North Carolina Foreclosure Process Service Laws
By admin | April 9, 2010
Rule 1. Scope of rules.These rules shall govern the procedure in the superior and district courts of the State of North Carolina in all actions and proceedings of a civil nature except when a differing procedure is prescribed by statute. They shall also govern the procedure in tort actions brought before the Industrial Commission except when a differing procedure is prescribed by statute.
Rule 2. One form of action.There shall be in this State but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action.
Article 2. Commencement of Action; Service of Process, Pleadings, Motions,and Orders.
Rule 3. Commencement of action.(a)A civil action is commenced by filing a complaint with the court. The clerk shall enter the date of filing on the original complaint, and such entry shall be prima facieevidence of the date of filing.A civil action may also be commenced by the issuance of a summons when(1) A person makes application to the court stating the nature and purpose of his action and requesting permission to file his complaint within 20 days and(2) The court makes an order stating the nature and purpose of the action and granting the requested permission.The summons and the court’s order shall be served in accordance with the provisions of Rule 4. When the complaint is filed it shall be served in accordance with the provisions of Rule 4 or by registered mail if the plaintiff so elects. If the complaint is not filed within the period specified in the clerk’s order,the action shall abate. The clerk shall maintain as prescribed by the Administrative Office of the Courts a separateindex of all medical malpractice actions, as defined in G.S. 90-21.11. Upon the commencement of a medical malpractice action, the clerk shall provide a current copy of the index to the senior regular resident judge of the district in which the action is pending.
Rule 4. Process.
(a)Summons – Issuance; who may serve. – Upon the filing of the complaint, summons shall be issued forthwith, and in any event within five days. The complaint and summons shall bedelivered to some proper person for service. In this State, such proper person shall be the sheriff of the county where service is to be made or some other person duly authorized by law to serve summons. Outside this State, such proper person shall be anyone who is not a party and is not less than 21 years of age or anyone duly authorized to serve summons by the law of the place where service is to be made. Upon request of the plaintiff separate or additional summons shall be issued against any defendants. A summons is issued when, after being filled out and dated, it is signed by the officer having authority to do so.The date the summons bears shall be prima facie evidence of the date of issue.(b) Summons – Contents. – The summons shall run in the name of the State and be dated and signed by the clerk, assistant clerk, or deputy clerk of the court in the county in which the action is commenced. It shall contain the title of the cause and the name of the court and county wherein the action has been commenced. It shall be directed to the defendant or defendants and shall notify each defendant to appear and answer within 30days after its service upon him and further that if he fails so to appear, the plaintiff will apply to the court for the relief demanded in the complaint. It shall set forth the name and address of plaintiff’s attorney, or if there be none, the name and address of plaintiff. If a request for admission is served with the summons, the summons shall so state.(c) Summons – Return. – Personal service or substituted personal service of summons must be made within 30 days after the date of the issuance ofsummons, except that in tax and assessment foreclosures the time allowed for service is 60 days. When a summons has been served upon every party named in the summons, it shall be returned immediately to the clerk who issued it, with notation thereon of its service. Failure to make service within the time allowed or failure to return a summons to the clerk after it has been served on every party named in the summons shall not invalidate the summons. If the summons is not served within the time allowed upon every party named in the summons, it shall be returned immediately upon the expiration of such time by the officer to the clerk of the court who issued it with notation thereon of its nonservice and the reasons therefor as to every such party not served, but failure to comply with this requirement shall not invalidate thesummons.(d) Summons – Extension; endorsement, alias and pluries. – When any defendant in a civil action is not served within the time allowed for service, the action may be continued inexistence as to such defendant by either of the following methods of extension:(1) The plaintiff may secure an endorsement upon the original summons for an extension of time within which to complete service of process. Return of the summons so endorsed shall be in the same manner as the original process. Such endorsement may be secured within 90 days after the issuance of summons or the date of the last prior endorsement, or(2) The plaintiff may sue out an alias or pluries summons returnable in the same manner as the original process. Such alias or pluries summons may be sued out at any time within 90 days after the date of issue of the last preceding summons in the chain of summonses or within 90 days of the last prior endorsement.Provided, in tax and assessment foreclosures,the first endorsement may be made at any time within two years after the issuance of the original summons, and subsequent endorsements may thereafter be made as in other actions; or an alias or pluries summons may be sued out at any time within two years after the issuance of the original summons, and after the issuance of such alias or pluries summons, the chain of summonses may be kept up as in any other action. Provided, for service upon a defendant in a place not within the United States, the first endorsement may be made at any time within two years after the issuance of the original summons, and subsequent endorsements may thereafter be made at least once every two years; or an alias or pluries summons may be sued out at any time within two years after the issuance of the original summons, and after the issuance of such alias or pluries summons, the chain of summonses may be kept up as in any other action if sued out within two years of the last preceding summons in the chain of summonses or within two years of the last prior endorsement. Provided, further, the methods of extension may be used interchangeably in any case and regardless of the form of thepreceding extension.(e) Summons – Discontinuance. – When there is neither endorsement by the clerk nor issuance of alias or pluries summons within the time specified in Rule 4(d), the action isdiscontinued as to any defendant not theretofore served with summons within the time allowed. Thereafter, alias or pluries summons may issue, or an extension be endorsed by the clerk,but, as to such defendant, the action shall be deemed to have commenced on the date of such issuance or endorsement.(f) Summons – Date of multiple summonses. – If the plaintiff shall cause separate or additional summonses to be issued as provided in Rule 4(a), the date of issuance of such separate or additional summonses shall be considered the same as that of the original summons for purposes of endorsement or alias summonsunder Rule 4(d).(g) Summons – Docketing by clerk. – The clerk shall keep a record in which he shall note the day and hour of issuance of every summons, whether original, alias, pluries, or endorsement thereon. When the summons is returned, the clerk shall note on the record the date of the return and the fact as to service or non-service.(h) Summons – When proper officer not available. – If at any time there is not in a county a proper officer, capable of executing process, to whom summons or other process can be delivered for service, or if a proper officer refuses or neglects to execute such process, or if such officer is a party to or otherwise interested in the action or proceeding, the clerk of the issuing court, upon the facts being verified before him by written affidavit of the plaintiff or his agent or attorney, shall appoint some suitable person who, after he accepts such process for service, shall execute such process in the same manner, with like effect, and subject to the same liabilities, as if such person were a proper officer regularly serving process in that county.(h1)Summons – When process returned unexecuted. – If a proper officer returns a summons or other process unexecuted, the plaintiff or his agent or attorney may cause service to be made by anyone who is not less than 21 years of age, who is not a party to the action, and who is not related by blood or marriage to a party to the action or to a person upon whom service is to be made. This subsection shall not apply to executions pursuant to Article 28 of Chapter 1 or summary ejectment pursuant to Article 3 of Chapter 42 of the General Statutes.(i) Summons – Amendment. – At any time, before or after judgment, in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to substantial rights of the party against whom the process issued.(j) Process – Manner of service to exercise personal jurisdiction. – In any action commenced in a court of this State having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in G.S. 1-75.4, the manner of service of process within or without the State shall be as follows:(1) Natural Person. – Except as provided in subsection(2) below, upon a natural person:a. By delivering a copy of the summons and of the complaint to him or by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein; orb. By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service of process or by serving process upon such agent or the party in a manner specified by any statute.c. By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee.(2) Natural Person under Disability. – Upon a natural person under disability by serving process in any manner prescribed in this section (j) for service upon a natural person and, in addition, where required by paragraph a or b below, upon a person therein designated.a. Where the person under disability is a minor, process shall be served separately in any manner prescribed for service upon a natural person upon a parent or guardian having custody of the child, or if there be none, upon any other person having the care and control of the child. If there is no parent, guardian, or other person having care and control of the child when service is made upon the child, then service of process must also be made upon a guardian ad litem who has beenappointed pursuant to Rule 17.b. If the plaintiff actually knows that a person under disability is under guardianship of any kind, process shall be served separately upon his guardian in any manner applicable and appropriate under this section (j). If the plaintiff does not actually know that a guardian has been appointed when service is made upon a person known to him to be incompetent to have charge of his affairs, then service of process must be made upon a guardian ad litem who has been appointed pursuant to Rule 17.(3) The State. – Upon the State by personally delivering a copy of the summons and of the complaint to the Attorney General or to a deputy or assistant attorney general or by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the Attorney General or to a deputy or assistant attorney general.(4) An Agency of the State. -a. Upon an agency of the State by personally delivering a copy of the summons and of the complaint to the process agent appointed by the agency in the manner hereinafter provided or by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to said process agent.b. Every agency of the State shall appoint a process agent by filing with the Attorney General the name and address of an agent upon whom process may be served.c. If any agency of the State fails to comply with paragraph b above, then service upon such agency may be made by personally delivering a copy of the summons and of the complaint to the Attorney General or to a deputy or assistant attorney general or by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the Attorney General, or to a deputy or assistant attorney general.d. For purposes of this rule, the term “agency of the State” includes every agency, institution, board, commission, bureau, department, division, council, member of Council of State, or officer of the State government of the State of North Carolina, but does not include counties, cities, towns, villages, other municipal corporations or political subdivisions of the State, county or city boards of education, other local public districts, units, or bodies of any kind, or private corporations created by act of the General Assembly.(5) Counties, Cities, Towns, Villages and Other Local Public Bodies. -a. Upon a city, town, or village by personally delivering a copy of the summons and of the complaint to its mayor, city manager or clerk or by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to its mayor, city manager or clerk.b. Upon a county by personally delivering a copy of the summons and of the complaint to its county manager or to the chairman, clerk or any member of the board of commissioners for such county or by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to its county manager or to the chairman, clerk, or any member of this board of commissioners for such county.c. Upon any other political subdivision of the State, any county or city board of education, or other local public district, unit, or body of any kind by personally delivering a copy of the summons and of the complaint to an officer or director thereof, or by personally delivering a copy of the summons and of the complaint to an agent or attorney- in-fact authorized by appointment or by statute to be served or to accept service in its behalf, or by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the officer, director, agent, or attorney-in-fact as specified in and.d. In any case where none of the officials, officers or directors specified in paragraphs a, b and c can, after due diligence, be found in the State, and that fact appears by affidavit to the satisfaction of the court, or a judge thereof, such court or judge may grant an order that service upon the party sought to be served may be made by personally delivering a copy of the summons and of the complaint to the Attorney General or any deputy or assistant attorney general of the State of North Carolina, or by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the Attorney General or any deputy or assistant attorney general of the State of North Carolina.(6) Domestic or Foreign Corporation. – Upon a domestic or foreign corporation:a. By delivering a copy of the summons and of the complaint to an officer, director, or managing agent of the corporation or by leaving copies thereof in the office of such officer, director, or managing agent with the person who is apparently in charge of the office; orb. By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service or [of] process or by serving process upon such agent or the party in a manner specified by any statute.c. By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the officer, director or agent to be served as specified in paragraphs a and b.(7) Partnerships. – Upon a general or limited partnership:a. By delivering a copy of the summons and of the complaint to any general partner, or to any attorney-in-fact or agent authorized by appointment or by law to be served or to accept service of process in its behalf, or by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to any general partner, or to any attorney-in-fact or agent authorized by appointment or by law to be served or to accept service of process in its behalf, or by leaving copies thereof in the office of such general partner, attorney-in-fact or agent with the person who is apparently in charge of the office.b. If relief is sought against a partner specifically, a copy of the summons and of the complaint must be served on such partner as provided in this section.(8) Other Unincorporated Associations and Their Officers. – Upon any unincorporated association, organization, or society other than a partnership:a. By delivering a copy of the summons and of the complaint to an officer, director, managing agent or member of the governing body of the unincorporated association, organization or society, or by leaving copies thereof in the office of such officer, director, managing agent or member of the governing body with the person who is apparently in charge of the office; orb. By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service of process or by serving process upon such agent or the party in a manner specified by any statute.c. By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the officer, director, agent or member of thegoverning body to be served as specified inparagraphs a and b.(9) Service upon a foreign state or a politicalsubdivision, agency, or instrumentality thereofshall be effected pursuant to 28 U.S.C. § 1608.Service by publication on party that cannot otherwise be served. – A party that cannot with due diligence be served by personal delivery or registered or certified mail may be served by publication. Except in actions involving jurisdiction in rem or quasi in rem, service of process by publication shall consist of publishing a notice of service of process by publication once a week for three successive weeks in a newspaper that is qualified for legal advertising and circulated in the area where the party to be served is believed by the serving party to be located, or if there is no reliable information concerning the location of the party then in a newspaper circulated in the county where the action is pending. If the party’s post-office address is known or can with reasonable diligence be ascertained, there shall be mailed to the party at or immediately prior to the first publication a copy of the notice of service of process by publication. The mailing may be omitted if the post-office address cannot be ascertained with reasonable diligence. Upon completion of such service there shall be filed with the court an affidavit showing the publication and mailing, the circumstances warranting the use of service by publication, and information, if any, regarding the location of the party served.The notice of service of process by publication shall designate the court in which the action has been commenced and the title of the action, which title may be indicatedsufficiently by the name of the first plaintiff and the first defendant; be directed to the defendant sought to be served; state either that a pleading seeking relief against the person to be served has been filed or has been required to be filed therein not later than a date specified in the notice; state the nature of the relief being sought; require the defendant being so served to make defense to such pleading within 40 days after a date stated in the notice, exclusive of such date, which date so stated shall be the date of the first publication of notice, or the date when the complaint is required to be filed, whichever is later, and notify the defendant that upon his failure to do so the partyseeking service of process by publication will apply to the court for the relief sought; (vi) in cases of attachment, state the information required by G.S. 1-440.14; (vii) be subscribed by the party seeking service or his attorney and give the post office address of such party or his attorney; and be substantially in the following form:
NOTICE OF SERVICE OF PROCESS BY PUBLICATIONSTATE OF NORTH CAROLINA _____________ COUNTY
In the _____________ Court
[Title of action or special proceeding] [To Person to beserved]:Take notice that a pleading seeking relief against you (hasbeen filed) (is required to be filed not later than __________,____) in the above-entitled (action) (special proceeding). Thenature of the relief being sought is asfollows:(State nature).You are required to make defense to such pleading not laterthan (__________, ____) and upon your failure to do so the partyseeking service against you will apply to the court for therelief sought.This, the __________ day of __________, ________________ (Attorney) (Party)____________ (Address)
Proof of service. – Proof of service of process shall be as follows:(1) Personal Service. – Before judgment by default may be had on personal service, proof of service must be provided in accordance with the requirements of G.S. 1-75.10(1).(2) Registered or Certified Mail. – Before judgment by default may be had on service by registered or certified mail, the serving party shall file an affidavit with the court showing proof of such service in accordance with the requirements of G.S. 1-75.10(4). This affidavit together with the return receipt signed by the person who received the mail if not the addressee raises a presumption that the person who received the mail and signed the receipt was an agent of the addressee authorized by appointment or by law to be served or to accept service of process or was a person of suitable age and discretion residing in the addressee’s dwelling house or usual place of abode. In the event the presumption described in the preceding sentence is rebutted by proof that the person who received the receipt at the addressee’s dwelling house or usual place of abode was not a person of suitable age and discretion residing therein, the statute of limitation may not be pleaded as a defense if the action was initially commenced within the period of limitation and service of process is completed within 60 days from the date the service is declared invalid. Service shall be complete on the day the summons and complaint are delivered to the address.(3) Publication. – Before judgment by default may be had on service by publication, the serving party shall file an affidavit with the court showing the circumstances warranting the use of service by publication, information, if any, regarding the location of the party served which was used in determining the area in which service by publication was printed and proof of service in accordance with G.S. 1-75.10(2).
Service in a foreign country. – Unless otherwise provided by federal law, service upon a defendant, other than an infant or an incompetent person, may be effected in a place not withinthe United States:(1) By any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or(2) If there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:a. In the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction;b. As directed by the foreign authority in response to a letter rogatory or letter of request; orc. Unless prohibited by the law of the foreign country, by1. Delivery to the individual personally of a copy of the summons and the complaint and, upon a corporation, partnership, association or other such entity, by delivery to an officer or a managing or general agent;2. Any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or(3) By other means not prohibited by international agreement as may be directed by the court.
Service under subdivision (2)c.1. or (3) of this subsection may be made by any person authorized by subsection (a) of this Rule or who is designated by order of the court or by the foreign court.On request, the clerk shall deliver the summons to the plaintiff for transmission to the person or the foreign court or officer who will make the service. Proof of service may be made as prescribed in G.S. 1-75.10, by the order of the court, or by the law of the foreign country.Proof of service by mail shall include an affidavit or certificate of addressing and mailing by the clerk of court.Process or judgment by default not to be attacked on certain grounds. – No party may attack service of process or a judgment of default on the basis that service should or could have been effected by personal service rather than service by registered or certified mail. No party that receives timely actual notice may attack a judgment by default on the basis that the statutory requirement of due diligence as a conditionprecedent to service by publication was not met.Personal jurisdiction by acceptance of service. – Any party personally, or through the persons may accept service of process by notation of acceptance ofservice together with the signature of the party accepting service and the date thereof on an original or copy of a summons, and such acceptance shall have the same force and effect as would exist had the process been served by delivery of copy and summons and complaint to the person signing said acceptance.
Process – Manner of service to exercise jurisdiction in rem or quasi in rem. – In any action commenced in a court of this State having jurisdiction of the subject matter and grounds for the exercise of jurisdiction in rem or quasi in rem, the manner of service of process shall be as follows:(1) Defendant Known. – If the defendant is known, hemay be served in the appropriate manner prescribed for service of process in section, or, if otherwise appropriate section ; except that the requirement for service by publication in shall be satisfied if made in the county where theaction is pending and proof of service is made in accordance with section .(2) Defendant Unknown. – If the defendant is unknown, he may be designated by description and process may be served by publication in the manner provided in section, except that the requirement for service by publication in shall be satisfied if made in the county where the action is pending and proof of service is made in accordance with section.
Rule 5. Service and filing of pleadings and other papers.
Service of orders, subsequent pleadings, discovery papers, written motions, written notices, and other similar papers – When required. – 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 tobe 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 and similar paper shall be served upon each of the parties, but 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.
Service of briefs or memoranda in support or opposition of certain dispositive motions. – In actions in superior court, every brief or memorandum in support of or in opposition to a motion to dismiss, a motion for judgment on the pleadings, a motion for summary judgment, or any other motion seeking a final determination of the rights of the parties as to one or more of the claims or parties in the action shall be served upon each of the parties at least two days before the hearing on the motion. If the brief or memorandum is not served on the other parties at least two days before the hearing on the motion, the court may continue the matter for a reasonable period to allow the responding party to prepare a response, proceed with the matter without considering the untimely served brief or memorandum, or take such other action as the ends of justice require. The parties may, by consent, alter the period of time for service. For the purpose of this two-day requirement only, service shall mean personal delivery, facsimile transmission,or other means such that the party actually receives the brief within the required time.
Service – How made. – A pleading setting forth a counterclaim or cross claim shall be filed with the court and a copy thereof shall be served on the party against whom it isasserted or on his attorney of record. With respect to all pleadings subsequent to the original complaint and other papers required or permitted to be served, service with due return may be made in the manner provided for service and return of process in Rule 4 and may be made upon either the party or, unless service upon the party himself is ordered by the court, upon his attorney of record. With respect to such other pleadings and papers, service upon the attorney or upon a party may also be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by filing it with the clerk of court. Delivery of a copy within this rule means handing it to the attorney or to the party; or leaving it at the attorney’s office with a partner or employee. Service by mail shall be complete upon deposit of the pleading or paper enclosed in a post-paid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service.
Service – Numerous defendants. – In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any crossclaim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoidedby 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 beserved upon the parties in such manner and form as the court directs.
Filing. – All pleadings subsequent to the complaint shall be filed with the court. All other papers required to be served upon a party, including requests for admissions, shall be filed with the court either before service or within five days thereafter, except that depositions, interrogatories, requests for documents, and answers and responses to those requests may not be filed unless ordered by the court or until used in the proceeding. The party taking a deposition or obtaining material through discovery is responsible for its preservation and delivery to the court if needed or so ordered. With respect to all pleadings and other papers as to which service and return has not been made in the manner provided in Rule 4, proof of service shall be made by filing with the court a certificate either by the attorney or the party that the paper was served in the manner prescribed by this rule, or a certificate of acceptance of service by the attorney or the party to be served. Such certificate shall show the date and method of service or the date of acceptance of service.
The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk. If the Supreme Court and the Administrative Officer of the Courts establish uniform rules, regulations, procedures and specifications for the filing of pleadings or other court papers by telefacsimile transmission, filing may be made by the transmission when, in the manner, and to the extent provided therein.
Rule 6. Time.Computation. – In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, including rules, orders or statutes respecting publication of notices, the day of the act, event, default or publication after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or a legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday.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, the court for cause shown may at any time in its discretion 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. Upon motion made after the expiration of the specified period, the judge may permit the act to be done where the failure to act was the result of excusable neglect. Notwithstanding any other provisions of this rule, the parties may enter into binding stipulations without approval of the court enlarging the time, not to exceed in the aggregate 30 days, within which an act is required or allowed to be done under these rules, provided, however, that neither the court nor the parties may extend the time for taking any action under Rules 50(b), 52, 59(b), (d), (e), 60(b), except to the extent and under the conditions stated in them.(c)Unaffected by expiration of session. – 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 session of court. The continued existence or expiration ofa session of court in no way affects the power of a court to do any act or take any proceeding, but no issue of fact shall be submitted to a jury out of session.(d)For motions, affidavits. – A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and except as otherwise provided in Rule 59(c), opposing affidavits shall be served at least two days before the hearing. If the opposing affidavitis not served on the other parties at least two days before the hearing on the motion, the court may continue the matter for a reasonable period to allow the responding party to prepare a response, proceed with the matter without considering the untimely served affidavit, or take such other action as the ends of justice require. For the purpose of this two-day requirement only, service shall mean personal delivery, facsimile transmission, or other means such that the party actually receives the affidavit within the required time.(e)Additional time after service by mail. – Whenever a party has the right to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period. (1967, c. 954, s. 1;2000-127, s. 5.)
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Georgia Process Service Laws
By admin | April 9, 2010
Title 9. Civil Practice
9-10-94. Service. A person subject to the jurisdiction of the courts of the state under Code Section 9-10-91, or his executor or administrator, may be served with a summons outside the state in the same manner as service is made within the state 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 the equivalent in such jurisdiction.(Ga. L. 1966, p. 343, § 3.)9-11-4. Process.(a) Summons – Issuance. Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service. Upon request of the plaintiff separate or additional summons shall issue against any defendants.(b) Summons – Form. The summons shall be signed by the clerk; contain the name of the court and county 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 state the time within which this chapter requires the defendant to appear and file appropriate defensive pleadings with the clerk of the court, and shall notify the defendant 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) Summons – By whom served. Process shall be served by the sheriff of the county where the action is brought or where the defendant is found, or by his deputy, or by the marshal or sheriff of the court, or by his deputy, or by any citizen of the United States specially appointed by the court for that purpose or by someone who is not a party and is not younger than 18 years of age and has been appointed as a permanent process server by the court in which the action is brought. Where the service of process is made outside of the United States, after an order of publication, it may be served either by any citizen of the United States or by any resident of the country, territory, colony, or province who is specially appointed by the court for that purpose. When service is to be made within this state, the person making such service shall make the service within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service.(d) Summons – Personal service. The summons and complaint shall be served together. The plaintiff shall furnish the clerk of the court with such copies as are necessary. Service shall be made by delivering a copy of the summons attached to a copy of the complaint as follows:(1) If the action is against a corporation incorporated or domesticated under the laws of this state or a foreign corporation authorized to transact business in this state, to the president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof, provided that when for any reason service cannot be had in such manner, the Secretary of State shall be an agent of such corporation upon whom any process, notice, or demand may be served. Service on the Secretary of State of any such process, notice, or demand shall be made by delivering to and leaving with him or with any other person or persons designated by the Secretary of State to receive such service a copy of such process, notice, or demand, along with a copy of the affidavit to be submitted to the court pursuant to this Code section. The plaintiff or his attorney shall certify in writing to the Secretary of State that he has forwarded by registered mail such process, service, or demand to the last registered office or agent listed on the records of the Secretary of State, that service cannot be effected at such office, and that it therefore appears that the corporation has failed either to maintain a registered office or appoint a registered agent in this state. Further, if it shall appear from such certification that there is a last known address of a known officer of the corporation outside the state, the plaintiff shall, in addition to and after such service upon the Secretary of State, mail or cause to be mailed to the known officer at the address by registered or certified mail a copy of the summons and a copy of the complaint. Any such service by certification to the Secretary of State shall be answerable not more than 30 days from the date the Secretary of State receives such certification;(2) If the action is against a foreign corporation or a nonresident individual, partnership, joint-stock company, or association, doing business and having a managing or other agent, cashier, or secretary within this state, to such agent, cashier, or secretary or to an agent designated for service of process;(3) If against a minor, to the minor, personally, and also to his father or his mother or his guardian or his duly appointed guardian ad litem (unless the minor is married, in which case service shall not be made on the minor’s father or his mother or his guardian);(4) If against a person residing within this state who has been judicially declared to be of unsound mind or incapable of conducting his own affairs and for whom a guardian has been appointed, to the person and also to his guardian and, if there is no guardian appointed, then to his duly appointed guardian ad litem;(5) If against a county, municipality, city, or town, to the chairman of the board of commissioners, president of the council of trustees, mayor or city manager of the city or to an agent authorized by appointment to receive service of process. If against any other public body or organization subject to an action, to the chief executive officer or clerk thereof;(6) If the principal sum involved is less than $200.00 and if reasonable efforts have been made to obtain personal service by attempting to find some person residing at the most notorious place of abode of the defendant, then by securely attaching the service copy of the complaint in a conspicuously marked and waterproof packet to the upper part of the door of the abode and on the same day mailing by certified or registered mail an additional copy to the defendant at his last known address, if any, and making an entry of this action on the return of service; or(7) In all other cases to the defendant 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 of the summons and complaint to an agent authorized by appointment or by law to receive service of process.(e) Summons – Other service.(1) Service by Publication.(A) General. When the person on whom service is to be made resides outside the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of the summons, and the fact shall appear, by affidavit, to the satisfaction of the judge or clerk of the court, and it shall appear, either by affidavit or by a verified complaint on file, that a claim exists against the defendant in respect to whom the service is to be made, and that he is a necessary or proper party to the action, the judge or clerk may grant an order that the service be made by the publication of summons, provided that when the affidavit is based on the fact that the party on whom service is to be made resides outside the state, and the present address of the party is unknown, it shall be a sufficient showing of such fact if the affiant shall state generally in the affidavit that at a previous time such person resided outside this state in a certain place (naming the place and stating the latest date known to affiant when the party so resided there); that such place is the last place in which the party resided to the knowledge of affiant; that the party no longer resides at the place; that affiant does not know the present place of residence of the party or where the party can be found; and that affiant does not know and has never been informed and has no reason to believe that the party now resides in this state; and, in such case, it shall be presumed that the party still resides and remains outside the state, and the affidavit shall be deemed to be a sufficient showing of due diligence to find the defendant. This Code section shall apply to all manner of civil actions, including those for divorce.(B) Property. In any action which relates to, or the subject of which is, real or personal property in this state in which any defendant, corporate or otherwise, has or claims a lien or interest, actual or contingent, or in which the relief demanded consists wholly or in part of excluding such defendant from any interest therein, where the defendant resides outside the state or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of summons, the judge or clerk may make an order that the service be made by publication of summons. The service by publication shall be made in the same manner as provided in all cases of service by publication.(C) Publication. When the court orders service by publication, the clerk shall cause the publication to be made in the paper in which sheriff’s advertisements are printed, four times within the ensuing 60 days, publications to be at least seven days apart. The party obtaining the order shall, at the time of filing, deposit the cost of publication. The published notice shall contain the name of the parties plaintiff and defendant, with a caption setting forth the court, the character of the action, the date the action was filed, the date of the order for service by publication, and a notice directed and addressed to the party to be thus served, commanding him to file with the clerk and serve upon the plaintiff’s attorney an answer within 60 days of the date of the order for service by publication and shall bear teste in the name of the judge and shall be signed by the clerk of the court. Where the residence or abiding place of the absent or nonresident party is known, the party obtaining the order shall advise the clerk thereof; and it shall be the duty of the clerk, within 15 days after filing of the order for service by publication, to enclose, direct, stamp, and mail a copy of the notice, together with a copy of the order for service by publication and complaint, if any, to the party named in the order at his last known address, if any, and make an entry of this action on the complaint or other pleadings filed in the case. The copy of the notice to be mailed to the nonresident shall be a duplicate of the one published in the newspaper but need not necessarily be a copy of the newspaper itself. When service by publication is ordered, personal service of a copy of the summons, complaint, and order of publication outside the state in lieu of publication shall be equivalent to serving notice by publication and to mailing when proved to the satisfaction of the judge or otherwise. The defendant shall have 30 days from the date of such personal service outside the state in which to file defensive pleadings.(2) Personal service outside the state. Personal service outside the state upon a natural person may be made:(A) in any action where the person served is a resident of this state, and(B) in any action affecting specific real property or status, or in any other proceeding in rem without regard to the residence of the person served. When such facts shall appear, by affidavit, to the satisfaction of the court and it shall appear, either by affidavit or by a verified complaint on file, that a claim is asserted against the person in respect to whom the service is to be made, and that he is a necessary or proper party to the action, the court may grant an order that the service be made by personal service outside the state. Such service shall be made by delivering a copy of the process together with a copy of the complaint in person to the persons served.(f) Territorial limits of effective service. All process may be served anywhere within the territorial limits of the state and, when a statute so provides, beyond the territorial limits of the state.(g) Return. The person serving the process shall make proof of service thereof to the court promptly and, in any event, within the time during which the person served must respond to the process. Proof of service shall be as follows:(1) If served by a sheriff or marshal, or his deputy, the affidavit or certificate of the sheriff, marshal, or deputy;(2) If by any other proper person, his affidavit thereof;(3) In case of publication, the certificate of the clerk of court certifying to the publication and mailing; or(4) The written admission or acknowledgment of service by the defendant.In case of service otherwise than by publication, the certificate or affidavit shall state the date, place, and manner of service. Failure to make proof of service shall not affect the validity of the service.(h) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.(i) Alternative service. The methods of service provided in this Code section are cumulative and may be utilized with, after, or independently of other methods of service. Whenever a statute provides for another method of service, service may be made under the circumstances and in the manner prescribed by the statute or under any other methods prescribed in this Code section. The provisions for service by publication provided in this Code section shall apply in any action or proceeding in which service by publication may be authorized by law; and, where by law special provision is made for service by publication, the procedure for such service by publication provided in this Code section may be utilized in lieu thereof. In all cases or special proceedings where the requirements or procedure for service, or both, are not prescribed by law and in any situation where the provisions therefor are not clear or certain, the court may prescribe service according to the exigencies of each case, consistent with the Constitution.(j) Service in probate courts and special statutory proceedings. The methods of service provided in this Code section may be used as alternative methods of service in proceedings in the probate courts and in any other special statutory proceedings and may be used with, after, or independently of the method of service specifically provided for in any such proceeding; and, in any such proceeding, service shall be sufficient when made in accordance with the statutes relating particularly to the proceeding or in accordance with this Code section.(Ga. L. 1966, p. 609, § 4; Ga. L. 1967, p. 226, §§ 1-3, 51; Ga. L. 1968, p. 1036, § 1; Ga. L. 1968, p. 1104, §§ 1, 2; Ga. L. 1969, p. 487, § 1; Ga. L. 1972, p. 689, §§ 1-3; Ga. L. 1980, p. 1124, § 1; Ga. L. 1982, p. 3, § 9; Ga. L. 1984, p. 22, § 9; Ga. L. 1989, p. 364, § 1; Ga. L. 1991, p. 626, § 1; Ga. L. 1993, p. 91, § 9.)24-10-23. Service of subpoenas. A subpoena may be served by any sheriff, by his deputy, or by any other person not less than 18 years of age. Proof may be shown by return or certificate endorsed on a copy of the subpoena. Subpoenas may also be served by registered or certified mail, and the return receipt shall constitute prima-facie proof of service. Service upon a party may be made by serving his counsel of record.(Ga. L. 1966, p. 343, § 3.)(Laws 1792, Cobb’s 1851 Digest, p. 353; Laws 1799, Cobb’s 1851 Digest, p. 276; Code 1863, § 3764; Code 1868, § 3788; Ga. L. 1873, p. 25, § 1; Code 1873, § 3841; Code 1882, § 3841; Civil Code 1895, § 5260; Civil Code 1910, § 5849; Code 1933, § 38-1501; Ga. L. 1966, p. 502, § 1.)(a) The acceptance by any nonresident of this state, whether a person, firm, or corporation, of the rights and privileges conferred by the laws now or hereafter enforced in this state permitting the operation of motor vehicles, as evidenced by the operation of a motor vehicle by any such nonresident anywhere within the territorial limits of this state, shall be deemed equivalent to the appointment by such nonresident of the Secretary of State of Georgia, or his successor in office, to be his true and lawful attorney in fact upon whom may be served all summonses or other lawful processes in any action or proceeding against any such nonresident growing out of any accident or collision in which any such nonresident may be involved by reason of the operation by him, for him, or under his control or direction, express or implied, of a motor vehicle anywhere within the territorial limits of the State of Georgia, and said acceptance or operation shall be a signification of his agreement that any such process against him shall be of the same legal force and validity as if served upon him personally.(b) If such nonresident motorist is a minor, then the minor and his parents or guardians shall be deemed to have assented to the appointment by such nonresident minor and his parents or guardians of the Secretary of State of Georgia, or his successor in office, to be the true and lawful attorney in fact for such minor and his parents or guardians, upon whom may be served any summons or other lawful process in any action or proceeding against such nonresident minor, his parents, or guardians growing out of any accident or collision in which any such nonresident minor may be involved by reason of the operation by him, for him, or under his control or direction, express or implied, of a motor vehicle anywhere within the territorial limits of the State of Georgia, and such acceptance or operation shall be a signification of his agreement or an agreement for him by his parents or guardians that any such process against him or them shall be of the same legal force and validity as if served upon him or them personally; and in this respect, the court wherein such action shall have been filed shall be authorized to appoint, upon motion duly made, a guardian ad litem for such minor for the purposes of defending such suit.(Ga. L. 1937, p. 732, § 1; Ga. L. 1964, p. 299, § 1; Ga. L. 1967, p. 800, § 1.)40-12-2. How service on nonresident made. Service of process upon a nonresident pursuant to Code Section 40-12-1 shall be made by serving a copy of the complaint or other pleading with summons attached thereto on the Secretary of State, his duly authorized agent, or his successor in office, along with a copy of the affidavit to be submitted to the court pursuant to this Code section. Such service shall be sufficient service upon any such nonresident, provided that notice of such service and a copy of the complaint and process are forthwith sent by registered or certified mail by the plaintiff to the defendant, if his address is known, and the defendant’s return receipt and the plaintiff’s affidavit of compliance with this Code section are appended to the summons or other process and filed with the summons, complaint, and other papers in the case in the court wherein the action is pending. The Secretary of State shall charge and collect a fee as set out in Code Section 45-13-26 for service of process on him under this Code section.(Ga. L. 1937, p. 732, § 2; Ga. L. 1959, p. 113, § 1; Ga. L. 1965, p. 231, § 1; Ga. L. 1983, p. 1474, § 2; Ga. L. 1984, p. 22, § 40; Ga. L. 1989, p. 364, § 2.)
Topics: Process Service | No Comments »
Colorado Foreclosure Process Service Laws
By admin | April 9, 2010
Rule 4. Process(a) To What Applicable. This Rule applies to all process except as otherwise provided by these rules.(b) Issuance of Summons by Attorney or Clerk. The summons may be signed and issued by the clerk, under the seal of the court, or it may be signed and issued by the attorney for the plaintiff. Separate additional or amended summons may issue against any defendant at any time. All other process shall be issued by the clerk, except as otherwise provided in these rules.(c) Contents of Summons. The summons shall contain the name of the court, the county in which the action is brought, the names or designation of the parties, shall be directed to the defendant, shall state the time within which the defendant is required to appear and defend against the claims of the complaint, and shall notify him that in case of his failure to do so, judgment by default may be rendered against him. If the summons is served by publication, the summons shall briefly state the sum of money or other relief demanded. The summons shall in the signature element thereof, contain the name, address, and registration number of the plaintiff’s attorney, if any, and if not, the address of the plaintiff. Except in case of service by publication under Rule 4(g) or when otherwise ordered by the court, the complaint shall be served with the summons, and in all other cases service of a summons alone after the effective date of this amended rule shall not constitute service of process. In any case, where by special order personal service of summons is allowed without the complaint, a copy of the order shall be served with the summons.(d) By Whom Served. Process may be served inside or outside this state by the sheriff of the county where the service is made, or by a deputy, or by any other person over the age of eighteen years, not a party to the action;(e) Personal Service. Personal service shall be as follows:(1) Upon a natural person over the age of eighteen years by delivering a copy or copies thereof to the person, or by leaving a copy or copies thereof at the person’s usual place of abode, with any person over the age of eighteen years who is a member of the person’s family, or at the person’s usual place of business, with the person’s secretary, bookkeeper, manager, or chief clerk; or by delivering a copy to an agent authorized by appointment or by law to receive service of process;(2) Upon a natural person, between the ages of thirteen years and eighteen years, by delivering a copy thereof to the person and another copy thereof to the person’s father, mother, or guardian, or if there be none in the state, then by delivering a copy thereof to any person in whose care or control the person may be; or with whom the person resides, or in whose service the person is employed; and upon a natural person under the age of thirteen years by delivering a copy to the person’s father, mother, or guardian, or if there be none in the state, then by delivering a copy thereof to the person in whose care or control the person may be.(3) Upon a person for whom a conservator has been appointed, by delivering a copy thereof to such conservator;(4) Upon a partnership, or other unincorporated association, by delivering a copy thereof to one or more of the partners or associates, or a managing or general agent thereof;(5) Upon a private corporation, by delivering a copy thereof to any officer, manager, general agent, or registered agent. If no such officer or agent can be found in the county in which the action is brought, such copy may be delivered to any stockholder, agent, member, or principal employee found in such county. If such service is upon a person other than an executive officer, the secretary, general agent, or registered agent, then the clerk shall mail a copy thereof to the corporation at its last known address, at least twenty days before default is entered;(6) Upon a municipal corporation, by delivering a copy thereof to the mayor, city manager, clerk, or deputy clerk of such corporation;(7) Upon a county, by delivering a copy thereof to the county clerk, chief deputy, county commissioner, or designee authorized to accept service of process;(8) Upon a school district, by delivering a copy thereof to the superintendent or to any other employee authorized to accept service of process;(9) Upon the state by delivering a copy thereof to the attorney general, or to any employee in his office designated by him to accept service of process;(10) (A) Upon an officer, agent, or employee of the state, acting in his official capacity, by delivering a copy thereof to the officer, agent, or employee, and by delivering a copy to the attorney general, or to any employee in his office designated by him to accept service of process.(B) Upon a department or agency of the state, subject to suit, by delivering a copy thereof to the principal officer, chief clerk, or other executive employee thereof, and by delivering a copy to the attorney general, or any employee in his office designated by him to accept service of process.(C) For all purposes the date of service upon the officer, agent, employee, department, or agency shall control, except that failure to serve copies upon the attorney general within three days of service upon the officer, agent, employee, department, or agency shall extend the time within which the officer, agent, employee, department, or agency must file a responsive pleading for sixty days beyond the time otherwise provided by these Rules.(f) [RESERVED](g) Other Service. Service by mail or publication shall be allowed only in actions affecting specific property or status or other proceedings in rem. The party desiring service of process by publication or mail shall file a motion verified by the oath of such party or of someone in the party’s behalf for an order of service by mail or publication. It shall state the facts authorizing such service, and shall show the efforts, if any, that have been made to obtain personal service and shall give the address, or last known address, of each person to be served or shall state that the address and last known address are unknown. The court shall hear the motion ex parte and, if satisfied that due diligence has been used to obtain personal service or that efforts to obtain the same would have been to no avail, shall:(1) Order the clerk to send by registered or certified mail a copy of the process addressed to such person at such address, requesting a return receipt signed by the addressee only. Such service shall be complete on the date of the filing of the clerk’s proof thereof, together with such return receipt attached thereto signed by such addressee, or(2) Order publication of the process in a newspaper published in the county in which the action is pending. Such publication shall be made for four weeks. Within fifteen days after the order the clerk shall mail a copy of the process to each person whose address or last known address has been stated in the motion. Service shall be complete on the day of the last publication. If no newspaper is published in the county, the court shall designate one in some adjoining county.(h) Manner of Proof.(1) If served in a state or territory of the United States by a sheriff or United States marshal, or a deputy, by such person’s certificate with a statement as to date, place, and manner of service;(2) If by any other person, by the person’s affidavit thereof, with the same statement;(3) If by mail, by the certificate of the clerk showing the date of the mailing, and the date the clerk received the return receipt;(4) If by publication, by the affidavit of publication, together with the certificate of the clerk as to the mailing of copy of the process where required;(5) By the written admission or waiver of service by the person or persons to be served, duly acknowledged.(i) Waiver of Service of Summons. A defendant who waives service of a summons does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant.(j) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process is issued.(k) Refusal of Copy. If a person to be served refuses to accept a copy of the process, service shall be sufficient if the person serving the process knows or has reason to identify the person who refuses to be served, identifies the documents being served and offers to deliver a copy of the documents to the person who refuses to be served.Source: Entire rule amended and adopted, April 30, 1997, effective July 1, 1997.Cross references: For service of process upon any person subject to the jurisdiction of the courts of Colorado, see § 13-1-125; for subpoenas, see C.R.C.P. 45; for attachments, see C.R.C.P. 102; for garnishments, see C.R.C.P. 103; for replevin, see C.R.C.P. 104; for performance of the duties of the sheriff by the coroner when the former is a party to the action, see § 30-10-605; for publication of legal notices, see part 1 of article 70 of title 24; for certificates made in name of officer, see C.R.C.P. 110(c); for parties, see C.R.C.P. 17 to 25.I. GENERAL CONSIDERATION.Knowledge of a defendant of the pendency of an action cannot be substituted for service of process, for courts acquire jurisdiction in actions “in rem” as well as in actions “in personam” by lawful service of lawful process or by voluntary appearance. Weber v. Williams, 137 Colo. 269, 324 P.2d 365 (1958).A judgment rendered without service, or upon the unauthorized appearance of an attorney, is void, and all proceedings had thereunder are as to all persons, irrespective of notice or bona fides, absolute nullities. Weber v. Williams, 137 Colo. 269, 324 P.2d 365 (1958).Absence of legal service or authorized appearance is jurisdictional, and, without jurisdiction, no judgment whatever will be entered, nor rights acquired thereunder. Weber v. Williams, 137 Colo. 269, 324 P.2d 365 (1958); United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992).When jurisdiction has been obtained by the service of process, actual or constructive, all subsequent proceedings are an exercise of jurisdiction, and however erroneous, they are not void, but voidable only, and not subject to collateral attack. Brown v. Tucker, 7 Colo. 30, 1 P. 221 (1883).It is not incumbent upon a defendant to do anything to make service of process upon him valid or regular. Coppinger v. Coppinger, 130 Colo. 175, 274 P.2d 328 (1954); Weber v. Williams, 137 Colo. 269, 324 P.2d 365 (1958).Proper service question of fact. Whether personal or substituted service on a party has been properly made is a question of fact to be resolved by the trial court. Stubblefield v. District Court, 198 Colo. 569, 603 P.2d 559 (1979); People in Interest of S.C., 802 P.2d 1101 (Colo. App. 1989).Service on wrong person confers no jurisdiction. Where the person intended to be sued is named as defendant and service is had on a different person who is not acting for, nor an agent of, the defendant, such service confers no jurisdiction over either the person named in the process or the person actually served. Havens v. Hardesty, 43 Colo. App. 162, 600 P.2d 116 (1979).Distinction between subject-matter jurisdiction and personal jurisdiction. Long-arm statute, § 13-1-124, together with defendant’s note submitting to jurisdiction of Colorado courts for purposes of enforcement, conferred subject-matter jurisdiction. However, in absence of valid service of process, court lacked personal jurisdiction and judgment was void. United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992).An objection to lack of personal jurisdiction relates to the power of a court to compel a defendant to appear and to defend or face entry of a default judgment. And, an objection to service of process is directed to the manner of notifying a defendant that a plaintiff seeks to have a court exercise personal jurisdiction over the defendant. United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992).
III. ISSUANCE OF SUMMONS AND OTHER PROCESS.Law reviews. For article, “The Federal Rules from the Standpoint of the Colorado Code”, see 17 Dicta 170 (1940).Annotator’s note. Since section (5) of this rule is similar to § 35 of the former Code of Civil Procedure, which was supplanted by the rules of civil procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.The summons provided for by this rule is not a writ or process within the meaning of the constitution; there is no definition of “process”, given by any accepted authority, which implies that any writ or method by which a suit is commenced is necessarily “process”. A party is entitled to notice and to a hearing under the constitution before he can be affected, but it is nowhere declared or required that such notice shall be only a writ issuing out of a court. Comet Consol. Mining Co. v. Frost, 15 Colo. 310, 25 P. 506 (1890).A summons may be signed by an attorney and need not be under seal of court. Rand v. Pantagraph Co., 1 Colo. App. 270, 28 P. 661 (1891).When a clerk has been appointed by a judge, so long as the appointment is not revoked, the clerk or his deputy alone has power to discharge the clerical duties of the office, and a summons issued and signed by the judge is void, notwithstanding the disqualification of the clerk to act on account of absence or sickness. McNevins v. McNevins, 28 Colo. 245, 64 P. 199 (1901).A judge may elect to perform the duties of clerk of his court, and, when he does so elect, he is authorized to issue and sign all processes from his court. McNevins v. McNevins, 28 Colo. 245, 64 P. 199 (1901).A summons not issued and signed either by the clerk or plaintiff’s attorney is no summons. Russell v. Craig, 10 Colo. App. 428, 51 P. 1017 (1897).The service of an unsigned summons does not effectively bring defendants within the jurisdiction of the court. Brown v. Amen, 147 Colo. 468, 364 P.2d 735 (1961).An acceptance of service of a purported summons which was signed by neither the clerk nor plaintiff’s attorney would be no acceptance of service of summons. Russell v. Craig, 10 Colo. App. 428, 51 P. 1017 (1897).Entry of appearance by defendant to an action waives objections to summons or service thereof. Russell v. Craig, 10 Colo. App. 428, 51 P. 1017 (1897); see Brown v. Amen, 147 Colo. 468, 364 P.2d 735 (1961).Summons issued upon a defective, but amendable, complaint is not void. A complaint which is defective, but amendable, cannot be regarded as entirely void, nor can a summons be so regarded merely because it is issued upon such a complaint. And it is of no importance that a copy of the original complaint was attached to the summons as served upon the respondents, because they are bound to take notice of the rule relating to amendments, and, if they choose to act on the assumption either that the plaintiff would not seek an amendment or that the court would not permit one, they do so at their peril. Goodman v. City of Ft. Collins, 164 F. 970 (8th Cir. 1908).
IV. CONTENTS OF SUMMONS.A. In General.Law reviews. For article, “One Year Review of Civil Procedure and Appeals”, see 36 Dicta 5 (1959).Annotator’s note. Since section (c) of this rule is similar to § 36 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.The summons is a process by which parties are brought into court, so as to give a court jurisdiction over their persons. Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958).The purpose of a summons is to notify the defendant that an action has been brought against him, by whom, the place and court in which the same is brought, the relief demanded, and the time within which he must appear and answer in order to escape a judgment by default. Burkhardt v. Haycox, 19 Colo. 339, 35 P. 730 (1894).The form of a summons is prescribed by law, and whatever that form may be, it must be observed at least substantially. Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958).The provisions of this rule concern the essential content of a summons. Susman v. District Court, 160 Colo. 475, 418 P.2d 181 (1966).Provision of law is mandatory. Where the law expressly directs that process shall be in a specified form and issued in a particular manner, such a provision is mandatory, and a failure on the part of the proper official to comply with the law in that respect will render such process void. Smith v. Aurich, 6 Colo. 388 (1883).A summons must contain all that is required by this rule whether deemed needful or not. Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958).A summons which does not meet the requirements of the law is a nullity. Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958).If the summons is void, there is no jurisdiction over the parties. Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958).The summons must be prejudicial to be void. It is manifest without argument that a defect in the summons which will be sufficient to constitute it void or erroneous must be of such a character as to mislead the defendant to his prejudice, and to prejudicially affect, or tend to so affect, some substantial right. Rich v. Collins, 12 Colo. App. 511, 56 P. 207 (1898).There is a wide difference between a total failure and an inaccuracy or incompleteness of a required statement, especially so where the inaccuracy does not prejudicially affect a party nor tend in any manner to his injury. Rich v. Collins, 12 Colo. App. 511, 56 P. 207 (1898).If all of the material objects are clearly accomplished by the process, although other language be used than that of the rule, it would be unreasonable to say that the defendant might be heard to complain. Kimball v. Castagnio, 8 Colo. 525, 9 P. 488 (1885).If copy served on defendant is sufficient, deficiencies in certified copy are immaterial. Where a certified copy of a summons obtained from the clerk of the court below, and purporting to have been served on defendant, is deficient, but the copy of the summons certified to the court in the transcript of the record as served on the defendant does not show such deficiency, an objection that the summons served in the action is deficient will not be considered. Tabor v. Goss & Phillips Mfg. Co., 11 Colo. 419, 18 P. 537 (1888).A reference to the complaint for particulars does not aid a defective summons. Atchison, T. & S. F. R. R. v. Nichols, 8 Colo. 188, 6 P. 512 (1884); Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958).B. Naming of Parties.Rules make no exception to naming requirement. The rules of civil procedure make no exception in “in rem” actions, as distinguished from “in personam” actions, to the requirement that defendants be named if their names are known or be designated as “unknown” when such is the case. Barker v. District Court, 199 Colo. 416, 609 P.2d 628 (1980).The words “et al.” do not satisfy requirements that parties shall be named. Smith v. Aurich, 6 Colo. 388 (1882).An abbreviation of person’s name may suffice to identify party. Rich v. Collins, 12 Colo. App. 511, 56 P. 207 (1899).The omission of defendant’s middle initial in a summons is immaterial, since in legal contemplation such initial constitutes no part of a person’s name. Clark v. National Adjusters, Inc., 140 Colo. 593, 348 P.2d 370 (1959).Naming of defendants insufficient. The designations, “owner” and “operator”, in the caption of the case, without naming them, when those persons were known to the district attorney, are not in compliance with the requirements of the rules of civil procedure that a party defendant shall be named unless his name is unknown. Barker v. District Court, 199 Colo. 416, 609 P.2d 628 (1980).C. Nature of Action.Early provision required summons to state “the cause and general nature of the action”. Barndollar v. Patton, 5 Colo. 46 (1879) (decided under repealed Civil Code 1887, § 34).By a subsequent proviso it became no longer necessary. Burkhardt v. Haycox, 19 Colo. 339, 35 P. 730 (1894); Rich v. Collins, 12 Colo. App. 511, 56 P. 207 (1899).Even under the early provision, statement of nature of action was not necessary if copy of complaint was served. Swem v. Newell, 19 Colo. 397, 35 P. 734 (1894).D. Relief Demanded.Summons which fails to comply with the provision of this rule, which provides that it shall briefly state the sum of money or other relief demanded in the action, is fatally defective, and a motion to quash should be sustained. Farris v. Walter, 2 Colo. App. 450, 31 P. 231 (1892).A summons in a suit for contribution which states that the action is brought to recover judgment for such amount as should be found to be due from each defendant is not vulnerable to a motion to quash on the ground that it does not state the amount of money demanded. Taylor v. Hake, 92 Colo. 330, 20 P.2d 546 (1933).Prayer for relief can be aided by statements in complaint where copy thereof is served with summons. Sage Inv. Co. v. Haley, 59 Colo. 504, 149 P. 437 (1915).Under early proviso, reference to this pleading in no way aided a defective description in summons. Atchison, T. & S. F. R. R. v. Nichols, 8 Colo. 188, 6 P. 512 (1884) (decided under repealed Civil Code 1887, § 34).This rule does not require that a copy of the complaint must be served with the summons. Smith v. Aurich, 6 Colo. 388 (1882); Seeley v. Taylor, 17 Colo. 70, 28 P. 461 (1891), 28 P. 723 (1892).Summons in an action based on tort for false representations should show that the action is to recover damages for obtaining money from plaintiff by false and fraudulent representations or by deceit. Erisman v. McCarty, 77 Colo. 289, 236 P. 777 (1925).Action shown to be on contract. A summons stating that the action is for the recovery of money and interest thereon as well as attorney fees, according to the terms of each, shows that the action is on contract. Erisman v. McCarty, 77 Colo. 289, 236 P. 777 (1925).The phrase, “in consequence of certain acts and doings of said defendants”, is too indefinite to be capable of itself of imparting any information whatever, as to what the defendant is called upon to answer, nor can an expression so void of advice be aided by reference to the complaint. Smith v. Aurich, 6 Colo. 388 (1882).The relief demanded does not limit the plaintiff in respect to the remedy which he may have; the court will disregard the prayer and rely upon the facts alleged and proved as the basis of its remedial action. Nevin v. Lulu & White Silver Mining Co., 10 Colo. 357, 15 P. 611 (1887); Powell v. National Bank, 19 Colo. App. 57, 74 P. 536 (1903).Principle that clerk must look to summons alone for amount may apply only to entry of judgment. Where there is no imperative reason insofar as service and notice and the entry of default are concerned why the summons should state the sum of money demanded, the contention that the clerk must look to the summons alone for the amount demanded can be applied only to the lawful power of the clerk to enter the judgment, and when the clerk does not enter the judgment, but only enters the default, this contention fails for lack of application. Griffing v. Smith, 26 Colo. App. 220, 142 P. 202 (1914).V. BY WHOM SERVED.Law reviews. For article, “Constitutional Law”, see 32 Dicta 397 (1955).Annotator’s note. Since section (d) of this rule is similar to § 39 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.The words “or by any person not a party to the action” are intended to mean any other person competent to make the service, which, of necessity, excludes the attorneys in the case, they being incompetent. Nelson v. Chittenden, 53 Colo. 30, 123 P. 656 (1912).The service of a summons by a plaintiff in the cause is void, and a judgment entered in the absence of the defendant and upon such service is a nullity. Toenniges v. Drake, 7 Colo. 471, 4 P. 790 (1884).Service of process by an employee of counsel who is not counsel or associate counsel is proper service and does not violate the provisions of this rule requiring service to be made by any person not a party to the action. People in Interest of T.G., 849 P.2d 843 (Colo. App. 1992)Server is not required to go outside county in which action is pending. The sheriff, or person not a party to the action, to whom the summons in a civil action is delivered for service is not in his search for the defendant required to go outside the county in which the action brought is pending. The return thereon by such officer or person that defendant cannot after diligent search be found therein constitutes a proper and sufficient basis for publication of summons. Gamewell v. Strumpler, 84 Colo. 459, 271 P. 180 (1928).The sheriff loses his official character when he passes out of his own county, so that in serving a summons in another county he acts merely as an individual, and such service must be shown by his affidavit. His mere return, unsworn, is no evidence of the service, and judgment rendered upon such return of service, not otherwise shown, is void. Munson v. Pawnee Cattle Co., 53 Colo. 337, 126 P. 275 (1912).VI. PERSONAL SERVICE IN STATE.A. In General.Law reviews. For article, “One Year Review of Civil Procedure and Appeals”, see 36 Dicta 5 (1959). For article, “One Year Review of Civil Procedure and Appeals”, see 40 Den. L. Ctr. J. 66 (1963). For note, “Service of Process in Colorado: A Proposed Revision of Rule Four”, see 41 U. Colo. L. Rev. 569 (1969).Annotator’s note. Since section (e) of this rule is similar to § 40 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.This rule requires that a “copy” of the summons be served, not a duplicate original. Hocks v. Farmers Union Co-op. Gas & Oil Co., 116 Colo. 282, 180 P.2d 860 (1947).The rule is satisfied where a transcript of the original summons, bearing the names of the clerk and counsel for the plaintiff in typewriting is served; actual signatures were not necessary. Hocks v. Farmers Union Co-op. Gas & Oil Co., 116 Colo. 282, 180 P.2d 860 (1947).Voluntary appearance of a party is equivalent to personal service of process. Munson v. Luxford, 95 Colo. 12, 34 P.2d 91 (1935).In motions to quash the service of process, the plaintiffs in such actions have the burden, after challenge, of establishing by competent evidence all facts essential to jurisdiction. Harvel v. District Court, 166 Colo. 520, 444 P.2d 629 (1968).Clear and convincing proof by defendant is required. If the return on a summons is in proper form and shows service in accordance with the rule, the burden is upon defendant to overthrow the return by clear and convincing proof. Gibbs v. Ison, 76 Colo. 240, 230 P. 784 (1924).Mere failure to obtain proper service does not warrant dismissal of the cause of action. Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958).A cause of action filed may remain so indefinitely pending service of process upon the parties. Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958).Counsel impliedly authorized to accept service of process. Where an attorney is hired to commence a lawsuit, he is authorized to accept service of process in a closely related judicial proceeding. Southerlin v. Automotive Elec. Corp., 773 P.2d 599 (Colo. App. 1988).B. Upon Natural Persons.Law reviews. For article, “In Re: The Mourners”, see 6 Dicta 7 (April 1929).This rule requires that the copy of the summons and complaint be “delivered” to the proper person. Martin v. District Court, 150 Colo. 577, 375 P.2d 105 (1962).Clearly, by its own terms, the rule does not require that this “delivery” be accompanied by a reading aloud of the documents so served, or by explaining what they are, or by verbally advising the person sought to be served as to what he or she should do with the papers. Martin v. District Court, 150 Colo. 577, 375 P.2d 105 (1962).The term “usual place of abode” has generally been construed to mean the place where that person is actually living at the time service is attempted. Neher v. District Court, 161 Colo. 445, 422 P.2d 627 (1967); Security State Bank v. Weingardt, 42 Colo. App. 219, 597 P.2d 1045 (1979).It is not synonymous with “domicile”. Neher v. District Court, 161 Colo. 445, 422 P.2d 627 (1967); Security State Bank v. Weingardt, 42 Colo. App. 219, 597 P.2d 1045 (1979).Upon one’s induction into the armed forces, his parent’s home ceases to be his place of abode, and it does not matter in this regard that some of his clothing and personal belongings remain there or that he intends to return to his mother’s home, wherever it may be, as soon as his military service is terminated. While filial love binds him to his parents wherever they may be, and their home is his for lack of another, it is no longer his “actual place of abode” within the intendment of the rule. Neher v. District Court, 161 Colo. 445, 422 P.2d 627 (1967).The term “family” includes husband’s adult daughter who was visiting him at the time of service. In re Eisenhuth, 976 P.2d 896 (Colo. App. 1999).Service of summons upon an infant over the age of 14 years, but not upon the guardian, no guardian “ad litem” being appointed, but the record reciting that the infant defendant appeared by his next friend as well as by attorney was sufficient service and the appearance was authorized. Filmore v. Russell, 6 Colo. 171 (1881).C. Upon Unincorporated Associations.Annotator’s note. Since section (e)(4) of this rule is similar to that section of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.The general rule at common law was that where the obligation was joint only, all the joint obligors must be made parties defendant and must be sued jointly. Sargeant v. Grimes, 70 F.2d 121 (10th Cir.), cert. denied, 293 U.S. 568, 55 S. Ct. 79, 79 L.Ed. 667 (1934).The purpose of this rule is to change the common-law rule and provide a procedure whereby a partnership could be sued upon a partnership obligation, service made upon one or more but not all of the partners, and a judgment rendered binding the partnership and its property as well as the individual property of the partners served as partners. Sargeant v. Grimes, 70 F.2d 121 (10th Cir.), cert. denied, 293 U.S. 568, 55 S. Ct. 79, 79 L.Ed. 667 (1934).This rule only provides a method of suing a partnership in addition to the remedy already existing. Peabody v. Oleson, 15 Colo. App. 346, 62 P. 234 (1900).This rule is cumulative merely and does not affect the right to sue all the members of a firm by their several individual names and obtain a joint judgment against them as partners. Peabody v. Oleson, 15 Colo. App. 346, 62 P. 234 (1900).It makes the service of summons upon one partner sufficient to bring the partnership into court and bind its property by the judgment. Peabody v. Oleson, 15 Colo. App. 346, 62 P. 234 (1900).Service of summons includes serving member of family over 18 at residence. Service of summons upon a member of a partnership by leaving a copy of the summons and complaint at his usual place of residence with a member of his family over 15 (now 18) years of age is sufficient service on a partnership under this rule. Barnes v. Colorado Springs & C. C. D. Ry., 42 Colo. 461, 94 P. 570 (1908).No personal judgment can be obtained against the partners not served; as to them, the judgment rendered can bind only their interests in the partnership property. The judgment should be against the partnership, and in a proper manner, the individual property of the member or members served might be reached for the purpose of satisfying it. Peabody v. Oleson, 15 Colo. App. 346, 62 P. 234 (1900); Ellsberry v. Block, 28 Colo. 477, 65 P. 629 (1901); Blythe v. Cordingly, 20 Colo. App. 508, 80 P. 495 (1905).A judgment against a partnership binds the joint property of the associates and the separate property of members duly served with process. Denver Nat’l Bank v. Grimes, 97 Colo. 158, 47 P.2d 862 (1935).Where in an action upon a partnership debt only one of two partners was served with summons and a judgment was entered against the individual partner served, but no judgment was entered against the partnership and the other partner was afterwards brought in by “scire facias” and a judgment was entered against said partner as for an individual debt, then, in the absence of a judgment against the firm, it was error to render judgment against the other partner for the individual debt. Ellsberry v. Block, 28 Colo. 477, 65 P. 629 (1901).A judgment on copartnership promissory notes merged the notes into the judgment, although only one of the partners was served with summons or appeared in the action, and suit could not thereafter be maintained on the notes against the partners not served. Blythe v. Cordingly, 20 Colo. App. 508, 80 P. 495 (1905).Any member being served with summons has notice that he may appear in the case and set up any defense to the partnership liability or to his liability as a partner. Denver Nat’l Bank v. Grimes, 97 Colo. 158, 47 P.2d 862 (1935); Sargeant v. Grimes, 70 F.2d 121 (10th Cir.), cert. denied, 293 U.S. 568, 55 S. Ct. 79, 79 L.Ed. 667 (1934).Court has jurisdiction of a partner who is served for purposes of proceeding to final judgment against him. A judgment having been entered against a partnership and execution thereon having been returned unsatisfied under the provisions of this rule, the court has and continues to have jurisdiction of a partner who had been served with summons for the purpose of proceeding to final judgment against him. Denver Nat’l Bank v. Grimes, 97 Colo. 158, 47 P.2d 862 (1935).Service upon a partner in a partnership that, in turn, is a partner in a second partnership does not provide notice to the second partnership with sufficient notice of suit against it. Bush v. Winker, 892 P.2d 328 (Colo. App. 1994), aff’d, 907 P.2d 79 (Colo. 1995).Mere knowledge of the general partner of a partnership, which, in turn, is a partner in a second partnership, that a legal proceeding is pending is not a substitute for service upon the proper entity. Bush v. Winker, 892 P.2d 328 (Colo. App. 1994), aff’d, 907 P.2d 79 (Colo. 1995).An amendment adding name of another partner is not a change of the cause of action. Where an action is brought against a partnership under the proper partnership name and against one partner who is served with summons, an amendment setting forth the name of another partner and making him a party to the action is not a change of the cause of action by changing the parties to the contract sued on where the partnership named in the amendment and the matter sued on are the same as those named in the original. Adamson v. Bergen, 15 Colo. App. 396, 62 P. 629 (1900).An action may be maintained against a subordinate or branch organization or association upon a mutual benefit insurance policy where the policy is the obligation of the subordinate or branch association, although the association is under the control of, and the certificate is under the seal of, a supreme lodge. On such a policy an action is properly brought against them under its associate name. Endowment Rank of K. P. v. Powell, 25 Colo. 154, 53 P. 285 (1898).Ruling denying motion to quash service is appealable order. Where the defendant appears specially and moves to quash the service of summons upon the ground that the service under section (e)(4) of this rule is ineffective and void, then, when the trial court overrules this motion, this ruling denying the defendants’ motion to quash the service of summons is an appealable order. Wells Aircraft Parts Co. v. Allan J. Kayser Co., 118 Colo. 197, 194 P.2d 326 (1947).D. Upon Corporations.Determining corporate presence within the state is resolved by: (1) Leaving the matter in the sound discretion of a trial court; (2) distinguishing between those cases where merely the internal affairs of a corporation are involved and those cases where the corporation has had transactions with third persons; and (3) considering the equities of the case. Hibbard, Spencer, Bartlett & Co. v. District Court, 138 Colo. 270, 332 P.2d 208 (1958).The question of what constitutes doing business is a fact to be determined as any other fact. Hibbard, Spencer, Bartlett & Co. v. District Court, 138 Colo. 270, 332 P.2d 208 (1958).The contracting of a debt is a sufficient doing of business within this state to render a corporation amenable to the courts of this state if jurisdiction could be obtained by service of process as provided in this rule. Colorado Iron-Works v. Sierra Grande Mining Co., 15 Colo. 499, 25 P. 325 (1890).The Colorado supreme court has not condemned the manner of service of process under this rule as being unfair or as failing to give notice. Focht v. Southwestern Skyways, Inc., 220 F. Supp. 441 (D. Colo. 1963), aff’d, 336 F.2d 603 (10th Cir. 1964).To bind a corporation, the service of process must be upon the identical agent provided by the rule. Great W. Mining Co. v. Woodmas of Alston Mining Co., 12 Colo. 46, 20 P. 771 (1888).Subsection (e)(1) requires either personal service or substituted service at the party’s usual place of business, with the party’s stenographer, bookkeeper, or chief clerk. People in Interest of S.C., 802 P.2d 1101 (Colo. App. 1989).Service upon the vice-president of a corporation is sufficient even though the return does not show that the president could not be found in the county. Comet Consol. Mining Co. v. Frost, 15 Colo. 310, 25 P. 506 (1890).Determination of whether a person is a general agent of a corporation for service of process requires an analysis of that person’s duties, responsibilities, and authority. Denman v. Great Western Ry. Co., 811 P.2d 415 (Colo. App. 1990).Delivery of suit papers to corporation’s registered agent may be accomplished in the same manner as service on a “natural person” under subsection (e)(1). Thus, delivery of such papers to a registered agent’s “stenographer, bookkeeper, or chief clerk” constitutes delivery to that agent. Merrill Chadwick Co. v. October Oil Co., 725 P.2d 17 (Colo. App. 1986); Swanson v. Precision Sales & Serv., 832 P.2d 1109 (Colo. App. 1992).Secretary’s corporate employer which was the sole shareholder of defendant corporation and whose president was the defendant corporation’s registered agent held to be registered agent’s “stenographer” under rule authorizing service of process on natural person’s stenographer. Swanson v. Precision Sales & Serv., 832 P.2d 1109 (Colo. App. 1992).Service held proper where secretary was performing service directly for registered agent at the same address that he had listed as defendant’s corporation’s registered office since it was reasonable to conclude that the secretary would have given registered agent notice of service. Swanson v. Precision Sales & Serv., 832 P.2d 1109 (Colo. App. 1992).Service of process on defendant was proper where two copies of summons were served on an agent representing both defendants in the case and the summons did not specifically indicate which of the two defendants was being served. A party assumes the risk that errors in transmittal of service of process by its registered agent, who also receives service of process for numerous other entities, will bind the principal. Brown Grain & Livestock, Inc. v. Union Pac. Resource Co., 878 F.2d 157 (Colo. App. 1994).Nonresident officer not on business may be served in state. Under this rule service is legally sufficient when made on an officer of a corporation whose residence is in another state and who is at the time of service temporarily in this state on business not connected with the corporation; the fact that such officer invited such service would be pertinent in determining the validity thereof. Venner v. Denver Union Water Co., 40 Colo. 212, 90 P. 623 (1907).Service may properly be made upon agent of receivers who have displaced ordinary officers. The receivers of a foreign corporation, who by their appointment as such displace the ordinary officers of a corporation, are to be treated as foreign receivers, and if the return of the sheriff shows a service that would have been sufficient upon the corporation under its ordinary management, it must be equally sufficient if made upon an agent of the receivers when the affairs of the corporation are under the management of the latter. Ganebin v. Phelan, 5 Colo. 83 (1879).Under this rule, service is proper upon the agent of a foreign corporation if made within the state. White-Rodgers Co. v. District Court, 160 Colo. 491, 418 P.2d 527 (1966).Corporation was properly served when the individual registered agent was properly served and thus the trial court had in personam jurisdiction. Merrill Chadwick Co. v. October Oil Co., 725 P.2d 17 (Colo. App. 1986).Service shall be made upon agent in county where action is brought. In a suit against a foreign corporation, service must be made upon it by delivering a copy of the summons to its agent found within the county where the action is brought. Venner v. Denver Union Water Co., 15 Colo. App. 495, 63 P. 1061 (1900).It is only in such agent not found within the county that substituted service is valid. Venner v. Denver Union Water Co., 15 Colo. App. 495, 63 P. 1061 (1900).Service upon stockholder is a nullity unless agent is not found. Service upon a stockholder, unless there is a failure to find the agent, is a nullity. Venner v. Denver Union Water Co., 15 Colo. App. 495, 63 P. 1061 (1900).A person engaged in settling an insurance loss in state is an agent. Where a foreign insurance corporation employs an adjusting company to settle a loss sustained in Colorado and an employee of the latter company is given the insurance company’s files and drafts for payment of any sum agreed upon in settlement of the claim and invested with full power to make the adjustment, then, in these circumstances, such an employee of the adjustment company is the agent of the insurance company, and service of process on him is service on the latter company. Union Mut. Life Co. v. District Court, 97 Colo. 108, 47 P.2d 401 (1935).In an action against a corporation upon a claim for services by an agent assigned by such agent to plaintiff, service of summons upon the agent who assigned the claim is not a sufficient service on the corporation. White House Mt. Gold Mining Co. v. Powell, 30 Colo. 397, 70 P. 679 (1902).Service may be had upon stockholder. It is only in the event that no agent is found in the county that service may be had upon a stockholder. Venner v. Denver Union Water Co., 15 Colo. App. 495, 63 P. 1061 (1900).VII. PERSONAL SERVICE OUTSIDE THE STATE.A. In General.Law reviews. For article, “Some Footnotes to the 1945 Statutes”, see 22 Dicta 130 (1945). For article, “Constitutional Law”, see 32 Dicta 397 (1955). For article, “Another Decade of Colorado Conflicts”, see 33 Rocky Mt. L. Rev. 139 (1961). For article, “Colorado’s Short-Arm Jurisdiction”, see 37 U. Colo. L. Rev. 309 (1965). For article, “Rule-Making in Colorado: An Unheralded Crisis in Procedural Reform”, see 38 U. Colo. L. Rev. 137 (1966).B. Natural Persons.Law reviews. For article, “Conflict of Laws, Constitutional Law, Elections”, see 30 Dicta 449 (1953). For article, “Civil Remedies and Civil Procedure”, see 30 Dicta 465 (1953).This rule relating to personal service outside the state is confined to the question of who is, or who is not, a resident of the state of Colorado. Kellner v. District Court, 127 Colo. 320, 256 P.2d 887 (1953).Burden of proof is on plaintiff. When the question of Colorado residence is raised and a denial thereof is prima facie made, the burden of establishing, or proving, that defendants are in fact residents of Colorado is on plaintiffs. Kellner v. District Court, 127 Colo. 320, 256 P.2d 887 (1953).”Residence” and “domicile” are commonly taken as being synonymous, notwithstanding that in precise usage they are not convertible terms. Rust v. Meredith Publishing Co., 122 F. Supp. 879 (D. Colo. 1954).”Place of abode” is not necessarily synonymous with “domicile”. The term “usual place of abode” has generally been construed to mean the place where that person is actually living at the time service is attempted; it is not necessarily synonymous with “domicile”. Neher v. District Court, 161 Colo. 445, 422 P.2d 627 (1967).Residence is determined by intention of parties supported by acts. Domicile, or residence as used in this rule, in a legal sense, is determined by the intention of the parties. But while intention seems to be the controlling element, it is not always conclusive unless the intention is fortified by some act or acts in support thereof. Kellner v. District Court, 127 Colo. 320, 256 P.2d 887 (1953).The issue of domicile is a compound question of fact and intention. Kellner v. District Court, 127 Colo. 320, 256 P.2d 887 (1953).A change of voting place surely is compelling evidence of the intention of making a change of residence. Kellner v. District Court, 127 Colo. 320, 256 P.2d 887 (1953).Residence may commence in another state before a definite county or precinct is fixed for a permanent residence. Kellner v. District Court, 127 Colo. 320, 256 P.2d 887 (1953).C. Other Than Natural Persons.A corporation organized under the laws of one state is a resident of that state under whose laws it was created and cannot be a resident of any other state. Rust v. Meredith Publishing Co., 122 F. Supp. 879 (D. Colo. 1954).Even if a corporation has permission to carry on a business in another state upon compliance with the laws of the other state, such permission and compliance does not make it a resident of such other state. Rust v. Meredith Publishing Co., 122 F. Supp. 879 (D. Colo. 1954).D. Status or In Rem.Under this rule, service is good if it can be said that the action is one affecting a specific “status” or is a proceeding “in rem”. Owen v. Owen, 127 Colo. 359, 257 P.2d 581 (1953).Colorado recognizes the concept “in rem” or “quasi in rem” jurisdiction acquired through attachment or garnishment of the defendant’s property within the state by providing for service of process on owners of specific property without regard to residence or domicile. A judgment which is rendered in such a case operates solely upon the res attached. George v. Lewis, 204 F. Supp. 380 (D. Colo. 1962).Service outside state for divorce is valid. Personal service outside the state when made upon a defendant in an action for divorce is valid, since an action for divorce unquestionably is an action “in rem”. Owen v. Owen, 127 Colo. 359, 257 P.2d 581 (1953).The rule is not applicable to proceedings for annulment in that matrimonial “status” is not the subject. Owen v. Owen, 127 Colo. 359, 257 P.2d 581 (1953).VIII. OTHER SERVICE.A. In General.Law reviews. For article, “Again — How Many Times?”, see 21 Dicta 62 (1944).Annotator’s note. Since section (g) of this rule is similar to § 45 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.Where no judgment “in personam” is sought by plaintiffs against a nonresident defendant, the service of summons by publication is proper. Hoff v. Armbruster, 125 Colo. 324, 244 P.2d 1069 (1952).In cases affecting specific property or in other proceedings in rem, section (g) specifically authorizes service by publication upon a nonresident. In re Ramsey, 34 Colo. App. 338, 526 P.2d 319 (1974).Proceedings by wife to charge husband’s property with alimony is a proceeding “in rem”. Where the plaintiff seeks to charge her husband’s property with her alimony, and to set aside conveyances made in fraud of her rights, the suit is a proceeding “in rem” within the meaning of this rule. Hanscom v. Hanscom, 6 Colo. App. 97, 39 P. 885 (1895).A creditor’s bill is a proceeding in rem, within the meaning of this rule. Shuck v. Quackenbush, 75 Colo. 592, 227 P. 1041 (1924).Actions “in the nature of actions in rem” may be supported by constructive service as fully as those truly “in rem”. Kern v. Wilson, 91 Colo. 355, 14 P.2d 1014 (1932).Service by publication of summons in actions “in rem” is not limited to cases involving real estate, but may apply to those involving personal property as well. Hoff v. Armbruster, 125 Colo. 324, 244 P.2d 1069 (1952).Where plaintiff fails to initiate a traditional in rem action or a quasi in rem action in a negligence suit, service by publication was improper. ReMine ex rel. Liley v. District Court, 709 P.2d 1379 (Colo. 1985).Substituted service is not available outside the state. Unlike residents, nonresidents must be served personally under the plain language of subsection (f)(1). United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992).B. By Mail.The mandatory requirements of this rule include a verified motion by either the plaintiff or counsel in his behalf for an order for service by mail, a hearing “ex parte”, and entry of an order of court directing the clerk to send a copy of process by mail to known out-of-state defendants. Jones v. Colescott, 134 Colo. 552, 307 P.2d 464 (1957).Where a plaintiff does not follow this rule and omits not one but many mandatory steps set out therein, it is error to permit a judgment to stand. Jones v. Colescott, 134 Colo. 552, 307 P.2d 464 (1957).If summons is properly addressed but not received, it will be presumed that postage was not prepaid. Where it is shown that a copy of the summons in a cause brought against a nonresident defendant was properly addressed and mailed to the defendant whose place of residence was well known, where he had resided for years, and where he was accustomed to receive his mail-matter regularly, but that the same was not received by him, it will be presumed, in the absence of proof to the contrary, that the sender omitted to prepay the postage. Morton v. Morton, 16 Colo. 358, 27 P. 718 (1891).
IX. PUBLICATION.A. In General.Law reviews. For article, “A Tax Title Quieted”, see 6 Dicta 9 (Nov. 1928). For article, “How Many Times?”, see 19 Dicta 231 (1942). For article, “Again — How Many Times?”, see 21 Dicta 62 (1944). For article, “Motion for Publication of Summons in Quiet Title Proceedings”, see 26 Dicta 182 (1949).Annotator’s note. Since section (h) of this rule is similar to § 45 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.The law requires that personal service shall be had whenever it is obtainable. Coppinger v. Coppinger, 130 Colo. 175, 274 P.2d 328 (1954); Weber v. Williams, 137 Colo. 269, 324 P.2d 365 (1958).When some evidence indicates the whereabouts of the absent party, any form of substituted service must have a reasonable chance of giving that party actual notice of the proceeding. Synan v. Haya, 15 P.3d 1117 (Colo. App. 2000).Publication must be for one of enumerated cases. To render a publication of summons effective for any purpose, it must be made in one of the enumerated cases. Hanscom v. Hanscom, 6 Colo. App. 97, 39 P. 885 (1895).The ground for such service must exist, that is, that the defendant cannot be personally served within the state. Hanshue v. Charles B. Marvin Inv. Co., 67 Colo. 189, 184 P. 289 (1919).In cases affecting specific property or in other proceedings in rem, section (h) specifically authorizes service by publication upon a nonresident. In re Ramsey, 34 Colo. App. 338, 526 P.2d 319 (1974).Service by publication in the state where property is located is not always constitutionally adequate in quasi in rem actions. Synan v. Haya, 15 P.3d 1117 (Colo. App. 2000).Section (h) controls number of publications for child custody jurisdiction act. Since § 14-13-106 (1)(d) does not specify the number of times that publication is required to effect notice under the Uniform Child Custody Jurisdiction Act, section (h) of this rule controls. In re Blair, 42 Colo. App. 270, 592 P.2d 1354 (1979).Service by publication is last resort. In case service may not be had either personally or by mailing or other substituted service, then service by publication is permissible as a final and last resort. Coppinger v. Coppinger, 130 Colo. 175, 274 P.2d 328 (1954); Weber v. Williams, 137 Colo. 269, 324 P.2d 365 (1958).Constructive service by publication is a right given by this rule. O’Rear v. Lazarus, 8 Colo. 608, 9 P. 621 (1885); Beckett v. Cuenin, 15 Colo. 281, 25 P. 167 (1890); Trowbridge v. Allen, 48 Colo. 419, 110 P. 193 (1910); Empire Ranch & Cattle Co. v. Coldren, 51 Colo. 115, 117 P. 1005 (1911); Jotter v. Marvin, 67 Colo. 548, 189 P. 19 (1919).Every material requirement in relation to service by publication must be strictly complied with to give the court jurisdiction. O’Rear v. Lazarus, 8 Colo. 608, 9 P. 621 (1885); Beckett v. Cuenin, 15 Colo. 281, 25 P. 167 (1890); Davis v. John Mouat Lumber Co., 2 Colo. App. 381, 31 P. 187 (1892); Trowbridge v. Allen, 48 Colo. 419, 110 P. 193 (1910); Empire Ranch & Cattle Co. v. Coldren, 51 Colo. 115, 117 P. 1005 (1911); Jotter v. Marvin, 67 Colo. 548, 189 P. 19 (1919); Robinson v. Clauson, 142 Colo. 434, 351 P.2d 257 (1960); Hancock v. Boulder County Public Trustee, 920 P.2d 854 (Colo. 1995).Constructive service is in derogation of the common law, making it imperative that there must be a strict compliance with every requirement of this rule; failure in this respect is fatal. Coppinger v. Coppinger, 130 Colo. 175, 274 P.2d 328 (1954); Weber v. Williams, 137 Colo. 269, 324 P.2d 365 (1958).Compliance with every condition of this rule must affirmatively appear from the record. Coppinger v. Coppinger, 130 Colo. 175, 274 P.2d 328 (1954); Weber v. Williams, 137 Colo. 269, 324 P.2d 365 (1958).But order for publication needs not precede the beginning of publication. Where plaintiff expressly advised the court of all relevant facts and circumstances, including the fact that she had already begun publication, no prejudice resulted and neither the service nor the judgment was invalid. Hancock v. Boulder County Public Trustee, 920 P.2d 854 (Colo. App. 1995).Nothing excuses omissions or insufficient statements. Beckett v. Cuenin, 15 Colo. 281, 25 P. 167 (1890); Sylph Mining & Milling Co. v. Williams, 4 Colo. App. 345, 36 P. 80 (1894); Trowbridge v. Allen, 48 Colo. 419, 110 P. 193 (1910); Empire Ranch & Cattle Co. v. Coldren, 51 Colo. 115, 117 P. 1005 (1911); Robinson v. Clauson, 142 Colo. 434, 351 P.2d 257 (1960).Courts are jealous of abuses in the application thereof. While experience demonstrates that this mode of giving a court jurisdiction of the person is necessary in many instances, yet courts are jealous of abuses in the application thereof; hence, they tolerate the omission of no material step required by law in connection therewith. Israel v. Arthur, 7 Colo. 5, 1 P. 438 (1883).Where a plaintiff does not follow this rule and omits not one but many mandatory steps set out therein, it is error to permit a judgment to stand. Jones v. Colescott, 134 Colo. 552, 307 P.2d 464 (1957).This necessity to strictly follow the rule has long been established. O’Rear v. Lazarus, 8 Colo. 608, 9 P. 621 (1885); Davis v. John Mouat Lumber Co., 2 Colo. App. 381, 31 P. 187 (1892).If rule is not complied with, the service may be collaterally attacked. In obtaining constructive service of process by publication, a compliance with the method pointed out by this rule must be observed, and if the record being offered in evidence shows affirmatively that its provisions relating to service by publication were not complied with, it may be attacked in a collateral proceeding. Trowbridge v. Allen, 48 Colo. 419, 110 P. 193 (1910).The recital in a judgment that service was complied with does not change this rule. Trowbridge v. Allen, 48 Colo. 419, 110 P. 193 (1910).The motion and affidavit upon which the order for constructive service is entered takes precedence over recitals in a judgment. Coppinger v. Coppinger, 130 Colo. 175, 274 P.2d 328 (1954); Weber v. Williams, 137 Colo. 269, 324 P.2d 365 (1958).The authorities are in conflict as to whether the constructive service may be presumed regular where record is silent. Israel v. Arthur, 7 Colo. 5, 1 P. 438 (1883).Rule seems to be that record must show. Where reliance is placed wholly upon service by publication, the rule seems to be that the record must affirmatively show all the essential jurisdictional facts. This rule is not entirely undisputed, but it is sanctioned by the weight of authority and is founded upon excellent reason. O’Rear v. Lazarus, 8 Colo. 608, 9 P. 621 (1885).If record is not silent no presumption can be indulged in. Where the record is not silent on this subject and where it affirmatively appears therein that the court did not have jurisdiction of the person, no such presumption can be indulged in. Clayton v. Clayton, 4 Colo. 410 (1878); Israel v. Arthur, 7 Colo. 5, 1 P. 438 (1883).Errors in the service of summons by publication may be waived by the appearance and answer of defendant to the merits. New York & B. M. Co. v. Gill, 7 Colo. 100, 2 P. 5 (1883).Applied in George v. Lewis, 228 F. Supp. 725 (D. Colo. 1964).B. On Verified Motion.Under this rule a verified motion must state the facts authorizing the service and show the efforts, if any, that have been made to make personal service within the state, and it must name the known defendants who are outside the state and their last known addresses, or that the addresses are unknown. Jones v. Colescott, 134 Colo. 552, 307 P.2d 464 (1957).In the motion and affidavit, the applicant must be forthright and explicit in setting forth all of the pertinent facts in order that the court may have before it the complete picture to enable correct evaluation and determination whether service by publication is justified or required under the circumstances. Coppinger v. Coppinger, 130 Colo. 175, 274 P.2d 328 (1954); Weber v. Williams, 137 Colo. 269, 324 P.2d 365 (1958); Hancock v. Boulder County Public Trustee, 920 P.2d 854 (Colo. App. 1995).The validity of constructive service is dependent upon the good faith of the plaintiff and the accuracy of the statements contained in his verified motion upon which the order for publication is based. Coppinger v. Coppinger, 130 Colo. 175, 274 P.2d 328 (1954); Weber v. Williams, 137 Colo. 269, 324 P.2d 365 (1958); Hancock v. Boulder County Public Trustee, 920 P.2d 854 (Colo. App. 1995).If plaintiff in any way misrepresents the facts, either actively or merely by failure to reveal them, then it follows as a matter of course that an order directing constructive service of process by publication is invalid. Coppinger v. Coppinger, 130 Colo. 175, 274 P.2d 328 (1954); Weber v. Williams, 137 Colo. 269, 324 P.2d 365 (1958).Anything short of the full disclosure of all known pertinent facts is a fraud upon the court and renders void any decree thereafter entered. Coppinger v. Coppinger, 130 Colo. 175, 274 P.2d 328 (1954); Weber v. Williams, 137 Colo. 269, 324 P.2d 365 (1958).To simply go through the form of legalism without a fair disclosure of existing known facts is of no avail. Coppinger v. Coppinger, 130 Colo. 175, 274 P.2d 328 (1954); Weber v. Williams, 137 Colo. 269, 324 P.2d 365 (1958).Where the plaintiff knows the address of, and how to reach, the defendant in another jurisdiction so as to permit personal service of summons upon him, but instead resorts to publication in a newspaper defendant would be unlikely to see, such conduct is repugnant to equity and constitutes fraud nullifying a decree which is obtained by reason of it. Coppinger v. Coppinger, 130 Colo. 175, 274 P.2d 328 (1954).Where it appears from the affidavit for publication that the affiant, after due diligence, is unable to learn the whereabouts, residence, or post-office address of a defendant, coupled with further statements that he either resides out of the state, or has departed therefrom without the intention of returning, or is concealing himself to avoid the service of process, it logically follows that the defendant is either a nonresident of the state, has departed from the state without the intention of returning, or is concealing himself to avoid the service of process. Hanshue v. Marvin Inv. Co., 67 Colo. 189, 184 P. 289 (1919).To obtain an order for service by publication an affidavit to that end must show, among other things, that the defendant resides out of the state, or that he has departed from the state without intention of returning, or that he is concealing himself to avoid service of process; it must also give his post-office address if known, or if unknown show that fact. Robinson v. Clauson, 142 Colo. 434, 351 P.2d 257 (1960).Verified motion for service by publication held sufficient. Hancock v. Boulder County Public Trustee, 920 P.2d 854 (Colo. App. 1995).Where a verified motion filed for publication of a summons contains no statement that defendant is a nonresident of the state, that he has departed the state without intention of returning, or that he is concealing himself to avoid service of process, and it is recited in the motion that defendant’s whereabouts are unknown, but there is no statement that he could not “be served by personal service in the state”, then, in the absence of this mandatory requirement, the motion is fatally defective, and the court is without jurisdiction to proceed. Sine v. Stout, 119 Colo. 254, 203 P.2d 495 (1949).Constructive service of summons founded upon an affidavit which fails to comply with this rule is without effect. Empire Ranch & Cattle Co. v. Gibson, 22 Colo. App. 617, 126 P. 1103 (1912).Such an affidavit is essential. An affidavit by a person authorized by law to make the same and containing the statements required by this rule is an essential prerequisite to give the court jurisdiction to proceed. Trowbridge v. Allen, 48 Colo. 419, 110 P. 193 (1910); Empire Ranch & Cattle Co. v. Coldren, 51 Colo. 115, 117 P. 1005 (1911); Millage v. Richards, 52 Colo. 512, 122 P. 788 (1912).Since this rule requires an affidavit to matters involving legal opinion and conclusions of law and fact, it contemplates that such an affidavit will be made upon the only basis on which such opinions and conclusions can be reached. Jotter v. Marvin, 67 Colo. 548, 189 P. 19 (1920).Affiant’s knowledge of matters stated in his affidavit must of necessity frequently rest upon information derived from others, and where this is so it is generally sufficient to aver upon information and belief that such matters are true; in such cases belief is to be considered an absolute term, and perjury may be assigned on such affidavit, if false. Jotter v. Marvin, 67 Colo. 548, 189 P. 19 (1920).The chief test of the sufficiency of the affidavit is whether it is so clear and certain that an indictment for perjury may be sustained on it if false. Jotter v. Marvin, 67 Colo. 548, 189 P. 19 (1920).Where the averment made applies to many defendants, both individual and corporate, taken together with the failure to give the post-office addresses of any of the defendants or to state that they are unknown, strongly suggests an effort to conceal all, rather than to furnish any, information by which notice of the suit would possibly reach any of the defendants. Gibson v. Wagner, 25 Colo. App. 129, 136 P. 93 (1913).To state that the residence is unknown is not in strict compliance with this rule which requires an affidavit for publication of summons to state that the post-office address is unknown. Robinson v. Clauson, 142 Colo. 434, 351 P.2d 257 (1960).Where an affidavit for the publication of the summons states that certain defendants named, “either reside out of the state or have departed therefrom, or concealed themselves to avoid process, and that their post-office address is unknown to affiant” is a compliance with this rule. Hanshue v. Marvin Inv. Co., 67 Colo. 189, 184 P. 289 (1919).Where the affidavit sets forth that the officers of a company “reside out of the state”, the affidavit is sufficient. Jotter v. Marvin Inv. Co., 67 Colo. 555, 189 P. 22 (1920).C. The Order.The object of the publication of summons is to give notice to the defendant of a suit pending and of its purpose. Webster v. Heginbotham, 23 Colo. App. 229, 129 P. 569 (1913), aff’d, 58 Colo. 351, 145 P. 1165 (1915).Where the judgment is found upon substituted service of summons the defendant’s name must be correctly given in the notice, although the doctrine of “idem sonans” applies to records, such as judgments. Robinson v. Clauson, 142 Colo. 434, 351 P.2d 257 (1960).The failure of the publication notice to contain the forename or Christian name of the party is ordinarily held to prevent a court from obtaining jurisdiction over him. Robinson v. Clauson, 142 Colo. 434, 351 P.2d 257 (1960).Initial letters only are sufficient. Where the papers do not give the full Christian names of all the parties, but give the initial letters thereof only, this is sufficient. Webster v. Heginbotham, 23 Colo. App. 229, 129 P. 569 (1913), aff’d, 58 Colo. 351, 145 P. 1165 (1915).It must be evident to every person that a published notice, using the name by which the defendant is commonly known in the community, will as readily attract his attention as if his real name were used, particularly where the initials are the same, and that the use of the name as commonly known will much more readily and probably attract the attention of his acquaintances and friends by whom information might be communicated to him than if the publication had been by his real name by which he was not commonly known. Webster v. Heginbotham, 23 Colo. App. 229, 129 P. 569 (1913), aff’d, 58 Colo. 351, 145 P. 1165 (1915).Evidence of identity must be made. Upon mere publication of the summons in which one is named as defendant, those claiming under a similar name are not affected unless there is evidence of the identity in fact of former name with the latter one. Bloomer v. Cristler, 22 Colo. App. 238, 123 P. 966 (1912).D. Period of Time.A delay of five months between the return of the original summons by the sheriff and the making of the order of publication does not invalidate the order of publication nor render the service void. Richardson v. Wortman, 34 Colo. 374, 83 P. 381 (1905).Publication must be for four weeks. Jones v. Colescott, 134 Colo. 552, 307 P.2d 464 (1957).The clerk must within 15 days after the order of publication mail a copy of the process to each of the persons whose addresses are known. Jones v. Colescott, 134 Colo. 552, 307 P.2d 464 (1957).Service is complete on last day of publication. By presumption of law a defendant who is served with summons by publication is charged with knowledge that service will be complete on the day of the last publication. Netland v. Baughman, 114 Colo. 148, 162 P.2d 601 (1945).Default judgment entered prior to time allowed is error. After constructive service by publication, a judgment by default entered before the expiration of the time allowed to plead or answer is premature, and in a direct proceeding to review a judgment shown to have been so entered prematurely, a reversal for error must be granted. Netland v. Baughman, 114 Colo. 148, 162 P.2d 601 (1945).X. MANNER OF PROOF.Annotator’s note. Since section (i) of this rule is similar to § 49 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.The return serves no purpose except to show to the court that there has been service and to make a record thereof, so that the court’s jurisdiction will appear forever. Sawdey v. Pagosa Lumber Co., 78 Colo. 185, 240 P. 334 (1925).It is the service of summons that confers jurisdiction over the person of a defendant, not the return. Sawdey v. Pagosa Lumber Co., 78 Colo. 185, 240 P. 334 (1925).The return of service is not aided by presumption. Venner v. Denver Union Water Co., 15 Colo. App. 495, 63 P. 1061 (1900).A sheriff’s return of service is prima facie evidence of the facts recited therein. Gibbs v. Ison, 76 Colo. 240, 230 P. 784 (1924); Neher v. District Court, 161 Colo. 445, 422 P.2d 627 (1967).The prima facie evidence represented by a return of service must be overcome by clear and convincing proof. Stegall v. Stegall, 756 P.2d 384 (Colo. App. 1987).Showing may be sufficient to overcome prima facie showing. Where there is a showing, even though not as detailed as may be desirable, which nonetheless is sufficient as a matter of law to overcome the prima facie showing made by a sheriff’s return, the service must therefore be set aside. Neher v. District Court, 161 Colo. 445, 422 P.2d 627 (1967).An insufficient return should be amended. It is the duty of a person serving a summons to amend his return, by leave of court, as soon as he knows that it is erroneous or insufficient. Sawdey v. Pagosa Lumber Co., 78 Colo. 185, 240 P. 334 (1925).An erroneous return does not detract from a valid service. Clark v. National Adjusters, Inc., 140 Colo. 593, 348 P.2d 370 (1959).Service of summons by acknowledgment is sufficient and gives the court full jurisdiction. Wilson v. Carroll, 80 Colo. 234, 250 P. 555 (1926).It is the voluntary return that constitutes valid service. It is not alone the delivery of the summons to defendant, but the voluntary return thereof to plaintiff with her written acknowledgment thereon which constitutes valid and sufficient service. Seeley v. Taylor, 17 Colo. 70, 28 P. 461 (1891), 28 P. 723 (1892).It may be voluntary though accompanied by bitter reproaches. That the writings on the summons constituting an acceptance of service are accompanied by bitter reproaches and severe denunciations of plaintiff by defendant does not change the fact that he received copies of the summons and voluntarily acknowledged and returned the same to plaintiff with full knowledge of the nature and purpose of the action which the plaintiff had brought against him. Seeley v. Taylor, 17 Colo. 70, 28 P. 461 (1891), 28 P. 723 (1892).Even if defendant says in one part of the indorsement that he did not know the meaning of the summons, it is still good where his whole language taken together clearly shows that he did know and that he returned them to plaintiff that he might secure whatever earthly law might do for him. Seeley v. Taylor, 17 Colo. 70, 28 P. 461 (1891), 28 P. 723 (1892).Where no appeal is taken from a trial judge’s order in which he ruled adversely on a preliminary motion questioning under this rule jurisdiction, the right has been waived. Wells Aircraft Parts Co. v. Allan J. Kayser Co., 118 Colo. 197, 194 P.2d 326 (1947).XI. AMENDMENT.A summons is subject to amendment by the court. Erdman v. Hardesty, 14 Colo. App. 395, 60 P. 360 (1900) (decided under § 41 of the former Code of Civil Procedure, which was replaced by the Rules of Civil Procedure in 1941).Originals not to be treated as sacrosanct. As with most pleadings and writings in the nature of pleadings, the purpose of justice is best served not by treating originals as sacrosanct, but rather by permitting the parties to ensure that the issues, as ultimately framed, represent the parties’ true positions. Brown v. Schumann, 40 Colo. App. 336, 575 P.2d 443 (1978).
Topics: Process Service | No Comments »
California Foreclosure Process Service Laws
By admin | April 9, 2010
CODE OF CIVIL PROCEDURE SECTION 413.10-413.40
413.10. Except as otherwise provided by statute, a summons shall be
served on a person:
(a) Within this state, as provided in this chapter.
(b) Outside this state but within the United States, as provided
in this chapter or as prescribed by the law of the place where the
person is served.
(c) Outside the United States, as provided in this chapter or as
directed by the court in which the action is pending, or, if the
court before or after service finds that the service is reasonably
calculated to give actual notice, as prescribed by the law of the
place where the person is served or as directed by the foreign
authority in response to a letter rogatory. These rules are subject
to the provisions of the Convention on the “Service Abroad of
Judicial and Extrajudicial Documents” in Civil or Commercial Matters
(Hague Service Convention).
413.20. If a summons is served by mail pursuant to this chapter,
the provisions of Section 1013 that extend the time for exercising a
right or doing an act shall not extend any time specified in this
title.
413.30. Where no provision is made in this chapter or other law for
the service of summons, the court in which the action is pending may
direct that summons be served in a manner which is reasonably
calculated to give actual notice to the party to be served and that
proof of such service be made as prescribed by the court.
413.40. Any service of summons which complies with the provisions
of this chapter shall not be rendered invalid or ineffective because
it was made by a person in violation of Chapter 16 (commencing with
Section 22350) of Division 8 of the Business and Professions Code
414.10. A summons may be served by any person who is at least 18
years of age and not a party to the action.
415.10. A summons may be served by personal delivery of a copy of
the summons and of the complaint to the person to be served. Service
of a summons in this manner is deemed complete at the time of such
delivery.
The date upon which personal delivery is made shall be entered on
or affixed to the face of the copy of the summons at the time of its
delivery. However, service of a summons without such date shall be
valid and effective.
415.20. (a) In lieu of personal delivery of a copy of the summons
and of the complaint to the person to be served as specified in
Section 416.10, 416.20, 416. 30, 416.40, or 416.50, a summons may be
served by leaving a copy of the summons and of the complaint during
usual office hours in his or her office with the person who is
apparently in charge thereof, and by thereafter mailing a copy of the
summons and of the complaint (by first-class mail, postage prepaid)
to the person to be served at the place where a copy of the summons
and of the complaint were left. Service of a summons in this manner
is deemed complete on the 10th day after such mailing.
(b) If a copy of the summons and of the complaint cannot with
reasonable diligence be personally delivered to the person to be
served as specified in Section 416.60, 416.70, 416.80, or 416.90, a
summons may be served by leaving a copy of the summons and of the
complaint at such person’s dwelling house, usual place of abode,
usual place of business, or usual mailing address other than a United
States Postal Service post office box, in the presence of a
competent member of the household or a person apparently in charge of
his or her office, place of business, or usual mailing address other
than a United States Postal Service post office box, at least 18
years of age, who shall be informed of the contents thereof, and by
thereafter mailing a copy of the summons and of the complaint (by
first-class mail, postage prepaid) to the person to be served at the
place where a copy of the summons and of the complaint were left.
Service of a summons in this manner is deemed complete on the 10th
day after the mailing.
415.21. (a) Notwithstanding any other provision of law, any person
shall be granted access to a gated community for a reasonable period
of time for the purpose of performing lawful service of process, upon
identifying to the guard the person or persons to be served, and
upon displaying a current driver’s license or other identification,
and one of the following:
(1) A badge or other confirmation that the individual is acting in
his or her capacity as a representative of a county sheriff or
marshal.
(2) Evidence of current registration as a process server pursuant
to Chapter 16 (commencing with Section 22350) of Division 8 of the
Business and Professions Code.
(b) This section shall only apply to a gated community which is
staffed at the time service of process is attempted by a guard or
other security personnel assigned to control access to the community.
415.30. (a) A summons may be served by mail as provided in this
section. A copy of the summons and of the complaint shall be mailed
(by first-class mail or airmail, postage prepaid) to the person to be
served, together with two copies of the notice and acknowledgment
provided for in subdivision (b) and a return envelope, postage
prepaid, addressed to the sender.
(b) The notice specified in subdivision (a) shall be in
substantially the following form:
(Title of court and cause, with action number, to be inserted
by the sender prior to mailing)
NOTICE To: (Here state the name of the person to be served.)
This summons is served pursuant to Section 415.30 of the
California Code of Civil Procedure. Failure to complete this form
and return it to the sender within 20 days may subject you (or the
party on whose behalf you are being served) to liability for the
payment of any expenses incurred in serving a summons upon you in any
other manner permitted by law. If you are served on behalf of a
corporation, unincorporated association (including a partnership), or
other entity, this form must be signed in the name of such entity by
you or by a person authorized to receive service of process on
behalf of such entity. In all other cases, this form must be signed
by you personally or by a person authorized by you to acknowledge
receipt of summons. Section 415.30 provides that this summons is
deemed served on the date of execution of an acknowledgment of
receipt of summons. _______________Signature of sender
ACKNOWLEDGMENT OF RECEIPT OF SUMMONS
This acknowledges receipt on (insert date) of a copy of the
summons and of the complaint at (insert address). Date: (Date
this acknowledgement is executed) Signature of
person acknowledging receipt, with title if acknowledgment is made on
behalf of another person
(c) Service of a summons pursuant to this section is deemed
complete on the date a written acknowledgement of receipt of summons
is executed, if such acknowledgement thereafter is returned to the
sender.
(d) If the person to whom a copy of the summons and of the
complaint are mailed pursuant to this section fails to complete and
return the acknowledgement form set forth in subdivision (b) within
20 days from the date of such mailing, the party to whom the summons
was mailed shall be liable for reasonable expenses thereafter
incurred in serving or attempting to serve the party by another
method permitted by this chapter, and, except for good cause shown,
the court in which the action is pending, upon motion, with or
without notice, shall award the party such expenses whether or not he
is otherwise entitled to recover his costs in the action.
(e) A notice or acknowledgment of receipt in form approved by the
Judicial Council is deemed to comply with this section.
415.40. A summons may be served on a person outside this state in
any manner provided by this article or by sending a copy of the
summons and of the complaint to the person to be served by
first-class mail, postage prepaid, requiring a return receipt.
Service of a summons by this form of mail is deemed complete on the
10th day after such mailing.
415.45. (a) A summons in an action for unlawful detainer of real
property may be served by posting if upon affidavit it appears to the
satisfaction of the court in which the action is pending that the
party to be served cannot with reasonable diligence be served in any
manner specified in this article other than publication and that:
(1) A cause of action exists against the party upon whom service
is to be made or he is a necessary or proper party to the action; or
(2) The party to be served has or claims an interest in real
property in this state that is subject to the jurisdiction of the
court or the relief demanded in the action consists wholly or in part
in excluding such party from any interest in such property.
(b) The court shall order the summons to be posted on the premises
in a manner most likely to give actual notice to the party to be
served and direct that a copy of the summons and of the complaint be
forthwith mailed by certified mail to such party at his last known
address.
(c) Service of summons in this manner is deemed complete on the
10th day after posting and mailing.
(d) Notwithstanding an order for posting of the summons, a summons
may be served in any other manner authorized by this article, except
publication, in which event such service shall supersede any posted
summons.
415.46. (a) In addition to the service of a summons and complaint
in an action for unlawful detainer upon a tenant and subtenant, if
any, as prescribed by this article, a prejudgment claim of right to
possession may also be served on any person who appears to be or who
may claim to have occupied the premises at the time of the filing of
the action. Service upon occupants shall be made pursuant to
subdivision (c) by serving a copy of a prejudgment claim of right to
possession, as specified in subdivision (f), attached to a copy of
the summons and complaint at the same time service is made upon the
tenant and subtenant, if any.
(b) Service of the prejudgment claim of right to possession in
this manner shall be effected by a marshal, sheriff, or registered
process server.
(c) When serving the summons and complaint upon a tenant and
subtenant, if any, the marshal, sheriff, or registered process server
shall make a reasonably diligent effort to ascertain whether there
are other adult occupants of the premises who are not named in the
summons and complaint by inquiring of the person or persons who are
being personally served, or any person of suitable age and discretion
who appears to reside upon the premises, whether there are other
occupants of the premises.
If the identity of such an occupant is disclosed to the officer or
process server and the occupant is present at the premises, the
officer or process server shall serve that occupant with a copy of
the prejudgment claim of right to possession attached to a copy of
the summons and complaint. If personal service cannot be made upon
that occupant at that time, service may be effected by (1) leaving a
copy of a prejudgment claim of right to possession attached to a copy
of the summons and complaint addressed to that occupant with a
person of suitable age and discretion at the premises, (2) affixing
the same so that it is not readily removable in a conspicuous place
on the premises in a manner most likely to give actual notice to that
occupant, and (3) sending the same addressed to that occupant by
first-class mail.
In addition to the service on an identified occupant, or if no
occupant is disclosed to the officer or process server, or if
substituted service is made upon the tenant and subtenant, if any,
the officer or process server shall serve a prejudgment claim of
right to possession for all other persons who may claim to occupy the
premises at the time of the filing of the action by (1) leaving a
copy of a prejudgment claim of right to possession attached to a copy
of the summons and complaint at the premises at the same time
service is made upon the tenant and subtenant, if any, (2) affixing
the same so that it is not readily removable in a conspicuous place
on the premises so that it is likely to give actual notice to an
occupant, and (3) sending the same addressed to “all occupants in
care of the named tenant” to the premises by first-class mail.
The person serving process shall state the date of service on the
prejudgment claim of right to possession form. However, the absence
of the date of service on the prejudgment claim of right to
possession does not invalidate the claim.
(d) Proof of service under this section shall be filed with the
court and shall include a statement that service was made pursuant to
this section. Service on occupants in accordance with this section
shall not alter or affect service upon the tenant or subtenant, if
any.
(e) If an owner or his or her agent has directed and obtained
service of a prejudgment claim of right to possession in accordance
with this section, no occupant of the premises, whether or not such
occupant is named in the judgment for possession, may object to the
enforcement of that judgment as prescribed in Section 1174.3.
(f) The prejudgment claim of right to possession shall be made on
the following form:
415.47. (a) Where the lessee has given the lessor written notice of
the lessee’s intent not to abandon leased real property as provided
in Section 1951.3 of the Civil Code, the summons in an action for
unlawful detainer of the real property may be served on the lessee by
certified mail, postage prepaid, addressed to the lessee at the
address stated in the lessee’s notice of intent not to abandon if
such summons is deposited in the mail within 60 days from the date
the lessee’s notice of intent not to abandon is received by the
lessor. Service in this manner is deemed completed on the 10th day
after such mailing.
(b) Where the lessee has given the lessor written notice of the
lessee’s intent not to abandon leased real property as provided in
Section 1951.3 of the Civil Code, but failed to include in such
notice an address at which the lessee may be served by certified mail
in any action for unlawful detainer of the real property, the
summons in an action for unlawful detainer of the real property may
be served on the lessee by certified mail, postage prepaid, addressed
to the lessee at (1) the same address or addresses to which the
lessor’s notice of belief of abandonment was addressed if that notice
was given by mail or (2) the address of the real property if the
lessor’s notice of belief of abandonment was personally served on the
lessee. Service may not be made pursuant to this subdivision unless
the summons is deposited in the mail within 60 days from the date
the lessee’s notice of intent not to abandon is received by the
lessor. Service in the manner authorized by this subdivision is
deemed completed on the 10th day after such mailing.
(c) This section provides an alternative method of service on the
lessee and does not preclude service in any other manner authorized
by this chapter.
415.50. (a) A summons may be served by publication if upon
affidavit it appears to the satisfaction of the court in which the
action is pending that the party to be served cannot with reasonable
diligence be served in another manner specified in this article and
that either:
(1) A cause of action exists against the party upon whom service
is to be made or he or she is a necessary or proper party to the
action.
(2) The party to be served has or claims an interest in real or
personal property in this state that is subject to the jurisdiction
of the court or the relief demanded in the action consists wholly or
in part in excluding the party from any interest in the property.
(b) The court shall order the summons to be published in a named
newspaper, published in this state, that is most likely to give
actual notice to the party to be served and direct that a copy of the
summons, the complaint, and the order for publication be forthwith
mailed to the party if his or her address is ascertained before
expiration of the time prescribed for publication of the summons.
Except as otherwise provided by statute, the publication shall be
made as provided by Section 6064 of the Government Code unless the
court, in its discretion, orders publication for a longer period.
(c) Service of a summons in this manner is deemed complete as
provided in Section 6064 of the Government Code.
(d) Notwithstanding an order for publication of the summons, a
summons may be served in another manner authorized by this chapter,
in which event the service shall supersede any published summons.
(e) As a condition of establishing that the party to be served
cannot with reasonable diligence be served in another manner
specified in this article, the court may not require that a search be
conducted of public databases where access by a registered process
server to residential addresses is prohibited by law or by published
policy of the agency providing the database, including, but not
limited to, voter registration rolls and records of the Department of
Motor Vehicles.
416.10. A summons may be served on a corporation by delivering a
copy of the summons and of the complaint:
(a) To the person designated as agent for service of process as
provided by any provision in Section 202, 1502, 2105 or 2107 of the
Corporations Code (or Sections 3301 to 3303, inclusive, or Sections
6500 to 6504, inclusive, of the Corporations Code as in effect on
December 31, 1976 with respect to corporations to which they remain
applicable);
(b) To the president or other head of the corporation, a vice
president, a secretary or assistant secretary, a treasurer or
assistant treasurer, a general manager, or a person authorized by the
corporation to receive service of process;
(c) If the corporation is a bank, to a cashier or assistant
cashier or to a person specified in subdivision (a) or (b); or
(d) When authorized by any provision in Section 1701, 1702, 2110
or 2111 of the Corporations Code (or Sections 3301 to 3303,
inclusive, or Sections 6500 to 6504, inclusive, of the Corporations
Code as in effect on December 31, 1976, with respect to corporations
to which they remain applicable), as provided by such provision.
416.20. A summons may be served on a corporation that has forfeited
its charter or right to do business, or has dissolved, by delivering
a copy of the summons and of the complaint:
(a) To a person who is a trustee of the corporation and of its
stockholders or members; or
(b) When authorized by any provision in Sections 2011 or 2114 of
the Corporations Code (or Sections 3301 to 3303, inclusive, or
Sections 6500 to 6504, inclusive, of the Corporations Code as in
effect on December 31, 1976, with respect to corporations to which
they remain applicable), as provided by such provision.
416.30. A summons may be served on a joint stock company or
association by delivering a copy of the summons and of the complaint
as provided by Section 416.10 or 416.20.
416.40. A summons may be served on an unincorporated association
(including a partnership) by delivering a copy of the summons and of
the complaint:
(a) If the association is a general or limited partnership, to the
person designated as agent for service of process as provided in
Section 24003 of the Corporations Code or to a general partner or the
general manager of the partnership;
(b) If the association is not a general or limited partnership, to
the person designated as agent for service of process as provided in
Section 24003 of the Corporations Code or to the president or other
head of the association, a vice president, a secretary or assistant
secretary, a treasurer or assistant treasurer, a general manager, or
a person authorized by the association to receive service of process;
(c) When authorized by Section 15700 or 24007 of the Corporations
Code, as provided by the applicable section.
416.50. (a) A summons may be served on a public entity by
delivering a copy of the summons and of the complaint to the clerk,
secretary, president, presiding officer, or other head of its
governing body.
(b) As used in this section, “public entity” includes the state
and any office, department, division, bureau, board, commission, or
agency of the state, the Regents of the University of California, a
county, city, district, public authority, public agency, and any
other political subdivision or public corporation in this state.
416.60. A summons may be served on a minor by delivering a copy of
the summons and of the complaint to his parent, guardian,
conservator, or similar fiduciary, or, if no such person can be found
with reasonable diligence, to any person having the care or control
of such minor or with whom he resides or by whom he is employed, and
to the minor if he is at least 12 years of age.
416.70. A summons may be served on a person (other than a minor)
for whom a guardian, conservator, or similar fiduciary has been
appointed by delivering a copy of the summons and of the complaint to
his guardian, conservator, or similar fiduciary and to such person,
but, for good cause shown, the court in which the action is pending
may dispense with delivery to such person.
416.80. When authorized by Section 11 of the Elections Code, a
summons may be served as provided by that section.
416.90. A summons may be served on a person not otherwise specified
in this article by delivering a copy of the summons and of the
complaint to such person or to a person authorized by him to receive
service of process.
417.10. Proof that a summons was served on a person within this
state shall be made:
(a) If served under Section 415.10, 415.20, or 415.30, by the
affidavit of the person making such service showing the time, place,
and manner of service and facts showing that such service was made in
accordance with this chapter. Such affidavit shall recite or in
other manner show the name of the person to whom a copy of the
summons and of the complaint were delivered, and, if appropriate, his
title or the capacity in which he is served, and that the notice
required by Section 412.30 appeared on the copy of the summons
served, if in fact it did appear.
If service is made by mail pursuant to Section 415.30, proof of
service shall include the acknowledgement of receipt of summons in
the form provided by that section or other written acknowledgment of
receipt of summons satisfactory to the court.
(b) If served by publication pursuant to Section 415.50, by the
affidavit of the publisher or printer, or his foreman or principal
clerk, showing the time and place of publication, and an affidavit
showing the time and place a copy of the summons and of the complaint
were mailed to the party to be served, if in fact mailed.
(c) If served pursuant to another statute of this state, in the
manner prescribed by such statute or, if no manner is prescribed, in
the manner prescribed by this section for proof of a similar manner
of service.
(d) By the written admission of the party.
(e) If served by posting pursuant to Section 415.45, by the
affidavit of the person who posted the premises, showing the time and
place of posting, and an affidavit showing the time and place copies
of the summons and of the complaint were mailed to the party to be
served, if in fact mailed.
(f) All proof of personal service shall be made on a form adopted
by the Judicial Council.
417.20. Proof that a summons was served on a person outside this
state shall be made:
(a) If served in a manner specified in a statute of this state, as
prescribed by Section 417.10, and if service is made by mail
pursuant to Section 415.40, proof of service shall include evidence
satisfactory to the court establishing actual delivery to the person
to be served, by a signed return receipt or other evidence;
(b) In the manner prescribed by the court order pursuant to which
the service is made;
(c) Subject to any additional requirements that may be imposed by
the court in which the action is pending, in the manner prescribed by
the law of the place where the person is served for proof of service
in an action in its courts of general jurisdiction; or
(d) By the written admission of the party.
(e) If served by posting pursuant to Section 415.45, by the
affidavit of the person who posted the premises, showing the time and
place of posting, and an affidavit showing the time and place copies
of the summons and of the complaint were mailed to the party to be
served, if in fact mailed.
417.30. (a) After a summons has been served on a person, the
summons must be returned together with proof of service as provided
in Section 417.10 or 417.20, unless the defendant has previously made
a general appearance.
(b) If a summons is lost after service has been made but before it
is returned, an affidavit of the person who made the service showing
the time, place, and manner of service and facts showing that such
service was made in accordance with this chapter may be returned with
the same effect as if the summons itself were returned.
417.40. Any proof of service which is signed by a person registered
under Chapter 16 (commencing with Section 22350) of Division 8 of
the Business and Professions Code or his employee or independent
contractor shall indicate the county in which he is registered and
the number assigned to him pursuant to Section 22355 of the Business
and Professions Code.
Topics: Process Service | No Comments »
Can I still be foreclosed on if I avoid the process server?
By admin | April 9, 2010
After Lis-Pendens has been served, a process server is generally sent to serve the homeowner with a copy of the complaint that has been filed. Â In some locations, the process server will be a constable or a sheriff’s deputy.
In some very rare situations, it is possible to delay a foreclosure by avoiding a process server. Â Before using this as a strategy, be sure to know your local laws. Â That being said, in most states it is possible for the foreclosure process to continue, with service taking the form of your summons being posted to your door, or through some alternative method of service, such as publication.
If you end up being served and don’t know about it, you may be in a worse situation for avoiding foreclosure than you would have been if you simply accepted the summons. Â If you are embarrased about being served, generally your attorney will be able to receive the summons for you.
credit:Â xJasonRogersx
Topics: Avoid Foreclosure | No Comments »
Judicial Foreclosure Compared to Non-Judicial Foreclosures
By admin | April 9, 2010
Every US state handles foreclosure in a different way, but most fall into two general categories: those that provide for judicial foreclosures and those which do not.
Generally speaking, a judicial foreclosure is processed through the state’s court system after a lender files a complaint as well as records a notice of Lis Pendens (latin for suit pending). Â Once a notice is filed, the foreclosure process is formally considered to have begun. Â This process takes some time, during which the homeowner generally retains possession of the property and can still potentially sell or refinance.
Properties are considered to be in a status known as preforeclosure starting with the filing date of lis pendens until the property is finally sold at auction. Â This period will very in length depending on the state, but generally lasts at least 3 months and can take a year or more.
The lender’s complaint states the amount of debt, its status, and the cause by which the lender deserves to be permitted to foreclose and take possession of the property.
Generally the homeowner will be served a notice of the complaint, though the manner in which this is served can vary.
Topics: Uncategorized | 1 Comment »