealed]
Repealed.(Adopted Jan. 19, 1973, effective Sept. 1, 1973; repealed June 1, 1993, effective Jan. 1, 1994.)
Rule 54.18 Service Authorized by Statue
Where a statute contains provisions for a method of service, service may be made pursuant to the provisions of the statute or as provided by these Rules.(Adopted Jan. 19, 1973, effective Sept. 1, 1973.)Committee Note – 1974 This is new.
Rule 54.19 Provisions No Bar to Personal Service in State
The foregoing provisions relative to service of process in suits against non-residents do not prevent personal service in the state upon a non-resident.(Adopted Jan. 19, 1973, effective Sept. 1, 1973.)Committee Note – 1974 This is substantially the same as prior Rule 54.18.
Rule 54.20 Proof of Service
(a) Within the State-Officer’s Returns-Affidavits of Service.
(1) Every officer to whom summons or other process shall be delivered for service within the state shall make return thereof in writing as to the time, place and manner of service of such writ and shall sign such return.
(2) If service of such process is made by a person other than an officer such person shall make affidavit as to the time, place and manner of service thereof.
(3) If service of process is made pursuant to Rule 54.16, the defendant’s acknowledgment, executed pursuant to Rule 54.16, shall constitute proof of service.
(b) Outside the State-Officer’s Returns-Affidavits of Service.
(1) Every officer to whom summons or other process shall be delivered for service outside the state shall make an affidavit before the clerk or judge of the court of which affiant is an officer or other person authorized to administer oaths in such state stating the time, place and manner of such service, the official character of the affiant, and the affiant’s authority to serve process in civil actions within the state or territory where such service was made. The court may consider the affidavit or any other evidence in determining whether service has been properly made.
(2) If service of such process is made by a person appointed by the court in which the action is pending such person shall file an affidavit stating the time, place and manner of such service. The court may consider the affidavit or any other evidence in determining whether service has been properly made.
(3) If service of process is made outside the state pursuant to Rule 54.16, the defendant’s acknowledgment, executed pursuant to Rule 54.16, shall constitute proof of service of process.
(c) Certificate of Secretary of State, Secretary of Public Service Commission and Director of Insurance Mailing of Notice. The notice specified in Rule 54.15 shall be proved by the affidavit of the official mailing such notice. The affidavit shall be endorsed upon or attached to the original papers to which it relates and it, together with the return registered or certified mail receipt, shall be forthwith filed in the court in which the action is pending.
(d) Clerk’s Certificate Service by Mail. Service by mail pursuant to Rule 54.12 shall be proved by the certificate of the clerk that a copy of the summons and petition has been mailed and by the filing of the return registered or certified receipt.
(e) Affidavit Certificate Service by Publication. Service by publication shall be proved by an affidavit showing the dates upon which and the newspaper in which the notice was published. A copy of the notice shall be attached to the affidavit which shall be filed. The clerk’s certificate that a copy of the notice upon order for service by publication and a copy of the petition were mailed to defendant at the address stated in the plaintiff’s petition or in the affidavit for order of publication and the date of the mailing shall likewise be filed.
(f) Refusal to Receive Service. When the person to be served or an agent authorized to accept service of process for the person to be served, either within or outside the state, shall refuse to receive copies thereof, the offer of the server to deliver copies thereof, and such refusal, when these facts are shown on the server’s return, shall constitute proof of service. When service is made by mail pursuant to Rule 54.12, a notation made pursuant to applicable United States Postal Service regulation that the certified or registered mail has been refused shall constitute proof of service.(Adopted Jan. 19, 1973, effective Sept. 1, 1973. Amended June 5, 1980, effective Jan. 1, 1981; amended by L.1988, H.B.No. 1660, effective Aug. 13, 1988; amended June 14, 1988, effective Jan. 1, 1989; June 2, 1992, effective Jan. 1, 1993; June 1, 1993, effective Jan. 1, 1994.)Committee Note – 1974 [Repealed] (Repealed June 1, 1993, effective Jan. 1, 1994.)
Rule 54.21 Time for Service and Return
The officer or other person receiving a summons or other process shall serve the same and make return of service promptly. If the process cannot be served it shall be returned to the court within thirty days after the date of issue with a statement of the reason for the failure to serve the same; provided, however, that the time for service thereof may be extended up to ninety days from the date of issue by order of the court.(Adopted Jan. 19, 1973, effective Sept. 1, 1973.)Committee Note – 1974 This is substantially the same as prior Rule 54.10 (d). Compare: Rule 4(g) of the Federal Rules of Civil Procedure.
Rule 54.22 Court May Allow Process, Return of Proof of Service to be Amended, When
(a) The court may in its discretion allow any process, return or proof of service thereof to be filed or amended at any time unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued. The return of service shall be considered prima facie evidence of the facts recited therein.
(b) The party served, or the sheriff, sheriff’s deputies and sureties or any other person making the service shall be permitted to show the true facts of service and impeach the return when the return does not comport with the facts as found by the court. If the court finds that the facts recited in the return are not true, the court may set aside a judgment if one has been entered or may modify the same in whole or in part as justice may require or take such further action it deems proper.(Adopted Jan. 19, 1973, effective Sept. 1, 1973. Amended by L. 1984, H.B. No. 947, p. 792, § 1, effective Aug. 13, 1984; June 1, 1993, effective Jan. 1, 1994.)Committee Note – 1974 [Repealed] (Repealed June 1, 1993, effective Jan. 1, 1994.)
Rule 57.09 Subpoena forTaking Deposition
(a) For Attendance of Witnesses; Form; Issuance. Every subpoena shall be issued by the officer or person before whom depositions may be taken as designated in Rule 57.05 or 57.06 or by the clerk of the court in which the civil action is pending, shall state the name of the court and the title of the civil action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified.
(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 or 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, by a sheriff’s deputy, or by any other person who is not a party and is not less than eighteen years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to that person the fees and mileage the witness would have been entitled to receive for attending court pursuant to subpoena.
(d) Authorization to Issue Subpoena. Proof of service of a notice to take a deposition as provided in Rules 57.03 and 57.04 is sufficient to authorize the issuance of a subpoena for taking a deposition.
(e) Contempt. Any person who without adequate excuse fails to obey a subpoena served upon the person may be held in contempt of the court in which the civil action is pending.(Adopted March 29, 1974, effective Jan. 1, 1976. Amended Sept. 28, 1993, effective Jan. 1, 1994.)Committee Note – 1974 The sources are prior Rules 57.06 (b), 57.19, 57.20 and 57.38 and Rule 45 of the Federal Rules of Civil Procedure. Compare: Rule 45 of the Federal Rules of Civil Procedure.
Topics: Process Service | No Comments »
Florida Foreclosure Process Service Laws
By admin | April 9, 2010
48.011 Process; how directed.–Summons, subpoenas, and other process in civil actions run throughout the state. All process except subpoenas shall be directed to all and singular the sheriffs of the state.History.–s. 1, ch. 4397, 1895; GS 1397; RGS 2594; CGL 4234; s. 2, ch. 29737, 1955; s. 4, ch. 67-254.Note.–Former s. 47.08.48.021 Process; by whom served.–(1) All process shall be served by the sheriff of the county where the person to be served is found, except initial nonenforceable civil process may be served by a special process server appointed by the sheriff as provided for in this section or by a certified process server as provided for in ss. 48.25-48.31. Witness subpoenas may be served by any person authorized by rules of procedure.(2)(a) The sheriff of each county may, in his or her discretion, establish an approved list of natural persons designated as special process servers. The sheriff shall add to such list the names of those natural persons who have met the requirements provided for in this section. Each natural person whose name has been added to the approved list is subject to annual recertification and reappointment by the sheriff. The sheriff shall prescribe an appropriate form for application for appointment. A reasonable fee for the processing of the application shall be charged.(b) A person applying to become a special process server shall:1. Be at least 18 years of age.2. Have no mental or legal disability.3. Be a permanent resident of the state.4. Submit to a background investigation that includes the right to obtain and review the criminal record of the applicant.5. Obtain and file with the application a certificate of good conduct that specifies there is no pending criminal case against the applicant and that there is no record of any felony conviction, nor a record of a misdemeanor involving moral turpitude or dishonesty, with respect to the applicant within the past 5 years.6. Submit to an examination testing the applicant’s knowledge of the laws and rules regarding the service of process. The content of the examination and the passing grade thereon, and the frequency and the location at which the examination is offered must be prescribed by the sheriff. The examination must be offered at least once annually.7. Take an oath that the applicant will honestly, diligently, and faithfully exercise the duties of a special process server.(c) The sheriff may prescribe additional rules and requirements directly related to subparagraphs (b)1.-7. regarding the eligibility of a person to become a special process server or to have his or her name maintained on the list of special process servers.(d) An applicant who completes the requirements of this section must be designated as a special process server provided that the sheriff of the county has determined that the appointment of special process servers is necessary or desirable. Each special process server must be issued an identification card bearing his or her identification number, printed name, signature and photograph, and an expiration date. Each identification card must be renewable annually upon proof of good standing.(e) The sheriff shall have the discretion to revoke an appointment at any time that he or she determines a special process server is not fully and properly discharging the duties as a special process server. The sheriff shall institute a program to determine whether the special process servers appointed as provided for in this section are faithfully discharging their duties pursuant to such appointment, and a reasonable fee may be charged for the costs of administering such program.(3) A special process server appointed in accordance with this section shall be authorized to serve process in only the county in which the sheriff who appointed him or her resides and may charge a reasonable fee for his or her services.(4) Any special process server shall be disinterested in any process he or she serves; and if the special process server willfully and knowingly executes a false return of service or otherwise violates the oath of office, he or she shall be guilty of a felony of the third degree, punishable as provided for in s. 775.082, s. 775.083, or s. 775.084, and shall be permanently barred from serving process in Florida.History.–s. 16, July 22, 1845; s. 1, ch. 3721, 1887; RS 1014, 1246; GS 1401; RGS 2598; s. 1, ch. 9318, 1923; CGL 4238; s. 4, ch. 67-254; s. 12, ch. 73-334; s. 1, ch. 76-263; s. 2, ch. 79-396; s. 1, ch. 81-266; s. 1, ch. 88-135; s. 2, ch. 91-306; s. 268, ch. 95-147; s. 16, ch. 98-34.Note.–Former s. 47.12.48.031 Service of process generally; service of witness subpoenas.–(1)(a) Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section.(b) Employers, when contacted by an individual authorized to make service of process, shall permit the authorized individual to make service on employees in a private area designated by the employer.(2)(a) Substitute service may be made on the spouse of the person to be served at any place in the county, if the cause of action is not an adversary proceeding between the spouse and the person to be served, if the spouse requests such service, and if the spouse and person to be served are residing together in the same dwelling.(b) Substitute service may be made on an individual doing business as a sole proprietorship at his or her place of business, during regular business hours, by serving the person in charge of the business at the time of service if two or more attempts to serve the owner have been made at the place of business.(3) The service of process of witness subpoenas, whether in criminal cases or civil actions, is to be made as provided in subsection (1). However, service of a subpoena on a witness in a criminal traffic case, a misdemeanor case, or a second degree or third degree felony may be made by certified United States mail directed to the witness at the last known address, and such service must be mailed at least 7 days prior to the date of the witness’s required appearance.(4)(a) Service of a criminal witness subpoena upon a law enforcement officer or upon any federal, state, or municipal employee called to testify in an official capacity in a criminal case may be made as provided in subsection (1) or by delivery to a designated supervisory or administrative employee at the witness’s place of employment if the agency head or highest ranking official at the witness’s place of employment has designated such employee to accept such service. However, no such designated employee is required to accept service:1. For a witness who is no longer employed by the agency at that place of employment;2. If the witness is not scheduled to work prior to the date the witness is required to appear; or3. If the appearance date is less than 5 days from the date of service.
The agency head or highest ranking official at the witness’s place of employment may determine the days of the week and the hours that service may be made at the witness’s place of employment.(b) Service may also be made in accordance with subsection (3) provided that the person who requests the issuance of the criminal witness subpoena shall be responsible for mailing the subpoena in accordance with that subsection and for making the proper return of service to the court.History.–s. 5, Nov. 23, 1828; RS 1015; GS 1402; RGS 2599; CGL 4246; s. 6, ch. 29737, 1955; s. 4, ch. 67-254; s. 1, ch. 75-34; s. 3, ch. 79-396; s. 3, ch. 82-118; s. 1, ch. 84-339; s. 7, ch. 85-80; s. 2, ch. 87-405; s. 6, ch. 93-208; s. 269, ch. 95-147; s. 1, ch. 95-172; s. 1, ch. 98-410.Note.–Former s. 47.13.48.041 Service on minor.–(1) Process against a minor who has never been married shall be served:(a) By serving a parent or guardian of the minor as provided for in s. 48.031 or, when there is a legal guardian appointed for the minor, by serving the guardian as provided for in s. 48.031.(b) By serving the guardian ad litem or other person, if one is appointed by the court to represent the minor. Service on the guardian ad litem is unnecessary when he or she appears voluntarily or when the court orders the appearance without service of process on him or her.(2) In all cases heretofore adjudicated in which process was served on a minor as prescribed by any law heretofore existing, the service was lawfully made, and no proceeding shall be declared irregular or illegal if a guardian ad litem appeared for the minor.History.–ss. 1, 2, ch. 7853, 1919; CGL 4273, 4274; s. 1, ch. 19175, 1939; CGL 1940 Supp. 4274(13); s. 2, ch. 29737, 1955; s. 4, ch. 67-254; s. 1, ch. 84-176; s. 270, ch. 95-147.Note.–Former ss. 47.23-47.25.48.042 Service on incompetent.–(1) Process against an incompetent shall be served:(a) By serving two copies of the process to the person who has care or custody of the incompetent or, when there is a legal guardian appointed for the incompetent, by serving the guardian as provided in s. 48.031.(b) By serving the guardian ad litem or other person, if one is appointed by the court to represent the incompetent. Service on the guardian ad litem is unnecessary when he or she appears voluntarily or when the court orders the appearance without service of process on him or her.(2) In all cases heretofore adjudicated in which process was served on an incompetent as prescribed by any law heretofore existing, the service was lawfully made, and no proceeding shall be declared irregular or illegal if a guardian ad litem appeared for the incompetent.History.–s. 2, ch. 84-176; s. 271, ch. 95-147.48.051 Service on state prisoners.–Process against a state prisoner shall be served on the prisoner.History.–s. 30, ch. 3883, 1889; RS 3043; GS 4124; RGS 6243; CGL 8580; s. 1, ch. 21992, 1943; s. 1, ch. 25041, 1949; s. 44, ch. 57-121; s. 4, ch. 67-254; ss. 19, 35, ch. 69-106; s. 13, ch. 71-355.Note.–Former s. 47.26.48.061 Service on partnerships and limited partnerships.–(1) Process against a partnership shall be served on any partner and is as valid as if served on each individual partner. If a partner is not available during regular business hours to accept service on behalf of the partnership, he or she may designate an employee to accept such service. After one attempt to serve a partner or designated employee has been made, process may be served on the person in charge of the partnership during regular business hours. After service on any partner, plaintiff may proceed to judgment and execution against that partner and the assets of the partnership. After service on a designated employee or other person in charge, plaintiff may proceed to judgment and execution against the partnership assets but not against the individual assets of any partner.(2) Process against a domestic limited partnership may be served on any general partner or on the agent for service of process specified in its certificate of limited partnership or in its certificate as amended or restated and is as valid as if served on each individual member of the partnership. After service on a general partner or the agent, the plaintiff may proceed to judgment and execution against the limited partnership and all of the general partners individually. If a general partner cannot be found in this state and service cannot be made on an agent because of failure to maintain such an agent or because the agent cannot be found or served with the exercise of reasonable diligence, service of process may be effected by service upon the Secretary of State as agent of the limited partnership as provided for in s. 48.181. Service of process may be made under ss. 48.071 and 48.21 on limited partnerships.(3) Process against a foreign limited partnership may be served on any general partner found in the state or on any agent for service of process specified in its application for registration and is as valid as if served on each individual member of the partnership. If a general partner cannot be found in this state and an agent for service of process has not been appointed or, if appointed, the agent’s authority has been revoked or the agent cannot be found or served with the exercise of reasonable diligence, service of process may be effected by service upon the Secretary of State as agent of the limited partnership as provided for in s. 48.181, or process may be served as provided in ss. 48.071 and 48.21.History.–s. 13, Nov. 23, 1828; RS 1017; GS 1404; RGS 2601; CGL 4248; s. 4, ch. 67-254; s. 74, ch. 86-263; s. 3, ch. 87-405; s. 272, ch. 95-147.Note.–Former s. 47.15.48.071 Service on agents of nonresidents doing business in the state.–When any natural person or partnership not residing or having a principal place of business in this state engages in business in this state, process may be served on the person who is in charge of any business in which the defendant is engaged within this state at the time of service, including agents soliciting orders for goods, wares, merchandise or services. Any process so served is as valid as if served personally on the nonresident person or partnership engaging in business in this state in any action against the person or partnership arising out of such business. A copy of such process with a notice of service on the person in charge of such business shall be sent forthwith to the nonresident person or partnership by registered or certified mail, return receipt requested. An affidavit of compliance with this section shall be filed before the return day or within such further time as the court may allow.History.–s. 1, ch. 59-280; s. 4, ch. 67-254; s. 273, ch. 95-147.Note.–Former s. 47.161.48.081 Service on corporation.–(1) Process against any private corporation, domestic or foreign, may be served:(a) On the president or vice president, or other head of the corporation;(b) In the absence of any person described in paragraph (a), on the cashier, treasurer, secretary, or general manager;(c) In the absence of any person described in paragraph (a) or paragraph (b), on any director; or(d) In the absence of any person described in paragraph (a), paragraph (b), or paragraph (c), on any officer or business agent residing in the state.(2) If a foreign corporation has none of the foregoing officers or agents in this state, service may be made on any agent transacting business for it in this state.(3) As an alternative to all of the foregoing, process may be served on the agent designated by the corporation under s. 48.091. However, if service cannot be made on a registered agent because of failure to comply with s. 48.091, service of process shall be permitted on any employee at the corporation’s place of business.(4) This section does not apply to service of process on insurance companies.(5) When a corporation engages in substantial and not isolated activities within this state, or has a business office within the state and is actually engaged in the transaction of business therefrom, service upon any officer or business agent while on corporate business within this state may personally be made, pursuant to this section, and it is not necessary in such case that the action, suit, or proceeding against the corporation shall have arisen out of any transaction or operation connected with or incidental to the business being transacted within the state.History.–s. 8, Nov. 21, 1829; s. 2, Feb. 11, 1834; s. 1, ch. 3590, 1885; RS 1019; GS 1406; s. 1, ch. 6908, 1915; s. 1, ch. 7752, 1918; RGS 2604; CGL 4251; s. 1, ch. 57-97; ss. 1, 2, 3, ch. 59-46; s. 4, ch. 67-254; s. 1, ch. 67-399; s. 6, ch. 79-396; s. 7, ch. 83-216; s. 1, ch. 84-2.Note.–Former s. 47.17.48.091 Corporations; designation of registered agent and registered office.–(1) Every Florida corporation and every foreign corporation now qualified or hereafter qualifying to transact business in this state shall designate a registered agent and registered office in accordance with chapter 607.(2) Every corporation shall keep the registered office open from 10 a.m. to 12 noon each day except Saturdays, Sundays, and legal holidays, and shall keep one or more registered agents on whom process may be served at the office during these hours. The corporation shall keep a sign posted in the office in some conspicuous place designating the name of the corporation and the name of its registered agent on whom process may be served.History.–ss. 1, 2, 11, 13, 14, ch. 11829, 1927; CGL 4257, 4258, 4267, 4269, 4270; ss. 1, 2, ch. 20842, 1941; s. 1, ch. 29873, 1955; s. 24, ch. 57-1; s. 1, ch. 63-241; s. 1, ch. 65-32; s. 4, ch. 67-254; s. 2, ch. 67-562; ss. 10, 35, ch. 69-106; s. 3, ch. 71-114; s. 1, ch. 71-269; s. 28, ch. 71-377; s. 1, ch. 76-209.Note.–Former ss. 47.34, 47.35, 47.42, 47.43, 47.45, 47.50.48.101 Service on dissolved corporations.–Process against the directors of any corporation which was dissolved before July 1, 1990, as trustees of the dissolved corporation shall be served on one or more of the directors of the dissolved corporation as trustees thereof and binds all of the directors of the dissolved corporation as trustees thereof. Process against any other dissolved corporation shall be served in accordance with s. 48.081.History.–s. 1, ch. 19064, 1939; CGL 1940 Supp. 4251(1); s. 4, ch. 67-254; s. 3, ch. 97-230.Note.–Former s. 47.22.48.111 Service on public agencies and officers.–(1) Process against any municipal corporation, agency, board, or commission, department, or subdivision of the state or any county which has a governing board, council, or commission or which is a body corporate shall be served:(a) On the president, mayor, chair, or other head thereof; and in his or her absence;(b) On the vice president, vice mayor, or vice chair, or in the absence of all of the above;(c) On any member of the governing board, council, or commission.(2) Process against any public agency, board, commission, or department not a body corporate or having a governing board or commission shall be served on the public officer being sued or the chief executive officer of the agency, board, commission, or department.(3) In any suit in which the Department of Revenue or its successor is a party, process against the department shall be served on the executive director of the department. This procedure is to be in lieu of any other provision of general law, and shall designate said department to be the only state agency or department to be so served.History.–ss. 1, 2, ch. 3242, 1881; RS 581, 1021, 1022; GS 774, 1408, 1409; RGS 1494, 2606, 2607; CGL 2203, 4253, 4254; s. 4, ch. 67-254; s. 1, ch. 73-73; s. 8, ch. 83-216; s. 274, ch. 95-147.Note.–Former ss. 47.20, 47.21.48.121 Service on the state.–When the state has consented to be sued, process against the state shall be served on the state attorney or an assistant state attorney for the judicial circuit within which the action is brought and by sending two copies of the process by registered or certified mail to the Attorney General. The state may serve motions or pleadings within 40 days after service is made. This section is not intended to authorize the joinder of the Attorney General or a state attorney as a party in such suit or prosecution.History.–s. 2, ch. 29724, 1955; s. 4, ch. 67-254; s. 7, ch. 2001-266.Note.–Former s. 69.18.48.131 Service on alien property custodian.–In every action or proceeding in any court or before any administrative board involving real, personal, or mixed property, or any interest therein, when service of process or notice is required or directed to be made upon any person, firm or corporation located, or believed to be located, within any country or territory in the possession of or under the control of any country between which and the United States a state of war exists, in addition to the giving of the notice or service of process, a copy of the notice or process shall be sent by registered or certified mail to the alien property custodian, addressed to him or her at Washington, District of Columbia; but failure to mail a copy of the notice or process to the alien property custodian does not invalidate the action or proceeding.History.–s. 1, ch. 22074, 1943; s. 4, ch. 67-254; s. 275, ch. 95-147.Note.–Former s. 47.51.48.141 Service on labor unions.–Process against labor organizations shall be served on the president or other officer, business agent, manager or person in charge of the business of such labor organization.History.–s. 4, ch. 67-254.48.151 Service on statutory agents for certain persons.–(1) When any law designates a public officer, board, agency, or commission as the agent for service of process on any person, firm, or corporation, service of process thereunder shall be made by leaving two copies of the process with the public officer, board, agency, or commission or in the office thereof, or by mailing said copies to the public officer, board, agency, or commission. The public officer, board, agency, or commission so served shall file one copy in his or her or its records and promptly send the other copy, by registered or certified mail, to the person to be served as shown by his or her or its records. Proof of service on the public officer, board, agency, or commission shall be by a notice accepting the process which shall be issued by the public officer, board, agency, or commission promptly after service and filed in the court issuing the process. The notice accepting service shall state the date upon which the copy of the process was mailed by the public officer, board, agency, or commission to the person being served and the time for pleading prescribed by the rules of procedure shall run from this date. The service is valid service for all purposes on the person for whom the public officer, board, agency, or commission is statutory agent for service of process.(2) This section does not apply to substituted service of process on nonresidents.(3) The Insurance Commissioner and Treasurer or his or her assistant or deputy or another person in charge of the office is the agent for service of process on all insurers applying for authority to transact insurance in this state, all licensed nonresident insurance agents, all nonresident disability insurance agents licensed by the Department of Insurance pursuant to s. 626.835, any unauthorized insurer under s. 626.906 or s. 626.937, domestic reciprocal insurers, fraternal benefit societies under chapter 632, automobile inspection and warranty associations, ambulance service associations, and persons required to file statements under s. 628.461.(4) The Comptroller is the agent for service of process for any issuer as defined in s. 517.021, or any dealer, investment adviser, or associated person registered with the Department of Banking and Finance, for any violation of any provision of chapter 517.(5) The Secretary of State is the agent for service of process for any retailer, dealer or vendor who has failed to designate an agent for service of process as required under s. 212.151 for violations of chapter 212.History.–s. 4, ch. 67-254; ss. 10, 12, 13, 35, ch. 69-106; s. 14, ch. 71-355; s. 29, ch. 71-377; s. 2, ch. 76-100; s. 16, ch. 79-164; s. 4, ch. 83-215; s. 1, ch. 87-316; s. 10, ch. 90-248; s. 276, ch. 95-147.48.161 Method of substituted service on nonresident.–(1) When authorized by law, substituted service of process on a nonresident or a person who conceals his or her whereabouts by serving a public officer designated by law shall be made by leaving a copy of the process with a fee of $8.75 with the public officer or in his or her office or by mailing the copies by certified mail to the public officer with the fee. The service is sufficient service on a defendant who has appointed a public officer as his or her agent for the service of process. Notice of service and a copy of the process shall be sent forthwith by registered or certified mail by the plaintiff or his or her attorney to the defendant, and the defendant’s return receipt and the affidavit of the plaintiff or his or her attorney of compliance shall be filed on or before the return day of the process or within such time as the court allows, or the notice and copy shall be served on the defendant, if found within the state, by an officer authorized to serve legal process, or if found without the state, by a sheriff or a deputy sheriff of any county of this state or any duly constituted public officer qualified to serve like process in the state or jurisdiction where the defendant is found. The officer’s return showing service shall be filed on or before the return day of the process or within such time as the court allows. The fee paid by the plaintiff to the public officer shall be taxed as cost if he or she prevails in the action. The public officer shall keep a record of all process served on him or her showing the day and hour of service.(2) If any person on whom service of process is authorized under subsection (1) dies, service may be made on his or her administrator, executor, curator, or personal representative in the same manner.(3) This section does not apply to persons on whom service is authorized under s. 48.151.(4) The public officer may designate some other person in his or her office to accept service.History.–ss. 2, 4, ch. 17254, 1935; CGL 1936 Supp. 4274 (8), (10); s. 1, ch. 59-382; s. 4, ch. 67-254; s. 4, ch. 71-114; s. 1, ch. 71-308; s. 57, ch. 90-132; s. 277, ch. 95-147.Note.–Former ss. 47.30, 47.32.48.171 Service on nonresident motor vehicle owners, etc.–Any nonresident of this state, being the operator or owner of any motor vehicle, who accepts the privilege extended by the laws of this state to nonresident operators and owners, of operating a motor vehicle or of having it operated, or of permitting any motor vehicle owned, or leased, or controlled by him or her to be operated with his or her knowledge, permission, acquiescence, or consent, within the state, or any resident of this state, being the licensed operator or owner of or the lessee, or otherwise entitled to control any motor vehicle under the laws of this state, who becomes a nonresident or conceals his or her whereabouts, by the acceptance or licensure and by the operation of the motor vehicle, either in person, or by or through his or her servants, agents, or employees, or by persons with his or her knowledge, acquiescence, and consent within the state constitutes the Secretary of State his or her agent for the service of process in any civil action begun in the courts of the state against such operator or owner, lessee, or other person entitled to control of the motor vehicle, arising out of or by reason of any accident or collision occurring within the state in which the motor vehicle is involved.History.–s. 1, ch. 17254, 1935; CGL 1936 Supp. 4274(7); ss. 1, 2, ch. 25003, 1949; s. 4, ch. 67-254; s. 278, ch. 95-147.Note.–Former s. 47.29.48.181 Service on nonresident engaging in business in state.–(1) The acceptance by any person or persons, individually or associated together as a copartnership or any other form or type of association, who are residents of any other state or country, and all foreign corporations, and any person who is a resident of the state and who subsequently becomes a nonresident of the state or conceals his or her whereabouts, of the privilege extended by law to nonresidents and others to operate, conduct, engage in, or carry on a business or business venture in the state, or to have an office or agency in the state, constitutes an appointment by the persons and foreign corporations of the Secretary of State of the state as their agent on whom all process in any action or proceeding against them, or any of them, arising out of any transaction or operation connected with or incidental to the business or business venture may be served. The acceptance of the privilege is signification of the agreement of the persons and foreign corporations that the process against them which is so served is of the same validity as if served personally on the persons or foreign corporations.(2) If a foreign corporation has a resident agent or officer in the state, process shall be served on the resident agent or officer.(3) Any person, firm, or corporation which sells, consigns, or leases by any means whatsoever tangible or intangible personal property, through brokers, jobbers, wholesalers, or distributors to any person, firm, or corporation in this state is conclusively presumed to be both engaged in substantial and not isolated activities within this state and operating, conducting, engaging in, or carrying on a business or business venture in this state.History.–s. 1, ch. 6224, 1911; RGS 2602; CGL 4249; s. 1, ch. 26657, 1951; s. 1, ch. 57-747; s. 4, ch. 67-254; s. 2, ch. 84-2; s. 279, ch. 95-147.Note.–Former s. 47.16.48.183 Service of process in action for possession of premises.–(1) In an action for possession of residential premises or nonresidential premises, if the tenant cannot be found in the county or there is no person 15 years of age or older residing at the tenant’s usual place of abode in the county after at least two attempts to obtain service as provided above in this subsection, summons may be served by attaching a copy to a conspicuous place on the property described in the complaint or summons. The minimum time delay between the two attempts to obtain service shall be 6 hours. Nothing herein shall be construed as prohibiting service of process on a tenant as is otherwise provided on defendants in civil cases.(2) If a landlord causes or anticipates causing a defendant to be served with a summons and complaint solely by attaching them to some conspicuous place on the property described in the complaint or summons, the landlord shall provide the clerk of the court with an additional copy of the complaint and a prestamped envelope addressed to the defendant at the premises involved in the proceeding. The clerk of the court shall immediately mail the copy of the summons and complaint by first-class mail, note the fact of mailing in the docket, and file a certificate in the court file of the fact and date of mailing. Service shall be effective on the date of posting or mailing, whichever occurs later, and at least 5 days must elapse from the date of service before a judgment for final removal of the defendant may be entered.History.–s. 4, ch. 73-330; s. 1, ch. 75-34; s. 1, ch. 83-39; s. 2, ch. 84-339; s. 4, ch. 87-405; s. 1, ch. 88-379; s. 3, ch. 94-170; s. 2, ch. 98-410.48.19 Service on nonresidents operating aircraft or watercraft in the state.–The operation, navigation, or maintenance by a nonresident of an aircraft or a boat, ship, barge, or other watercraft in the state, either in person or through others, and the acceptance thereby by the nonresident of the protection of the laws of this state for the aircraft or watercraft, or the operation, navigation, or maintenance by a nonresident of an aircraft or a boat, ship, barge, or other watercraft in the state, either in person or through others, other than under the laws of the state, or any person who is a resident of the state and who subsequently becomes a nonresident or conceals his or her whereabouts, constitutes an appointment by the nonresident of the Secretary of State as the agent of the nonresident or concealed person on whom all process may be served in any action or proceeding against the nonresident or concealed person growing out of any accident or collision in which the nonresident or concealed person may be involved while, either in person or through others, operating, navigating, or maintaining an aircraft or a boat, ship, barge, or other watercraft in the state. The acceptance by operation, navigation, or maintenance in the state of the aircraft or watercraft is signification of the nonresident’s or concealed person’s agreement that process against him or her so served shall be of the same effect as if served on him or her personally.History.–s. 1, ch. 59-148; s. 1, ch. 65-118; s. 4, ch. 67-254; s. 2, ch. 70-90; s. 280, ch. 95-147.Note.–Former s. 47.162.48.193 Acts subjecting person to jurisdiction of courts of state.–(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.(b) Committing a tortious act within this state.(c) Owning, using, possessing, or holding a mortgage or other lien on any real property within this state.(d) Contracting to insure any person, property, or risk located within this state at the time of contracting.(e) With respect to a proceeding for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintaining a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph does not change the residency requirement for filing an action for dissolution of marriage.(f) Causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury, either:1. The defendant was engaged in solicitation or service activities within this state; or2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use.(g) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.(h) With respect to a proceeding for paternity, engaging in the act of sexual intercourse within this state with respect to which a child may have been conceived.(2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.(3) Service of process upon any person who is subject to the jurisdiction of the courts of this state as provided in this section may be made by personally serving the process upon the defendant outside this state, as provided in s. 48.194. The service shall have the same effect as if it had been personally served within this state.(4) If a defendant in his or her pleadings demands affirmative relief on causes of action unrelated to the transaction forming the basis of the plaintiff’s claim, the defendant shall thereafter in that action be subject to the jurisdiction of the court for any cause of action, regardless of its basis, which the plaintiff may by amendment assert against the defendant.(5) Nothing contained in this section limits or affects the right to serve any process in any other manner now or hereinafter provided by law.History.–s. 1, ch. 73-179; s. 3, ch. 84-2; s. 3, ch. 88-176; s. 3, ch. 93-250; s. 281, ch. 95-147.
48.194 Personal service outside state.–(1) Except as otherwise provided herein, service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. No order of court is required. An affidavit of the officer shall be filed, stating the time, manner, and place of service. The court may consider the affidavit, or any other competent evidence, in determining whether service has been properly made. Service of process on persons outside the United States may be required to conform to the provisions of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.(2) Where in rem or quasi in rem relief is sought in a foreclosure proceeding as defined by s. 702.09, service of process on a person outside of this state where the address of the person to be served is known may be made by registered mail as follows:(a) The party’s attorney or the party, if the party is not represented by an attorney, shall place a copy of the original process and the complaint, petition, or other initial pleading or paper and, if applicable, the order to show cause issued pursuant to s. 702.10 in a sealed envelope with adequate postage addressed to the person to be served.(b) The envelope shall be placed in the mail as registered mail.(c) Service under this subsection shall be considered obtained upon the signing of the return receipt by the person allowed to be served by law.(3) If the registered mail which is sent as provided for in subsection (2) is returned with an endorsement or stamp showing “refused,” the party’s attorney or the party, if the party is not represented by an attorney, may serve original process by first-class mail. The failure to claim registered mail is not refusal of service within the meaning of this subsection. Service of process pursuant to this subsection shall be perfected as follows:(a) The party’s attorney or the party, if the party is not represented by an attorney, shall place a copy of the original process and the complaint, petition, or other initial pleading or paper and, if applicable, the order to show cause issued pursuant to s. 702.10 in a sealed envelope with adequate postage addressed to the person to be served.(b) The envelope shall be mailed by first-class mail with the return address of the party’s attorney or the party, if the party is not represented by an attorney, on the envelope.(c) Service under this subsection shall be considered obtained upon the mailing of the envelope.(4) If service of process is obtained under subsection (2), the party’s attorney or the party, if the party is not represented by an attorney, shall file an affidavit setting forth the return of service. The affidavit shall state the nature of the process; the date on which the process was mailed by registered mail; the name and address on the envelope containing the process; the fact that the process was mailed registered mail return receipt requested; who signed the return receipt, if known, and the basis for that knowledge; and the relationship between the person who signed the receipt and the person to be served, if known, and the basis for that knowledge. The return receipt from the registered mail shall be attached to the affidavit. If service of process is perfected under subsection (3), the party’s attorney or the party, if the party is not represented by an attorney, shall file an affidavit setting forth the return of service. The affidavit shall state the nature of the process; the date on which the process was mailed by registered mail; the name and address on the envelope containing the process that was mailed by registered mail; the fact that the process was mailed registered mail and was returned with the endorsement or stamp “refused”; the date, if known, the process was “refused”; the date on which the process was mailed by first-class mail; the name and address on the envelope containing the process that was mailed by first-class mail; and the fact that the process was mailed by first-class mail with a return address of the party or the party’s attorney on the envelope. The return envelope from the attempt to mail process by registered mail and the return envelope, if any, from the attempt to mail the envelope by first-class mail shall be attached to the affidavit.History.–s. 1, ch. 73-179; s. 4, ch. 93-250; s. 7, ch. 97-278.48.195 Service of foreign process.–(1) The service of process issued by a court of a state other than Florida may be made by the sheriffs of this state in the same manner as service of process issued by Florida courts. The provisions of this section shall not be interpreted to permit a sheriff to take any action against personal property, real property, or persons.(2) An officer serving such foreign process shall be deemed as acting in the performance of his or her duties for the purposes of ss. 30.01, 30.02, 843.01, and 843.02, but shall not be held liable as provided in s. 839.19 for failure to execute any process delivered to him or her for service.(3) The sheriffs shall be entitled to charge fees for the service of foreign process, and the fees shall be the same as fees for the service of comparable process for the Florida courts. When the service of foreign process requires duties to be performed in excess of those required by Florida courts, the sheriff may perform the additional duties and may collect reasonable additional compensation for the additional duties performed.History.–s. 7, ch. 79-396; s. 36, ch. 81-259; s. 11, ch. 91-45; s. 282, ch. 95-147.48.196 Service of process in connection with actions under the Florida International Arbitration Act.–(1) Any process in connection with the commencement of an action before the courts of this state under chapter 684, the Florida International Arbitration Act, shall be served:(a) In the case of a natural person, by service upon:1. That person;2. Any agent for service of process appointed in, or pursuant to, any applicable agreement or by operation of any law of this state; or3. Any person authorized by the law of the jurisdiction where process is being served to accept service for that person.(b) In the case of any person other than a natural person, by service upon:1. Any agent for service of process appointed in, or pursuant to, any applicable agreement or by operation of any law of this state;2. Any person authorized by the law of the jurisdiction where process is being served to accept service for that person; or3. Any person, whether natural or otherwise and wherever located, who by operation of law or internal action is an officer, business agent, director, general partner, or managing agent or director of the person being served; or4. Any partner, joint venturer, member or controlling shareholder, wherever located, of the person being served, if the person being served does not by law or internal action have any officer, business agent, director, general partner, or managing agent or director.(2) The process served under subsection (1) shall include a copy of the application to the court together with all attachments thereto and shall be served in the following manner:(a) In any manner agreed upon, whether service occurs within or without this state;(b) If service is within this state:1. In the manner provided in ss. 48.021 and 48.031, or2. If applicable under their terms, in the manner provided in ss. 48.161, 48.183, 48.23, or chapter 49; or(c) If service is outside this state:1. By personal service by any person authorized to serve process in the jurisdiction where service is being made or by any person appointed to do so by any competent court in that jurisdiction;2. In any other manner prescribed by the laws of the jurisdiction where service is being made for service in an action before a local court of competent jurisdiction;3. In the manner provided in any applicable treaty to which the United States is a party;4. In the manner prescribed by order of the court;5. By any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the person being served; or6. If applicable, in the manner provided in chapter 49.(3) No order of the court is required for service of process outside this state. The person serving process shall make proof of service to the court by affidavit or as prescribed by the law of the jurisdiction where process is being served or as prescribed in an order of the court. Such proof shall be made prior to expiration of the time within which the person served must respond. If service is by mail, the proof of service shall state the date and place of mailing and shall include a receipt signed by the addressee or other evidence of delivery satisfactory to the court.History.–s. 2, ch. 86-266.48.20 Service of process on Sunday.–Service or execution on Sunday of any writ, process, warrant, order, or judgment is void and the person serving or executing, or causing it to be served or executed, is liable to the party aggrieved for damages for so doing as if he or she had done it without any process, writ, warrant, order, or judgment. If affidavit is made by the person requesting service or execution that he or she has good reason to believe that any person liable to have any such writ, process, warrant, order, or judgment served on him or her intends to escape from this state under protection of Sunday, any officer furnished with an order authorizing service or execution by the judge or magistrate of any incorporated town may serve or execute such writ, process, warrant, order, or judgment on Sunday, and it is as valid as if it had been done on any other day.History.–s. 44, Nov. 23, 1828; RS 1025; GS 1413; RGS 2611; CGL 4275; s. 4, ch. 67-254; s. 12, ch. 73-334; s. 283, ch. 95-147.Note.–Former s. 47.46.48.21 Return of execution of process.–All officers to whom process is directed shall note on it, or on a return-of-service form attached thereto, the time when it comes to hand, the time when it is executed, the manner of execution, the name of the person on whom it was executed and if such person is served in a representative capacity, the position occupied by the person. A failure to state the foregoing facts invalidates the service, but the return is amendable to state the truth at any time on application to the court from which the process issued. On amendment, service is as effective as if the return had originally stated the omitted facts. A failure to state all the facts in the return shall subject the officer so failing to a fine not exceeding $10, in the court’s discretion.History.–s. 18, Nov. 23, 1828; RS 1026; GS 1414; RGS 2612; CGL 4276; s. 4, ch. 67-254; s. 4, ch. 94-170; s. 1356, ch. 95-147.Note.–Former s. 47.47.48.22 Cumulative to other laws.–All provisions of this chapter are cumulative to other provisions of law or rules of court about service of process, and all other provisions about service of process are cumulative to this chapter.History.–s. 9, ch. 11829, 1927; CGL 4265; s. 7, ch. 22858, 1945; s. 4, ch. 67-254.Note.–Former ss. 47.33, 47.44.48.23 Lis pendens.–(1)(a) No action in any of the state or federal courts in this state operates as a lis pendens on any real or personal property involved therein or to be affected thereby until a notice of the commencement of the action is recorded in the office of the clerk of the circuit court of the county where the property is, which notice contains the names of the parties, the time of institution of the action, the name of the court in which it is pending, a description of the property involved or to be affected, and a statement of the relief sought as to the property.(b) Except for the interest of persons in possession or easements of use, the filing for record of such notice of lis pendens shall constitute a bar to the enforcement against the property described in said notice of lis pendens of all interests and liens including but not limited to federal tax liens and levies, unrecorded at the time of filing for record such notice of lis pendens unless the holder of any such unrecorded interest or lien shall intervene in such proceedings within 20 days after the filing and recording of said notice of lis pendens. If the holder of any such unrecorded interest or lien does not intervene in the proceedings and if such proceedings are prosecuted to a judicial sale of the property described in said notice of lis pendens, the property shall be forever discharged from all such unrecorded interests and liens. In the event said notice of lis pendens is discharged by order of the court, the same shall not in any way affect the validity of any unrecorded interest or lien.(2) No notice of lis pendens is effectual for any purpose beyond 1 year from the commencement of the action unless the relief sought is disclosed by the initial pleading to be founded on a duly recorded instrument or on a lien claimed under part I of chapter 713 against the property involved, except when the court extends the time on reasonable notice and for good cause. The court may impose such terms for the extension of time as justice requires.(3) When the initial pleading does not show that the action is founded on a duly recorded instrument or on a lien claimed under part I of chapter 713, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.(4) This section applies to all actions now or hereafter pending in any state or federal courts in this state, but the period of time above-mentioned does not include the period of pendency of any action in an appellate court.History.–RS 1220; GS 1649; RGS 2853; ss. 1-3, ch. 12081, 1927; CGL 4550; s. 1, ch. 24336, 1947; s. 4, ch. 67-254; s. 1, ch. 67-567; s. 1, ch. 85-308; s. 19, ch. 90-109; s. 5, ch. 93-250.Note.–Former s. 47.49.48.25 Short title.–Sections 48.25-48.31 may be cited as the “Florida Certified Process Server Act.”History.–s. 2, ch. 88-135.48.27 Certified process servers.–(1) The chief judge of each judicial circuit may establish an approved list of natural persons designated as certified process servers. The chief judge may periodically add to such list the names of those natural persons who have met the requirements for certification provided for in s. 48.29. Each person whose name has been added to the approved list is subject to annual recertification and reappointment by the chief judge of a judicial circuit. The chief judge shall prescribe appropriate forms for application for inclusion on the list of certified process servers. A reasonable fee for the processing of any such application must be charged.(2) The addition of a person’s name to the list authorizes him or her to serve initial nonenforceable civil process on a person found within the circuit where the process server is certified when a civil action has been filed against such person in the circuit court or in a county court in the state. Upon filing an action in circuit or county court, a person may select from the list for the circuit where the process is to be served one or more certified process servers to serve initial nonenforceable civil process.(3) Nothing herein shall be interpreted to exclude a sheriff or deputy or other person appointed by the sheriff pursuant to s. 48.021 from serving process or to exclude a person from appointment by individual motion and order to serve process in any civil action in accordance with Rule 1.070(b) of the Florida Rules of Civil Procedure.History.–s. 3, ch. 88-135; s. 5, ch. 97-96; s. 3, ch. 98-410.48.29 Certification of process servers.–(1) The circuit court administrator and the clerk of the court in each county in the circuit shall maintain the list of process servers approved by the chief judge of the circuit. Such list may, from time to time, be amended or modified to add or delete a person’s name in accordance with the provisions of this section or s. 48.31.(2) A person seeking the addition of his or her name to the approved list in any circuit shall submit an application to the chief judge of the circuit or to the chief judge’s designee on a form prescribed by the court. A reasonable fee for processing the application may be charged.(3) A person applying to become a certified process server shall:(a) Be at least 18 years of age;(b) Have no mental or legal disability;(c) Be a permanent resident of the state;(d) Submit to a background investigation, which shall include the right to obtain and review the criminal record of the applicant;(e) Obtain and file with his or her application a certificate of good conduct, which specifies there is no pending criminal case against the applicant and that there is no record of any felony conviction, nor a record of a conviction of a misdemeanor involving moral turpitude or dishonesty, with respect to the applicant within the past 5 years;(f) If prescribed by the chief judge of the circuit, submit to an examination testing his or her knowledge of the laws and rules regarding the service of process. The content of the examination and the passing grade thereon, and the frequency and location at which such examination shall be offered shall be prescribed by the chief judge of the circuit. The examination, if any, shall be offered at least once annually;(g) Execute a bond in the amount of $5,000 with a surety company authorized to do business in this state for the benefit of any person wrongfully injured by any malfeasance, misfeasance, neglect of duty, or incompetence of the applicant, in connection with his or her duties as a process server. Such bond shall be renewable annually; and(h) Take an oath of office that he or she will honestly, diligently, and faithfully exercise the duties of a certified process server.(4) The chief judge of the circuit may, from time to time by administrative order, prescribe additional rules and requirements regarding the eligibility of a person to become a certified process server or to have his or her name maintained on the list of certified process servers.(5)(a) An applicant who completes the requirements set forth in this section and whose name the chief judge by order enters on the list of certified process servers shall be designated as a certified process server.(b) Each certified process server shall be issued an identification card bearing his or her identification number, printed name, signature and photograph, the seal of the circuit court, and an expiration date. Each identification card shall be renewable annually upon proof of good standing and current bond.(6)(a) A certified process server shall place on the face of any process served by him or her, his or her printed name, signature, and identification number, and words stating that he or she is a certified process server in the circuit wherein he or she is serving the process. In addition, the certified process server shall endorse on the original process, and on all copies served, the date and hour of service.(b) Return of service shall be made by a certified process server on a form which has been reviewed and approved by the court.(7)(a) A person may qualify as a certified process server and have his or her name entered on the list in more than one circuit.(b) A process server whose name is on a list of certified process servers in more than one circuit may serve process on a person found in any such circuits.(c) A certified process server may serve foreign process in any circuit in which his or her name has been entered on the list of certified process servers for that circuit.(8) A certified process server may charge a fee for his or her services.History.–s. 4, ch. 88-135; s. 284, ch. 95-147.48.31 Removal of certified process servers; false return of service.–(1) A certified process server may be removed from the list of certified process servers for any malfeasance, misfeasance, neglect of duty, or incompetence, as provided by court rule.(2) A certified process server must be disinterested in any process he or she serves; if the certified process server willfully and knowingly executes a false return of service, he or she is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, and shall be permanently barred from serving process in this state.
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Maryland Foreclosure Process Service Laws
By admin | April 9, 2010
Rule 2-111. Process – Requirements preliminary to summons.(a) Information report. Except as otherwise provided by administrative order of the Chief Judge of the Court of Appeals approved by the Court of Appeals, the plaintiff shall file with the complaint an information report substantially in the form available from the clerk pursuant to Rule 16-202 b. If the plaintiff fails to file a required information report with the complaint, the court may proceed without the plaintiff’s information to assign the action to any track within the court’s differentiated case management system.(b) Summons. For each summons to be issued, the plaintiff shall furnish to the clerk a copy of the complaint, a copy of each exhibit or other paper filed with the complaint, and a copy of the information report specified in section (a) of this Rule.(c) Instructions for the sheriff. A person requesting service of process by the sheriff shall furnish to the clerk all available information as to the name and location, including the county where service is to be made, of the person to be served. The information required by this section may be included in the caption of the case.(Amended June 7, 1994, effective Oct. 1, 1994; Jan. 10, 1995, effective Feb. 1, 1995; June 5, 1996, effective Jan. 1, 1997; Dec. 10, 1996, effective Jan. 1, 1997.)Rule 2-112. Process – Issuance of summons.(a) Summons. Upon the filing of the complaint, the clerk shall issue forthwith a summons for each defendant and shall deliver it, together with a copy of each paper filed and a blank copy of the information report form required to be provided by Rule 16-202 b, to the sheriff or other person designated by the plaintiff. Upon request of the plaintiff, more than one summons shall issue for a defendant.(b) Delivery to another county. When process is to be served by the sheriff of another county, the clerk may send the process to that sheriff for service. If a party requests personal delivery of the process at that party’s expense to the sheriff of another county, the clerk shall furnish the process to a person designated by the party and approved by the clerk to make delivery.(Amended June 7, 1994, effective Oct. 1, 1994; June 5, 1996, effective Jan. 1, 1997.)Rule 2-113. Process – Duration, dormancy, and renewal of summons. A summons is effective for service only if served within 60 days after the date it is issued. A summons not served within that time shall be dormant, renewable only on written request of the plaintiff.Rule 2-114. Process – Content.(a) Generally. All process shall be under the seal of the court and signed by the clerk.(b) Summons. A summons shall contain (1) the name of the court and the assigned docket reference, (2) the name and address of the party requesting the summons, (3) the name and address of the person to be served as set forth in the complaint, (4) the date of issue, (5) the time within which it must be served, (6) the time within which the defendant must file a response to the complaint by pleading or motion, (7) notification to the defendant that failure to file the response within the time allowed may result in a judgment by default or the granting of the relief sought, and (8) the time within which the return of service shall be made.Rule 2-115. Attachment before judgment.(a) Request for writ. At the time of filing a complaint commencing an action or while the action is pending, a plaintiff entitled by statute to attachment before judgment may file a request for an order directing the issuance of a writ of attachment for levy or garnishment of property or credits of the defendant. The request may be made ex parte. The plaintiff shall file with the request an affidavit verifying the facts set forth in the complaint and stating the grounds for entitlement to the writ. The request and affidavit need not be served pursuant to Rule 1-321 at the time of filing.(b) Single action. The request for the writ of attachment shall be filed in the same action as the complaint. The complaint and the request for the writ of attachment and all further proceedings shall constitute a single action and shall be docketed accordingly.(c) Proceedings on request for writ. The court shall review the complaint, any exhibits, and the supporting affidavit. The court may require the plaintiff to supplement or explain any of the matters set forth in the documents or to provide further information regarding the property to be attached. If the court determines that the plaintiff is entitled to the writ of attachment, it shall order issuance of the writ conditioned on the filing of a bond by the plaintiff for the satisfaction of all costs and damages that may be awarded the defendant or a claimant of the property by reason of the attachment. The order shall prescribe the amount and security of the bond.(d) Issuance of writ. Upon entry of the order and the filing of the bond, the clerk shall issue one or more writs of attachment and shall attach to each writ a copy of the supporting affidavit filed with the request. When the writ directs a levy on the property of the defendant, the procedure shall be in accordance with Rules 2-641 and 2-642. When the writ directs a garnishment of property or credits of the defendant, the procedure shall be in accordance with Rule 2-645, except that no judgment shall be entered against the garnishee until a judgment is entered for the plaintiff on the claim. In applying Rules 2-641, 2-642, and 2-645, the plaintiff shall be treated as a judgment creditor and the defendant shall be treated as a judgment debtor, and a statement of the amount of the plaintiff’s claim shall be treated as a statement of the amount owed under the judgment.(e) Proceedings on complaint. If the request for the writ of attachment accompanies the complaint, the clerk shall issue a summons pursuant to Rule 2-112 upon the filing of the complaint. If the whereabouts of the defendant are unknown or the summons is not served despite reasonable efforts to effect service and if the defendant does not voluntarily appear, the plaintiff may seek an order of publication pursuant to Rule 2-122 for in rem jurisdiction. The court may provide for additional notice to the defendant by any means it deems appropriate.(f) Dissolution of attachment for lack of service. An attachment made before service of original process dissolves 60 days after making the levy or serving the garnishee unless before that time the summons is served upon the defendant or first publication is made pursuant to Rule 2-122, provided that publication is subsequently completed. Upon request made within the initial 60 day period, the court for good cause may extend the attachment for not more than 60 additional days to permit service to be made or publication commenced pursuant to this section.(g) Release of property or dissolution of attachment. A defendant who has appeared may obtain release of the attached property by posting a bond in an amount equal to the value of the property, as determined by the court, or in the amount of the plaintiff’s claim, whichever is less, conditioned upon satisfaction of any judgment that may be recovered. Upon motion of a defendant who has appeared, the court may release some or all of the attached property if it finds that (1) the complaint has been dismissed or settled, (2) the plaintiff has failed to comply with the provisions of this Rule or an order of court regarding these proceedings, (3) the plaintiff fails to demonstrate the probability of success on the merits, (4) property of sufficient value to satisfy the claim and probable costs will remain subject to the attachment after the release, or (5) the attachment of the specific property will cause undue hardship to the defendant and the defendant has delivered to the sheriff or made available for levy alternative property sufficient in value to satisfy the claim and probable costs. Upon motion of a defendant or garnishee, the court may release some or all of the attached property on the ground that by law the property is automatically exempt from attachment without the necessity of election or it may dissolve the attachment on the ground that the plaintiff is not entitled to attachment before judgment. If the motion is filed before the defendant’s answer is due pursuant to Rule 2-321, its filing shall be treated as an appearance for that purpose only. A party desiring a hearing on a motion filed pursuant to this section shall so request in the motion or response and, if requested, a hearing shall be held promptly.(h) Claim of property by third person. When attached property is claimed by a person other than the defendant, the claimant may proceed pursuant to Rule 2-643 (e).(i) Retention of levied or garnished property. All property and funds coming into the possession of the sheriff by virtue of an attachment shall be retained during the pendency of the action unless otherwise directed by the court. At the request of either party, the court may direct the sale or other disposition of any perishable property upon such terms and conditions as it deems just.(j) Judgment for defendant. If judgment is entered for the defendant, the court shall dissolve the attachment. On motion, the court shall then assess and enter judgment for any damages sustained by the defendant by reason of the attachment.(k) Judgment for plaintiff. If personal jurisdiction was not obtained over the defendant, any judgment for the plaintiff shall be an in rem judgment against the attached property, and entry and satisfaction of the judgment will not bar further pursuit of the plaintiff’s claim in the same or another action for any unpaid balance. When judgment is entered for the plaintiff; any funds paid to or collected by the sheriff and the proceeds of any pre-judgment sales of attached property shall be applied toward satisfaction of the judgment and the court shall order the sale of any other attached property to the extent necessary to satisfy the judgment. If personal jurisdiction was obtained over the defendant, the plaintiff may enforce the judgment as provided in Chapter 600 to the extent it remains unsatisfied after application of the proceeds from the attachment.(Amended Apr. 7, 1986, effective July 1, 1986; July 16, 1992.)Rule 2-121. Process-Service-In personam(a) Generally. Service of process may be made within this State or, when authorized by the law of this State, outside of this State (1) by delivering to the person to be served a copy of the summons, complaint, and all other papers filed with it; (2) if the person to be served is an individual, by leaving a copy of the summons, complaint, and all other papers filed with it at the individual’s dwelling house or usual place of abode with a resident of suitable age and discretion; or (3) by mailing to the person to be served a copy of the summons, complaint, and all other papers filed with it by certified mail requesting: “Restricted Delivery–show to whom, date, address of delivery.” Service by certified mail under this Rule is complete upon delivery. Service outside of the State may also be made in the manner prescribed by the court or prescribed by the foreign jurisdiction if reasonably calculated to give actual notice.(b) Evasion of Service. When proof is made by affidavit that a defendant has acted to evade service, the court may order that service be made by mailing a copy of the summons, complaint, and all other papers filed with it to the defendant at the defendant’s last known residence and delivering a copy of each to a person of suitable age and discretion at the place of business of the defendant.(c) By Order of Court. When proof is made by affidavit that good faith efforts to serve the defendant pursuant to section (a) of this Rule have not succeeded and that service pursuant to section (b) of this Rule is inapplicable or impracticable, the court may order any other means of service that it deems appropriate in the circumstances and reasonably calculated to give actual notice.(d) Methods Not Exclusive. The methods of service provided in this Rule are in addition to and not exclusive of any other means of service that may be provided by statute or rule for obtaining jurisdiction over a defendant.(Amended eff. Oct. 5, 1999)Rule 2-122. Process-Service-In rem or quasi in rem(a) Service by Posting or Publication. In an in rem or quasi in rem action when the plaintiff has shown by affidavit that the whereabouts of the defendant are unknown and that reasonable efforts have been made in good faith to locate the defendant, the court may order service by the mailing of a notice to the defendant’s last known address and:(1) by the posting of the notice by the sheriff at the courthouse door or on a bulletin board within its immediate vicinity, or(2) by publishing the notice at least once a week in each of three successive weeks in one or more newspapers of general circulation published in the county in which the action is pending, or(3) in an action in which the rights relating to land including leasehold interests are involved, by the posting of the notice by the sheriff in a conspicuous place on the land. Additionally, the court may order any other means of notice that it deems appropriate in the circumstances.(b) Time. The mailing and the posting or publication shall be accomplished at least 30 days before the date by which a response to the complaint is to be filed.(c) Content of Notice. The notice shall be signed by the clerk and shall include the caption of the case; describe the substance of the complaint and the relief sought; inform the defendant of the latest date by which the response is to be filed; warn the defendant that failure to file the response within the time allowed may result in a judgment by default or the granting of the relief sought; and contain any other information required by the court.Rule 2-123. Process-By whom served(a) Generally. Service of process may be made by a sheriff or, except as otherwise provided in this Rule, by a competent private person, 18 years of age or older, including an attorney of record, but not by a party to the action.(b) Sheriff. All process requiring execution other than delivery, mailing, or publication shall be executed by the sheriff of the county where execution takes place, unless the court orders otherwise.(c) Elisor. When the sheriff is a party to or interested in an action so as to be disqualified from serving or executing process, the court, on application of any interested party, may appoint an elisor to serve or execute the process. The appointment shall be in writing, signed by a judge, and filed with the clerk issuing the process. The elisor has the same power as the sheriff to serve or execute the process for which the elisor was appointed and is entitled to the same fees.Rule 2-124. Process-Persons to be served(a) Individual. Service is made upon an individual by serving the individual or an agent authorized by appointment or by law to receive service of process for the individual.(b) Individual Under Disability. Service is made upon an individual under disability by serving the individual and, in addition, by serving the parent, guardian, or other person having care or custody of the person or estate of the individual under disability.(c) Corporation. Service is made upon a corporation, incorporated association, or joint stock company by serving its resident agent, president, secretary, or treasurer. If the corporation, incorporated association, or joint stock company has no resident agent or if a good faith attempt to serve the resident agent, president, secretary, or treasurer has failed, service may be made by serving the manager, any director, vice president, assistant secretary, assistant treasurer, or other person expressly or impliedly authorized to receive service of process.(d) General Partnership. Service is made upon a general partnership sued in its group name in an action pursuant to Code, Courts Article, § 6-406 by serving any general partner.(e) Limited Partnership. Service is made upon a limited partnership by serving its resident agent. If the limited partnership has no resident agent or if a good faith attempt to serve the resident agent has failed, service may be made upon any general partner or other person expressly or impliedly authorized to receive service of process.(f) Limited Liability Partnership. Service is made upon a limited liability partnership by serving its resident agent. If the limited liability partnership has no resident agent or if a good faith attempt to serve the resident agent has failed, service may be made upon any other person expressly or impliedly authorized to receive service of process.(g) Limited Liability Company. Service is made upon a limited liability company by serving its resident agent. If the limited liability company has no resident agent or if a good faith attempt to serve the resident agent has failed, service may be made upon any member or other person expressly or impliedly authorized to receive service of process.(h) Unincorporated Association. Service is made upon an unincorporated association sued in its group name pursuant to Code, Courts Article, § 6-406 by serving any officer or member of its governing board. If there are no officers or if the association has no governing board, service may be made upon any member of the association.(i) State of Maryland. Service is made upon the State of Maryland by serving the Attorney General or an individual designated by the Attorney General in a writing filed with the clerk of the court and by serving the Secretary of State. In any action attacking the validity of an order of an officer or agency of this State not made a party, the officer or agency shall also be served.(j) Officer or Agency of the State of Maryland. Service is made upon an officer or agency of the State of Maryland, including a government corporation, by serving the officer or agency.Cross Reference: The Maryland Tort Claims Act, in Code, State Government Article, § 12-108(a), provides that service of a complaint under that statute is sufficient only when made upon the Treasurer of the State.(k) United States. Service is made upon the United States by serving the United States Attorney for the District of Maryland or an individual designated by the United States Attorney in a writing filed with the clerk of the court and by serving the Attorney General of the United States at Washington, District of Columbia. In any action attacking the validity of an order of an officer or agency of the United States not made a party, the officer or agency shall also be served.(l) Officer or Agency of the United States. Service is made upon an officer or agency of the United States, including a government corporation, by serving the United States and by serving the officer or agency.(m) Substituted Service Upon State Department of Assessments and Taxation. Service may be made upon a corporation, limited partnership, limited liability partnership, limited liability company, or other entity required by statute of this State to have a resident agent by serving two copies of the summons, complaint, and all other papers filed with it, together with the requisite fee, upon the State Department of Assessments and Taxation if (i) the entity has no resident agent; (ii) the resident agent is dead or is no longer at the address for service of process maintained with the State Department of Assessments and Taxation; or (iii) two good faith attempts on separate days to serve the resident agent have failed.(n) Statutes Not Abrogated. The provisions of this Rule do not abrogate any statute permitting or requiring service on a person.Rule 2-125. Process-Service on Sundays and holidays Process may be served on a Sunday or holiday, except that a writ of distraint or for eviction or possession shall not be served on Sunday.Rule 2-126. Process-Return(a) Service by Delivery or Mail. An individual making service of process by delivery or mailing shall file proof of the service with the court promptly and in any event within the time during which the person served must respond to the process. The proof shall set out the name of the person served, the date, and the particular place and manner of service. If service is by certified mail, the proof shall include the original return receipt. If service is made by an individual other than a sheriff, the individual shall file proof under affidavit which shall also state that affiant is of the age of 18 or over.(b) Service by Publication or Posting. An individual making service of process pursuant to Rule 2-122 shall file with the court proof of compliance with the Rule together with a copy of the publication or posted notice promptly and in any event within the time during which the person notified must respond. The certificate of the publisher constitutes proof of publication.(c) Other Process. When process requires for its execution a method other than or in addition to delivery or mailing, or publication or posting pursuant to Rule 2-122, the return shall be filed in the manner prescribed by rule or law promptly after execution of the process.(d) Service Not Made. An individual unable to make service of process in accordance with these rules shall file a return as soon thereafter as practicable and in no event later than ten days following the termination of the validity of the process.(e) Return to Include Process. A return shall include a copy of the process if served and the original process if not served.(f) Place of Return. In every instance the return shall be filed with the court issuing process. In addition, when a writ of attachment, a writ of execution, or any other writ against property is executed in another county, a return shall be filed with the court of that county.(g) Effect of Failure to Make Proof of Service. Failure to make proof of service does not affect the validity of the service.Rule 2-125. Process-Service on Sundays and holidays Process may be served on a Sunday or holiday, except that a writ of distraint or for eviction or possession shall not be served on Sunday.
Rule 2-510. Subpoenas.(a) Use. A subpoena is required to compel the person to whom it is directed to attend, give testimony, and produce designated documents or other tangible things at a court proceeding, including proceedings before a master, auditor, or examiner. A subpoena is also required to compel a nonparty and may be used to compel a party over whom the court has acquired jurisdiction to attend, give testimony, and produce and permit inspection and copying of designated documents or other tangible things at a deposition. A subpoena shall not be used for any other purpose. If the court, on motion of a party alleging a violation of this section or on its own initiative, after affording the alleged violator a hearing, finds that a party or attorney used or attempted to use a subpoena for a purpose other than a purpose allowed under this section, the court may impose an appropriate sanction upon the party or attorney, including an award of a reasonable attorney’s fee and costs, the exclusion of evidence obtained by the subpoena, and reimbursement of any person inconvenienced for time and expenses incurred.(b) Issuance. On the request of a person entitled to the issuance of a subpoena, the clerk shall issue a completed subpoena, or provide a blank form of subpoena which shall be filled in and returned to the clerk to be signed and sealed before service. On the request of an attorney or other officer of the court entitled to the issuance of a subpoena, the clerk shall issue a subpoena signed and sealed but otherwise in blank, which shall be filled in before service.(c) Form. Every subpoena shall contain: (1) the caption of the action, (2) the name and address of the person to whom it is directed, (3) the name of the person at whose request it is issued, (4) the date, time, and place where attendance is required, (5) a description of any documents or other tangible things to be produced, and (6) when required by Rule 2-412 (d), a notice to designate the person to testify.(d) Service. A subpoena shall be served by delivering a copy either to the person named or to an agent authorized by appointment or by law to receive service for the person named. A subpoena may be served by a sheriff of any county or by any person who is not a party and who is not less than 18 years of age. Unless impracticable, a party shall make a good faith effort to cause a trial or hearing subpoena to be served at least five days before the trial or hearing.(e) Objection to subpoena for court proceedings. On motion of a person served with a subpoena to attend a court proceeding (including a proceeding before a master, auditor, or examiner) filed promptly and, whenever practicable, at or before the time specified in the subpoena for compliance, the court may enter an order that justice requires to protect the person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:(1) that the subpoena be quashed or modified;(2) that the subpoena be complied with only at some designated time or place other than that stated in the subpoena;(3) that documents or other tangible things designated in the subpoena be produced only upon the advancement by the party serving the subpoena of the reasonable costs of producing them; or (4) that documents or other tangible things designated in the subpoena be delivered to the court at or before the proceeding or before the time when they are to be offered in evidence, subject to further order of court to permit inspection of them.(f) Objection to subpoena for deposition. A person served with a subpoena to attend a deposition may seek a protective order pursuant to Rule 2-403. If the subpoena also commands the production of documents or other tangible things at the deposition, the person served may seek a protective order pursuant to Rule 2-403 or may file, within ten days after service of the subpoena, an objection to production of any or all of the designated materials. The objection shall be in writing and shall state the reasons for the objection. If an objection is filed, the party serving the subpoena is not entitled to production of the materials except pursuant to an order of the court from which the subpoena was issued. At any time before or within 15 days after completion of the deposition and upon notice to the deponent, the party serving the subpoena may move for an order to compel the production.(g) Protection of persons subject to subpoenas. 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 the subpoena.(h) Hospital records.(1) A hospital served with a subpoena to produce at trial records, including x-ray films, relating to the condition or treatment of a patient may comply by delivering the records to the clerk of the court that issued the subpoena at or before the time specified for production. The hospital may produce exact copies of the records designated unless the subpoena specifies that the original records be produced. The records shall be delivered in a sealed envelope labeled with the caption of the action, the date specified for production, and the name and address of the person at whose request the subpoena was issued. The records shall be accompanied by a certificate of the custodian that they are the complete records for the patient for the period designated in the subpoena and that the records are maintained in the regular course of business of the hospital. The certification shall be prima facie evidence of the authenticity of the records.(2) Upon commencement of the trial, the clerk shall release the records only to the courtroom clerk assigned to the trial. The courtroom clerk shall return the records to the clerk promptly upon completion of trial or at an earlier time if there is no longer a need for them. Upon final disposition of the action the clerk shall return the original records to the hospital but need not return copies.(3) When the actual presence of the custodian of medical records is required, the subpoena shall so state.(i) Attachment. A witness served with a subpoena under this Rule is liable to body attachment and fine for failure to obey the subpoena without sufficient excuse. The writ of attachment may be executed by the sheriff or peace officer of any county and shall be returned to the court issuing it. The witness attached shall be taken immediately before the court if then in session. If the court is not in session, the witness shall be taken before a judicial officer of the District Court for a determination of appropriate conditions of release to ensure the witness’ appearance at the next session of the court that issued the attachment.
RULES OF CIVIL PROCEDURE – DISTRICT COURTRule 3-121. Process – Service – In personam.(a) Generally. Service of process may be made within this State or, when authorized by the law of this State, outside of this State (1) by delivering to the person to be served a copy of the summons, complaint, and all other papers filed with it; (2) if the person to be served is an individual, by leaving a copy of the summons, complaint, and all other papers filed with it at the individual’s dwelling house or usual place of abode with a resident of suitable age and discretion; or (3) by mailing to the person to be served a copy of the summons, complaint, and all other papers filed with it by certified mail requesting: “Restricted Delivery – show to whom, date, address of delivery.” Service by certified mail under this Rule is complete upon delivery. Service outside of the State may also be made in the manner prescribed by the court or prescribed by the foreign jurisdiction if reasonably calculated to give actual notice.(b) Evasion of service. When proof is made by affidavit that a defendant has acted to evade service, the court may order that service be made by mailing a copy of the summons, complaint, and all other papers filed with it to the defendant at the defendant’s last known residence and delivering a copy of each to a person of suitable age and discretion at the place of business of the defendant.(c) By order of court. When proof is made by affidavit that good faith efforts to serve the defendant pursuant to section (a) of this Rule have not succeeded and that service pursuant to section (b) of this Rule is inapplicable or impracticable, the court may order any other means of service that it deems appropriate in the circumstances and reasonably calculated to give actual notice.(d) Methods not exclusive. The methods of service provided in this Rule are in addition to and not exclusive of any other means of service that may be provided by statute or rule for obtaining jurisdiction over a defendant.Rule 3-123. Process – By whom served.(a) Generally. Service of process may be made by a sheriff or, except as otherwise provided in this Rule, by a competent private person, 18 years of age or older, including an attorney of record, but not by a party to the action.(b) Sheriff. All process requiring execution other than delivery, mailing, or publication shall be executed by the sheriff of the county where execution takes place, unless the court orders otherwise.(c) Elisor. When the sheriff is a party to or interested in an action so as to be disqualified from serving or executing process, the court, on application of any interested party, may appoint an elisor to serve or execute the process. The appointment shall be in writing, signed by a judge, and filed with the clerk issuing the process. The elisor has the same power as the sheriff to serve or execute the process for which the elisor was appointed and is entitled to the same fees.Rule 3-124. Process – Persons to be served.(a) Individual. Service is made upon an individual by serving the individual or an agent authorized by appointment or by law to receive service of process for the individual.(b) Individual under disability. Service is made upon an individual under disability by serving the individual and, in addition, by serving the parent, guardian, or other person having care or custody of the person or estate of the individual under disability.(c) Corporation. Service is made upon a corporation, incorporated association, or joint stock company by serving its resident agent, president, secretary, or treasurer. If the corporation, incorporated association, or joint stock company has no resident agent or if a good faith attempt to serve the resident agent, president, secretary, or treasurer has failed, service may be made by serving the manager, any director, vice president, assistant secretary, assistant treasurer, or other person expressly or impliedly authorized to receive service of process.(d) General partnership. Service made upon a general partnership sued in its group name in an action pursuant to Code, Courts Article, § 6-406 CTS. & JUD. PROC. by serving any general partner.(e) Limited partnership. Service is made upon a limited partnership by serving its resident agent. If the limited partnership has no resident agent or if a good faith attempt to serve the resident agent has failed, service may be made upon any general partner or other person expressly or impliedly authorized to receive service of process.(f) Limited liability partnership. Service is made upon a limited liability partnership by serving its resident agent. If the limited liability partnership has no resident agent or if a good faith attempt to serve the resident agent has failed, service may be made upon any other person expressly or impliedly authorized to receive service of process.(g) Limited liability company. Service is made upon a limited liability company by serving its resident agent. If the limited liability company has no resident agent or if a good faith attempt to serve the resident agent has failed, service may be made upon any member or other person expressly or impliedly authorized to receive service of process.(h) Unincorporated association. Service is made upon an unincorporated association sued in its group name pursuant to Code, Courts Article, § 6-406 CTS. & JUD. PROC. by serving any officer or member of its governing board. If there are no officers or if the association has no governing board, service may be made upon any member of the association.(i) State of Maryland. Service is made upon the State of Maryland by serving the Attorney General or an individual designated by the Attorney General in a writing filed with the Chief Clerk of the court and by serving the Secretary of State. In any action attacking the validity of an order of an officer or agency of this State not made a party, the officer or agency shall also be served.(j) Officer or agency of the State of Maryland. Service is made upon an officer or agency of the State of Maryland, including a government corporation, by serving the officer or agency.(k) United States. Service is made upon the United States by serving the United States Attorney for the District of Maryland or an individual designated by the United States Attorney in a writing filed with the Chief Clerk of the court and by serving the Attorney General of the United States at Washington, District of Columbia. In any action attacking the validity of an order of an officer or agency of the United States not made a party, the officer or agency shall also be served.(l) Officer or agency of the United States. Service is made upon an officer or agency of the United States, including a government corporation, by serving the United States and by serving the officer or agency.(m) Substituted service upon State Department of Assessments and Taxation. Service may be made upon a corporation, limited partnership, limited liability partnership, limited liability company, or other entity required by statute of this State to have a resident agent by serving two copies of the summons, complaint, and all other papers filed with it, together with the requisite fee, upon the State Department of Assessments and Taxation if (i) the entity has no resident agent; (ii) the resident agent is dead or is no longer at the address for service of process maintained with the State Department of Assessments and Taxation; or (iii) two good faith attempts on separate days to serve the resident agent have failed.(n) Statutes not abrogated. The provisions of this Rule do not abrogate any statute permitting or requiring service on a person.Rule 3-125. Process – Service on Sundays and holidays. Process may be served on a Sunday or holiday, except that a writ of distraint or for eviction or possession shall not be served on Sunday.(Amended Dec. 10, 1996, effective Jan. 1, 1997.)Rule 3-126. Process – Return.(a) Service by delivery or mail. An individual making service of process by delivery or mailing shall file proof of the service with the court promptly and in any event within the time during which the person served must respond to the process. If service by certified mail is made by the clerk, the receipt returned through the Post Office shall be promptly filed by the clerk as proof of service. The proof shall set out the name of the person served, the date, and the particular place and manner of service. If service is made by an individual other than a sheriff or clerk, the individual shall file proof under affidavit which shall also state that affiant is of the age of 18 or over, and if service is by certified mail, the proof shall include the original return receipt.(b) Service by publication or posting. An individual making service of process pursuant to Rule 2-122 shall file with the court proof of compliance with the Rule together with a copy of the publication or posting notice promptly and in any event within the time during which the person notified must respond. The certificate of the publisher constitutes proof of publication.(c) Other process. When process requires for its execution a method other than or in addition to delivery or mailing, or publication or posting pursuant to Rule 2-122, the return shall be filed in the manner prescribed by rule or law promptly after execution of the process.(d) Service not made. An individual unable to make service of process in accordance with these rules shall file a return as soon thereafter as practicable and in no event later than ten days following the termination of the validity of the process.(e) Return to include process. A return shall include a copy of the process if served and the original process if not served.(f) Place of return. In every instance the return shall be filed with the court issuing process. In addition, when a writ of attachment, a writ of execution, or any other writ against property is executed in another county, a return shall be filed with the court of that county.(g) Effect of failure to make proof of service. Failure to make proof of service does not affect the validity of the service.Rule 3-510. Subpoenas.(a) Use. A subpoena is required to compel the person to whom it is directed to attend, give testimony, and produce designated documents or other tangible things at a court proceeding, including proceedings before an examiner. A subpoena is also required to compel a nonparty and may be used to compel a party over whom the court has acquired jurisdiction to attend, give testimony, and produce and permit inspection and copying of designated documents or other tangible things at a deposition taken pursuant to Rule 3-401 or 3-431. A subpoena shall not be used for any other purpose. If the court, on motion of a party alleging a violation of this section or on its own initiative, after affording the alleged violator a hearing, finds that a party or attorney used or attempted to use a subpoena for a purpose other than a purpose allowed under this section, the court may impose an appropriate sanction upon the party or attorney, including an award of a reasonable attorney’s fee and costs, the exclusion of evidence obtained by the subpoena, and reimbursement of any person inconvenienced for time and expenses incurred.(b) Issuance. On the request of a person entitled to the issuance of a subpoena, the clerk shall issue a completed subpoena, or provide a blank form of subpoena which shall be filled in and returned to the clerk to be signed and sealed before service. On the request of an attorney or other officer of the court entitled to the issuance of a subpoena, the clerk shall issue a subpoena signed and sealed but otherwise in blank, which shall be filled in before service.(c) Form. Every subpoena shall contain: (1) the caption of the action, (2) the name and address of the person to whom it is directed, (3) the name of the person at whose request it is issued, (4) the date, time, and place where attendance is required, (5) a description of any documents or other tangible things to be produced.(d) Service. A subpoena shall be served by delivering a copy either to the person named or to an agent authorized by appointment or by law to receive service for the person named. A subpoena may be served by a sheriff of any county or by any person who is not a party and who is not less than 18 years of age. Unless impracticable, a party shall make a good faith effort to cause a trial or hearing subpoena to be served at least five days before the trial or hearing.(e) Objection to subpoena for court proceedings. On motion of a person served with a subpoena to attend a court proceeding (including a proceeding before an examiner) filed promptly and, whenever practicable, at or before the time specified in the subpoena for compliance, the court may enter an order that justice requires to protect the person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:(1) that the subpoena be quashed or modified;(2) that the subpoena be complied with only at some designated time or place other than that stated in the subpoena;(3) that documents or other tangible things designated in the subpoena be produced only upon the advancement by the party serving the subpoena of the reasonable costs of producing them; or (4) that documents or other tangible things designated in the subpoena be delivered to the court at or before the proceeding or before the time when they are to be offered in evidence, subject to further order of court to permit inspection of them.(f) Objection to subpoena for deposition. A person served with a subpoena to attend a deposition may seek a protective order pursuant to Rule 2-403. If the subpoena also commands the production of documents or other tangible things at the deposition, the person served may seek a protective order pursuant to Rule 2-403 or may file, within ten days after service of the subpoena, an objection to production of any or all of the designated materials. The objection shall be in writing and shall state the reasons for the objection. If an objection is filed, the party serving the subpoena is not entitled to production of the materials except pursuant to an order of the court from which the subpoena was issued. At any time before or within 15 days after completion of the deposition and upon notice to the deponent, the party serving the subpoena may move for an order to compel the production.(g) Protection of persons subject to subpoenas. 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 the subpoena.(h) Hospital records.(1) A hospital served with a subpoena to produce at trial records, including x-ray films, relating to the condition or treatment of a patient may comply by delivering the records to the clerk of the court that issued the subpoena at or before the time specified for production. The hospital may produce exact copies of the records designated unless the subpoena specifies that the original records be produced. The records shall be delivered in a sealed envelope labeled with the caption of the action, the date specified for production, and the name and address of the person at whose request the subpoena was issued. The records shall be accompanied by a certificate of the custodian that they are the complete records for the patient for the period designated in the subpoena and that the records are maintained in the regular course of business of the hospital. The certification shall be prima facie evidence of the authenticity of the records.(2) Upon commencement of the trial, the clerk shall release the records only to the courtroom clerk assigned to the trial. The courtroom clerk shall return the records to the clerk promptly upon completion of trial or at an earlier time if there is no longer a need for them. Upon final disposition of the action the clerk shall return the original records to the hospital but need not return copies.(3) When the actual presence of the custodian of medical records is required, the subpoena shall so state.(i) Attachment. A witness served with a subpoena under this Rule is liable to body attachment and fine for failure to obey the subpoena without sufficient excuse. The writ of attachment may be executed by the sheriff or peace officer of any county and shall be returned to the court issuing it. The witness attached shall be taken immediately before the court if then in session. If the court is not in session, the witness shall be taken before a judicial officer of the District Court for a determination of appropriate conditions of release to ensure the witness’ appearance at the next session of the court that issued the attachment.MARYLAND CODE§ 6-311 Cts. & Jud. Proc.(a) “Person” defined. In this section, “person” has the meaning stated in Rule 1-202 of the Maryland Rules.(b) Applicability.(1) This section applies to an action against a person who had applicable insurance coverage under an insurance policy or self-insurance plan at the time the alleged liability that is the subject of the action was incurred.(2) Subject to paragraph (1) of this subsection, this section applies to a person who is a defendant subject to a complaint, counterclaim, cross-claim, or third-party complaint.(c) Information provided by insurer or person with self-insurance plan; no civil or criminal liability.(1) Subject to subsections (d) and (e) of this section, on written request of a party to the action, an insurer or a person that has a self-insurance plan shall provide to the party the defendant’s last known home address if known.(2) An insurer or a person that has a self-insurance plan, and their employees and agents, may not be civilly or criminally liable for the disclosure of information required under this subsection.(d) Plaintiff certification – Contents. – Subsection (c) (1) of this section applies only if the plaintiff files a certification that:(1) States that the defendant had applicable insurance coverage at the time the alleged liability was incurred;(2) Sets forth in detail the reasonable efforts made, in good faith, by the plaintiff to locate the defendant; and(3) States that the defendant is evading service of process or the whereabouts of the defendant are unknown to the plaintiff.(e) Same – Service. A plaintiff shall file a certification described under subsection (d) of this section with the clerk of the court in which the case is filed and serve the certification on the insurer or the person that has the self-insurance plan, as provided in the Maryland Rules.(f) Defendant’s consent. – A defendant who is subject to the provisions of this section is deemed to have consented to the disclosure of the information described in this section.§ 6-312 Cts. & Jud. Proc.(a) “Person” defined. In this section, “person” has the meaning stated in Rule 1-202 of the Maryland Rules.(b) General applicability. This section applies to a person who is a defendant subject to a complaint, counterclaim, cross-claim, or third-party complaint.(c) Service authorized; effectiveness; not exclusive method.(1) Notwithstanding any other provision of law, a party may effect service by delivering a copy of the summons and the complaint to a defendant personally or by leaving copies of the summons and complaint at the defendant’s dwelling house or usual place of abode with a person of suitable age and discretion residing at the dwelling house or place of abode or by delivering a copy of the summons and the complaint to an agent authorized by appointment or law to receive service of process.(2) Any service under this subsection is as effective as actual personal service.(3) The method of service provided in this subsection is in addition to and not exclusive of any other means of service that may be provided by statute or rule for obtaining jurisdiction of a defendant.(d) Insurer defenses not affected. This section does not affect any defense, including noncooperation, available to an insurer or a person who has a self-insurance plan under the terms of the applicable insurance or self-insurance plan.(e) Defendant’s consent. A defendant who is subject to the provisions of this section is deemed to have consented to service of process as described in this section.
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Texas Foreclosure Process Service Laws
By admin | April 9, 2010
* Â RULE 6. SUITS COMMENCED ON SUNDAY.
No civil suit shall be commenced nor process issued or served on Sunday, except in cases of injunction, attachment, garnishment, sequestration, or distress proceedings; provided that citation by publication on Sunday shall be valid.
* RULE 103. TEXAS RULES OF CIVIL PROCEDURE. WHO MAY SERVE
Citation and other notices may be served anywhere by (1) any sheriff or constable or other person authorized by law or, (2) by any person authorized by law or the written order of the court who is not less than eighteen years of age. No person who is a party to or interested in the outcome of the suit shall serve any process. Service by registered or certified mail and citation by publication shall, if requested be made by the clerk of the court in which the case is pending. The order authorizing a person to serve process may be made without written motion and no fee shall be imposed for issuance of such order.
* Rule 106, T.R.C.P. METHOD OF SERVICE
(a) Unless the citation or an order of the court otherwise directs, the citation shall be served by any person authorized by Rule 103 by:
(1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto, or
(2) mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto.
(b) Upon motion supported by affidavit stating the location of the defendants usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service
(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.
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Wisconsin Foreclosure Process Service Laws
By admin | April 9, 2010
Summons, by whom served.
801.10801.10 Summons, by whom served.801.10(1)(1) Who may serve. An authenticated copy of the summons may be served by any adult resident of the state where service is made who is not a party to the action. Service shall be made with reasonable diligence.
801.10(2)(2) Endorsement. At the time of service, the person who serves a copy of the summons shall sign the summons and shall indicate thereon the time and date, place and manner of service and upon whom service was made. If the server is a sheriff or deputy sheriff, the server’s official title shall be stated. Failure to make the endorsement shall not invalidate a service but the server shall not collect fees for the service.
801.10(3)(3) Proof of service. The person making service shall make and deliver proof of service to the person on whose behalf service was made who shall promptly file such proof of service. Failure to make, deliver, or file proof of service shall not affect the validity of the service.
801.10(4)(4) Proof if service challenged. If the defendant appears in the action and challenges the service of summons upon the defendant, proof of service shall be as follows:
801.10(4)(a)(a) Personal or substituted personal service shall be proved by the affidavit of the server indicating the time and date, place and manner of service, that the server is an adult resident of the state of service not a party to the action, that the server knew the person served to be the defendant named in the summons and that the server delivered to and left with the defendant an authenticated copy of the summons. If the defendant is not personally served, the server shall state in the affidavit when, where and with whom the copy was left, and shall state such facts as show reasonable diligence in attempting to effect personal service on the defendant. If the copy of the summons is served by a sheriff or deputy sheriff of the county in this state where the defendant was found, proof may be by the sheriff’s or deputy’s certificate of service indicating time and date, place, manner of service and, if the defendant is not personally served, the information required in the preceding sentence. The affidavit or certificate constituting proof of service under this paragraph may be made on an authenticated copy of the summons or as a separate document.
801.10(4)(b)(b) Service by publication shall be proved by the affidavit of the publisher or printer, or the foreman or principal clerk, stating that the summons was published and specifying the date of each insertion, and by an affidavit of mailing of an authenticated copy of the summons, with the complaint or notice of the object of the action, as the case may require, made by the person who mailed the same.
801.10(4)(c)(c) The written admission of the defendant, whose signature or the subscription of whose name to such admission shall be presumptive evidence of genuineness.
801.10 – ANNOT.History: Sup. Ct. Order, 67 Wis. 2d 585, 600 (1975); 1975 c. 218; Sup. Ct. Order, 92 Wis. 2d xiii (1979).
801.10 – ANNOT.Judicial Council Committee’s Note, 1979: Sub. (2) is amended to clarify that the individual who serves the summons on behalf of the plaintiff under the procedures in the Wisconsin Rules of Civil Procedure must indicate on the copy of the summons served both the time and date of service. There is presently a lack of uniformity of interpretation in Wisconsin of the term “time” in 801.10 (2). Some jurisdictions interpret it to include time and date of service while other jurisdictions interpret it as only the date of service. Clarifying that both the time and date of service must be indicated in the serving of the summons will insure that this potentially valuable information is noted on the served copy of every summons in Wisconsin.
801.10 – ANNOT.Sub. (4) (a) is amended to also apply the requirement for indicating time and date of service to the affidavits and certificates of service used when proof of service is challenged. [Re Order effective Jan. 1, 1980]
801.10 – ANNOT.A party is required to show strict compliance with the requirements of this section when service is challenged. Dietrich v. Elliot, 190 Wis. 2d 816, 528 N.W.2d 17 (Ct. App. 1995).
801.10 – ANNOT.Service by a nonresident constitutes a fundamental defect compelling dismissal for lack of jurisdiction. Bendimez v. Neidermire, 222 Wis. 2d 356, 588 N.W.2d 55 (Ct. App. 1998).
801.10 – ANNOT.Sub. (4) does not require the affiant to have first hand knowledge of how the documents were authenticated, nor does it require that the affiant’s statements must be unqualified; it requires that the affiant affirm that an authenticated copy of the summons was served. State v. Boyd, 2000 WI App 208, 238 Wis. 2d 693, 618 N.W.2d 251.
806.02(3)(3) If a defendant fails to appear in an action within the time fixed in s. 801.09 the court shall, before entering a judgment against such defendant, require proof of service of the summons in the manner required by s. 801.10 and, in addition, shall require further proof as follows:
879.07(2)(2) Personal service. Proof of personal service shall be made under s. 801.10 or by the written admission of service by the person served if competent and an adult, and the subscription of the person’s name to the admission is presumptive evidence of its genuineness.
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South Carolina Foreclosure Process Service Laws
By admin | April 9, 2010
RULE 4. Process(a) Summons: Issuance. The summons shall be issued by plaintiff or plaintiff’s attorney. Copies of the original summons shall be served upon each defendant.(b) Same: Form. The summons shall be signed by the plaintiff or his attorney, contain the name of the State and county, the name of the court, the file number of the action, 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 him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint.(c) By whom served. Service of summons may be made by the sheriff, his deputy, or by any other person not less than eighteen (18) years of age, not an attorney in or a party to the action. Service of all other process shall be made by the sheriff or his deputy or any other duly constituted law enforcement officer or by any person designated by the court who is not less than eighteen (18) years of age and not an attorney in or a party to the action, except that a subpoena may be served as provided in Rule 45.(Amended effective May 1, 1986)(d) Summons: Personal service. The summons and complaint must be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Voluntary appearance by defendant is equivalent to personal service; and written notice of appearance by a party or his attorney shall be effective upon mailing, or may be served as provided in this rule. Service shall be made as follows(1) Individuals. Upon an individual other than a minor under the age of 14 years or an incompetent person, by delivering a copy of the summons and complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy to an agent authorized by appointment or by law to receive service of process.(2) Minors, Incompetents and Persons Confined. Upon a minor under the age of 14 years, a person judicially declared incapable of conducting his own affairs, or an incompetent person by delivering a copy of the summons and complaint to such minor, or incompetent personally and also a copy to (a) the guardian or committee of such person, or if there be none such within the State upon (b) a parent or other person having the care and control of such person, or (c) any competent person with whom he resides or (d) in whose service he is employed. If the individual upon whom service is made is a minor between the ages of 14 and 18, who lives with a parent or guardian, a copy of the summons and complaint shall likewise be served upon said parent or guardian, if said parent or guardian resides within the State. Service on imprisoned persons or persons confined in a state hospital or similar institution, in or out of this State, shall be made by delivering a copy of the summons and complaint to the confined person personally; and service shall be made by the sheriff of the county in which the person is imprisoned or confined. In cases of persons imprisoned, and patients in a state hospital or similar institution, personal service of process may be made by the superintendent of the institution or by the director of the prison system or by assistants duly designated by the superintendent or the director in writing for the purpose of making service of process, instead of the sheriff. The superintendent or the director or their designated assistants shall not be entitled to any costs therefore. Service on confined or imprisoned persons shall also conform to the provisions of § 15-9-510, S.C. Code, 1976.(3) Corporations and Partnerships. Upon a corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and 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 statute to receive service and the statute so requires, by also mailing a copy to the defendant.(4) State of South Carolina.(A) When State a Party. Upon the State of South Carolina by delivering a copy of the summons and complaint to the Attorney General, or when another official is designated to be served by the statute permitting such action by delivering a copy of the summons and complaint to that official and sending a copy of the summons and complaint by registered or certified mail to the Attorney General at Columbia.(B) When Unconstitutionality of Statute is Asserted. In any action attacking the Constitutionality of a State statute when the State, officer or agency is not made a party, a copy of the summons and complaint shall be sent by registered or certified mail to the Attorney General.(5) State officer or Agency. Upon an officer or agency of State by delivering a copy of the summons and complaint to such officer or agency and by sending a copy of the summons and complaint by registered or certified mail to the Attorney General at Columbia. If the agency is a corporation the copy shall be delivered as provided in paragraph (3) of this subdivision of this rule.(6) Governmental Subdivision. Upon a municipal corporation, county or other governmental or political subdivision subject to suit, by delivering a copy of the summons and complaint to the chief executive officer or clerk thereof, or by serving the summons and complaint in the manner prescribed by statute for the service of summons and complaint or any like process upon any such defendant.(7) Statutory Service. Service upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule is also sufficient if the summons and complaint are served in the manner prescribed by statute.(8) Service by Certified Mail. Service of a summons and complaint upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule may be made by the plaintiff or by any person authorized to serve process pursuant to Rule 4 (c), including a sheriff or his deputy, by registered or certified mail, return receipt requested and delivery restricted to the addressee. Service is effective upon the date of delivery as shown on the return receipt. Service pursuant to this paragraph shall not be the basis for the entry of a default or a judgment by default unless the record contains a return receipt showing the acceptance by the defendant. Any such default or judgment by default shall be set aside pursuant to Rule 55 (c) or Rule 60 (b) if the defendant demonstrates to the court that the return receipt was signed by an unauthorized person. If delivery of the process is refused or is returned undelivered, service shall be made as otherwise provided by these rules.(e) Same: Other Service. Whenever a statute or an order of court provides for service of a summons and complaint or of a notice, or an order upon a party not an inhabitant of or found within the State, service shall be made under the circumstances and in the manner prescribed by the statute, rule, or order.(f) Territorial Limits of Effective Service. All process other than a subpoena may be served anywhere within the territorial limits of the State, and when a statute so provides, beyond the territorial limits of the State. A subpoena may be served within the territorial limits provided in Rule 45.(g) Proof and Return. The person serving the process shall make proof of service thereof promptly and deliver it to the officer or person who issued same. If served by the sheriff or his deputy, he shall make proof of service by his certificate. If served by any other person, he shall make affidavit thereof. If served by publication, the printer or publisher shall make an affidavit thereof, and an affidavit of mailing shall be made by the party or his attorney if mailing of process is permitted or required by law. Failure to make proof of service does not affect the validity of the service. The proof of service shall state the date, time and place of such service and, if known, the name and address of the person actually served at the address of such person, and if not known, then the date, time and place of service and a description of the person actually served. If service was by mail, the person serving process shall show in his proof of service the date and place of mailing, and attach a copy of the return receipt or returned envelope when received by him showing whether the mailing was accepted, refused or otherwise returned. If the mailing was refused, the return shall also make proof of any further service on the defendant pursuant to paragraph (8) of subdivision (d) of this rule. The return along with the receipt or envelope and any other proof shall be promptly filed by the clerk with the pleadings and become a part of the record.(h) Proof of service without the State.When the service is made out of the State the proof of such service may be made, if within the United States, by affidavit before:(1) Any person in this State authorized to make an affidavit;(2) A commissioner of deeds for this State;(3) A notary public who shall affix thereto his official seal, or(4) A clerk of court of record who shall certify the same by his official seal; and,(5) If made without the limits of the United States, before a consul, vice-consul or consular agent of the United States who shall use in his certificate his official seal.(i) Amendment. At any time in its discretion and upon terms as it deems just, the court may, by written order, 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.(j) Acceptance of Service. No other proof of service shall be required when acceptance of service is acknowledged in writing and signed by the person served or his attorney, and delivered to the person making service. The acknowledgement shall state the place and date service is accepted.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 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 subdivision (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 commanding attendance at a trial or hearing shall issue from the court for the county in which the hearing or trial is to be held. A subpoena for attendance at a deposition shall issue from the court for the county designated by the notice of deposition as the county in which the deposition is to be taken. If separate from a subpoena commanding the attendance of a person, a subpoena for production or inspection shall issue from the court for the county in which production or inspection is to be made. Provided, however, that a subpoena to a person who is not a party or an officer, director or managing agent of a party, commanding attendance at a deposition or production or inspection shall issue from the court for the county in which the non-party resides or is employed or regularly transacts business in person.(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 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.(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 of $25.00 and the mileage allowed by law for official travel of State officers and employees. When the subpoena is issued on behalf of the State of South Carolina or an officer or agency thereof, fees and mileage need not be tendered. Unless otherwise ordered by the court, prior notice in writing 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) at least 10 days before the time specified for compliance.(2) Subject to the provisions of clause (ii) of subparagraph (c)(3)(A) of this rule, a subpoena may be served at any place within the State. Provided, however, that a subpoena to a person who is not a party or an officer, director or managing agent of a party, commanding attendance at a deposition or production or inspection shall issue from the court for the county in which the non-party resides or is employed or regularly transacts business in person and be served in that county.(3) Proof of service when necessary shall be made by filing with the clerk of the court by 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 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. A party or an attorney responsible for the issuance and service of a subpoena for production of books, papers and documents without a deposition shall provide to another party copies of documents so produced upon written request. The party requesting copies shall pay the reasonable costs of reproduction.(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 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 in the court that issued the subpoena 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, or regarding a subpoena commanding appearance at a deposition, or production or inspection directed to a non-party, the court in the county where the nonparty resides, is employed or regularly transacts business in person, shall quash or modify the subpoena if it:(i) fails to allow reasonable time for compliance; or(ii) requires a person who is not a party nor an officer, director or managing agent of a party, nor a general partner of a partnership that is a party, to travel more than 50 miles from the county where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of clause (c)(3)(B)(iii) of this rule, 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 otherwise protected matter and no exception or waiver applies; or(iv) subjects a person to undue burden.(A) 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 nor an officer, director or managing agent of a party, nor a general partner of a partnership that is a party, to incur substantial expense to travel from the county where that person resides, is employed or regularly transacts business in person 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 a deposition, permit an inspection, or produce at a place not within the limits provided by clause (ii) of subparagraph (c)(3)(A).
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