Service of process is an essential, basic tool for any litigator but not one to be treated lightly. Heightened judicial scrutiny, uncooperative defendants, and increasing concern for consumer rights have combined to complicate matters, giving attorneys more reasons than ever to get it right the first time.
Service of process, long an established step in commencing litigation, is showing greater complexity for process servers, courts, and attorneys alike. The validity of service has come under increased scrutiny; defendants increasingly devise creative schemes to evade service; and, at least in Minnesota, what constitutes valid service has broadened. Together these factors pull and tug at the process service industry, arguably necessitating closer review by attorneys of affidavits and proofs of service, whether these are served by a sheriff or process server.
Well-publicized issues of service fraud in New York, Colorado, and Minnesota; “robo-signing” incidents in the mortgage industry; broad media coverage of debtors’ rights; and the formation of the Consumer Finance Protection Bureau have heightened examination of service of process to ensure that defendants have received proper notice. Concurrently, a recent Minnesota Court of Appeals opinion has expanded the latitude given to process servers, particularly in those instances when the defendant is uncooperative.
Service of process and its related rules are a very small part of the legal landscape. Nonetheless, personal service of process is a frequently scrutinized step in the evolution of a lawsuit. Insufficiency of process is a common defense alleged in an answer to a complaint. Whether or not a party has been properly served is a crucial factor in the commencement of an action, especially in cases involving statutes of limitations. Without sufficient service of process, a district court has no jurisdiction over a defendant.1
When service is required, attorneys typically assume the server will go to the defendant’s residence and ring the doorbell, the defendant will answer, admit their identity, and willingly accept the papers in hand. In fact, this is a very good assumption; we at Metro Legal Services accomplish service approximately 85 percent of the time in one attempt. Although hiding in bushes, wearing costumes, jumping on hoods of cars, secreting papers in pizza boxes, and fist fights are often cited as routine events for a process server, these are rarely rooted in reality or practice. That isn’t to say that most services are pleasant: Being served with a lawsuit can be an angering and frustrating experience and often defendants focus their displeasure on the process server—yes, our colloquial mantra is “Don’t shoot the messenger!”
Uncooperative defendants have become more common in the wake of the mortgage foreclosure crisis that plagued the country between 2004 and 2012. The foreclosure crisis spawned a cottage industry of foreclosure consulting services that counsel people at risk of losing their homes in methods of delaying or thwarting the efforts of the foreclosing lender, including how to evade being served with notice of the foreclosure sale. In consequence, nearly one-third of our attempts to serve a foreclosure notice now involve people actively evading service (formerly the figure was only about 10 percent).
Meanwhile, the creation of the Consumer Finance Protection Bureau (CFPB), a federal agency established by the Dodd-Frank Act, has further challenged the process-serving industry. The CFPB’s mandate includes writing rules; supervising companies; enforcing federal consumer financial laws; restricting unfair, deceptive, or abusive practices; monitoring consumer risks; and enforcing laws that outlaw discrimination and unfair treatment in consumer finance. With such emphasis on consumer protection, the focus has expanded to include not only whether service occurred but how service occurred, especially when it relates to an uncooperative defendant. The natural consequence has been heightened expectations of openness, honesty, and accountability in the process servicing community, including careful oversight of what actions a process server takes to complete valid service.
For more than 50 years, the guidance on how to serve uncooperative or evasive defendants in Minnesota has been Nielsen v. Braland.2 This precedent provided process servers with some latitude to deal with uncooperative defendants. Nielsen established that touching the person with the papers is not necessary but some kind of contact is required. It further held that if the person being served is in close physical proximity to the process server, under circumstances which would convince a reasonable person that service is being attempted, the service is complete even though the person refuses to accept the service in hand. In Nielsen, the process server offered the papers and actually touched the defendant with them but when the defendant refused to accept the papers in hand, the process server left them on the fender of defendant’s vehicle in a conspicuous place. In upholding the service, the court said:
The only question involved here is whether a copy of the summons was delivered to Braland. We have not had occasion to consider the question whether service is made when the defendant refuses to accept it, but it is generally held that if the process server and the defendant are within speaking distance of each other, and such action is taken to convince a reasonable person that personal service is being attempted, service cannot be avoided by physically refusing to accept the summons. Here, the defendant and the process server were in close physical proximity to each other. Defendant was touched with the summons, and it was laid in a place where it was easily accessible to him. His refusal to pick it upor to accept it did not prevent the service from being completed.3
In a later case, the Minnesota Supreme Court in Carlson v. Cohen4 dealt with a service which was made by placing the papers under the windshield wiper of defendant’s automobile as she attempted to evade service in the driveway of her home. The court held: “There appears to be proper personal service despite its uniqueness … .” The Cohen ruling reaffirms that touching the defendant with the papers to be served is not a requirement.
The Minnesota Court of Appeals recently expanded the latitude a process server has in effecting valid service on an uncooperative defendant. In Drews v. Federal National Mortgage Association,5 the process server was attempting to serve a mortgage foreclosure upon the occupant of the premises. The sole occupant, who was also the mortgagor, was believed to be actively evading service and the server had obtained a general description of the mortgagor including age, height, and weight. No less than 15 service attempts were made. During each attempt, the process server received no response to knocking at the doors, and observed no signs that any occupant was on the premises. On the evening when service occurred, the process server noticed a light on in a basement room that had never been on before. By crawling under the deck and lying on his stomach, the process server determined that what appeared to be a window was in fact a hole covered by wire mesh but containing no glass. Looking through the hole, he could see a portion of an adjoining room, including a pair of hands gripping something and moving back and forth. He also heard the sound of a motor running and concluded that there was a man working on a lathe, or other similar machine. Hoping the man would eventually enter the room into which he was looking, the server decided to wait. After nearly two hours, the man walked into the room and came within a few feet of the hole the server was looking through. Seeing that the man fit the description of the mortgagor, the server immediately told him that he was there to serve him with the notice of mortgage foreclosure sale. Understandably startled by the unexpected voice, the man refused to engage the server in discussion. The server then informed the man that if he was not willing to accept service in hand, he would securely tape the notice to the front door of the residence. The man exited the room and the server taped the papers to the front door.
Drews challenged the foreclosure based on lack of service, arguing that he was not home on the evening when the purported service took place. The district court held a trial on the sole issue of whether service of the notice of mortgage foreclosure sale was properly effectuated. After hearing testimony, the district court found the process server’s testimony to be credible and plausible, and concluded that proper service of process occurred. The Minnesota Court of Appeals affirmed the decision of the district court.
The Drews opinion expands the process server’s latitude previously established in Nielsen in four ways:
- Process servers formerly interpreted Nielsen as requiring a “face-to-face” exchange with the defendant, such that it would be possible to hand the papers to the party if they were to acquiesce to service.
- It was believed that the defendant had to respond in some fashion, or take some action to lead the process server to believe they refused to cooperate.
- Process servers interpreted Nielsen to indicate that the papers then were to be left in as close a physical proximity to the defendant as was possible, e.g., setting them down at defendant’s feet or throwing them through the door as the defendant was attempting to shut it.
- It was understood that determining the identity of the person the server was attempting to serve, whether the defendant or some person of suitable age and discretion residing with the defendant, was essential.
In Drews, the mortgagor was within the structure of the residence and, until service occurred, was unaware of the server’s presence. Although Drews was clearly aware of the presence of the process server as the server spoke to him, he refused to engage the server in conversation; nor did he otherwise indicate that he was refusing to cooperate, beyond simply ignoring the server. Instead of leaving the process near the hole in the wall in closest proximity to the defendant, on the ground beneath the deck, the server determined that it would be more prudent to secure the papers to the front door of the residence. Although the server believed the man to be the mortgagor, he was unable to determine specifically that the man was in fact Drews.
The Drews opinion broadens the scope of when process can be served in the face of evasion. Service arguably now can be made through closed doors, through windows, or over the telephone, and in many cases expensive and often cost-prohibitive surveillance to obtain face to face service may be unnecessary.
Importance of Detail
Drews is also instructive as regards the need to detail what occurred at the time of service. It is not uncommon for process servers to prepare “standard” affidavits which detail where and when service occurred, and to whom it was given, but lack any narrative of the specific event. Not surprisingly, this presents opportunities for defendants to challenge the sufficiency of service.
In 1987, in Johnson v. Commissioner of Public Safety,6 the Minnesota Court of Appeals upheld the district court’s findings that the service “was made by handing to and leaving with the defendant,” when the police officer serving the defendant left the notice on a table in front of the defendant. This opinion in essence eliminated the need for the process server to include descriptive detail in the affidavit when service occurred under circumstances where the defendant was not cooperative. Drews reaffirmed Johnson: “After considering all of the evidence presented at trial, the district court found that although the original affidavit of service was neither fact-based nor detailed, it did not impair the credibility of the process server as Drews had urged.”7
These decisions notwithstanding, the increased frequency of challenges to service should lead attorneys to consider the accuracy of affidavits of service they receive from their process server or sheriff. One cannot safely assume that personal service occurred without attempts on the part of the defendant to evade service, which may later be asserted in a defense of insufficiency of process. Defendants frequently attempt to evade service by refusing to answer the door, denying their identity, claiming that the defendant no longer resides at the residence, claiming not to know who the defendant is, or outright running away.
Drews also establishes that more strict compliance with service is to be expected in the case of a notice of mortgage foreclosure service than in a regular civil action. The earlier cited Smith case established “when the intended recipient receives actual notice of the action, the rules governing such service should be liberally construed to avoid depriving the litigant of his day in court.”8 Drews changes that standard in the case of service of mortgage foreclosure by advertisement actions. The court writes, “It follows that a strict-compliance standard also applies to the service requirements of Minn. Stat. 580.03.”9
Attorneys today practice in an environment where defendants’ efforts to evade service are increasing, scrutiny of the particulars of proper notice and debtors’ rights are intensifying, challenges to service are more frequent, and process servers simultaneously enjoy greater latitude to serve uncooperative defendants effectively. In these circumstances, attorneys must be more vigilant in reviewing the product they receive when retaining someone to serve process.
In many cases, it is far simpler to demand that service be redone rather than question the effectiveness of the first service, making it important to get it right the first time. Serving uncooperative defendants is an added expense that in most cases would be preferable to avoid; however, weighing the increased cost of surveillance against the potential cost of fighting an insufficiency of process claim makes a clear argument for insuring valid service. And adding detail to affidavits of service not only enables the attorney to anticipate problems and react, but may also provide potentially valuable information later in the case.
Scott Gray is a principal at Metro Legal Services, a Twin Cities-based provider of service of process and other ancillary services to the legal profession.
1 Smith v. Flotterud, 716 N.W.2d 378 (Minn. App. 2006).
2 Nielsen v. Braland, 264 Minn. 481, 119 N.W. 2nd 737 (1963).
3 Id. at 739, citing Kurtz v. Oremland, 29 N.J. Super 585, 103 A.2d 53 (N.J. Super. Ch. 1954); Schenkman v. Schenkman, 206 Misc. 660, 136 N.Y.S. 2d 405 (N.Y. Sup. Ct. 1954); Roth v. W.T. Cowan, Inc., 97 F. Supp. 675 (E.D.N.Y. 1949); Hatmaker v. Hatmaker 337 Ill. App. 175, 85 N.E. 2d. 345 (Ill. 1949).
4 Carlson v. Cohen, 302 Minn. 531, 223 N.W. 2d 810 (Minn. 1975).
5 Drews v. Federal National Mortgage Association, A13-1135, ___N.W.2d___ (Minn. App. 07/21/2014). Slip op. at http://mn.gov/lawlib/archive/ctappub/2014/opa131135-072114.pdf
6 Johnson v. Commissioner of Public Safety, 394 N.W. 2d 867, (Minn. App. 1987).
7 Drews, supra n. 5, at 11.
8 Smith, supra n. 1, citing, Pederson v. Clarkson Lindley Trust, 519 N.W.2d 234, 235 (Minn.App. 1994).
9 Id. at 7.