MR. BUCKLES: The debt negotiating companies actually tell the -- and the Internet -- "Don't take any service; don't answer your phone calls; don't answer letters; don't take any service." So that's a factor that needs to be considered in all of this, because it's a balancing.
MR. LYNGKLIP: You're jumping straight to alternate service and you're jumping over the pink elephant sitting in the room, which is what happens when the process server lies.
MR. BUCKLES: They should be prosecuted.
MR. MARKOFF: Send them to jail.
MR. LYNGKLIP: What does that do for the consumer, though? Sending them to jail and leaving this to the judicial system or to a prosecutor or to a DA -- how long did it take Andrew Cuomo to bring that suit that we just saw last week -- 100,000 judgments -- potentially bad judgments can go out.
MR. O'TOOLE: You need to tell them more about that in New York City.
MR. LYNGKLIP: I know what I read in the paper, and the basis of the suit is that there are potentially 100,000 judgments out there in the state of New York that are predicated upon nonpersonal service in the face of an affidavit of a process server. So before we even jump to alternate service as an appropriate means of -- on state-by-state basis of obtaining service and providing due process, the first problem that I see in my practice is I see people who have never been served and, in fact, are being served at bogus addresses or being served at times and places1 where they can demonstrate that they were not either at their homes or in their state or --
JUDGE MOISEEV: Are you suggesting that the judges aren't setting aside that service?
MR. LYNGKLIP: Oh, there are any number of judges who won't set that aside without a meritorious defense and without --
MR. BUCKLES: Not if it's not noticed. That's not -- that is not true. I'm sorry. If you don't have notice -- that's a constitutional right to have notice. Every judge -- every judge in the state of Michigan and in this country will set aside a judgment if a person did not have notice.
MR. LYNGKLIP: I know what due process says, and I know what the requirements are, and I don't think the focus should be on whether a judge is correctly applying the court rules that would allow it to set aside. I think that the judges are greatly overworked, and I think they are underresourced --
JUDGE MOISEEV: And underpaid.
MR. LYNGKLIP: -- and grossly underpaid, and I still see that this happens. But the problem is the process servers are themselves immune from an action under the FDCPA, and we have debt collectors who occasionally are appointing people that they know are a bad process server -- they know are bad --
MR. MARKOFF: No, no, that is not true. We are not looking to commit fraud. We collect debt ethically. We do not want to have invalid judgments. Do you know what it wastes in our time and resources five years down the road to have a judgment washed when you're in the middle of a wage-deduction proceeding and you have to go and explain to your client that you had bad service? We want good service. And the reason --
JUDGE MOISEEV: You do, but not everybody.
MR. LYNGKLIP: I'm not suggesting that that is the practice, but when it happens -- and we have had instances of attorneys in our state who have falsified service of process and were --
MR. MARKOFF: Attorneys who have falsified?
JUDGE MOISEEV: We did have a situation in Michigan.
MR. BUCKLES: He was disbarred, too.
JUDGE MOISEEV: No, he wasn't disbarred. He was suspended. I think it was 87 counts of contempt in regard to his falsifying proofs of service, and affidavits were substituted.
MS. WEINBERG: I would not -- I think that the judges will typically accept the affidavit of the process server over the client who comes in two years later when their wages are being garnished and who say, "Oh, I never got served," and they say, "Well, we have an affidavit, a sworn statement that says you were served."
MR. LEIBSKER: Judge Donnelly?
MS. WEINBERG: Judge Donnelly wouldn't do that.
MR. O'TOOLE: The issue of judges being underpaid, I think we can all agree that government employees generally are underpaid. But, sir, what is your docket like? I mean, I practiced in a courtroom a little bit back in the day.
JUDGE DONNELLY: I think the tubs -- Joe Panarese and I are well familiar with -- in the trial court and in collections, the tubs of default records are enormous. So you'll have sometimes, in a collection call, 300 to 600 default orders to go through. The difficulty I think that's raised by the New York case -- I read the complaint in that case, and it's a very interesting complaint -- is it documents that process servers by an audit conducted internally by the Court, which is something we don't have in Illinois, determined that process servers were claiming to have personally served up to 12 or 13 people simultaneously in different regions of the state. In the complaint, pages 6 through 9 are all these documented occasions of simultaneous service.
And I have the same attitude as many people here hearing all these complaints of "I wasn't served" at garnishment, that sort of thing, that these people are just making it up. But one day one of my colleagues, Judge Taylor, just took a stack of services from one process server, and this person claimed to be in areas 30 miles apart in the Chicagoland area within minutes. And we brought him in and the law firm in, and we said, "Is he Superman? How can he be doing this?" And he came up with an explanation that he was signing it for other process servers.
But that experience of seeing fraudulent service gave me a lot more skepticism for actual service of process and a lot more belief in what debtors were saying than I had previously. Previously I had dismissed it.
JUDGE MOISEEV: Our sheriff doesn't do process serving. They're too busy with their toys, their helicopter and their phone.
MR. BUCKLES: I didn't say that. There's more default judgments but I don't think the percentage is any more.
MR. BARRY: Well, I will tell you percentages have skyrocketed in Minnesota, particularly in Hennepin County. There's been numerous television stories and local newspaper clippings about how the Hennepin County court, which would be somewhat comparable to Cook County in Illinois, have been inundated with default judgments by the clerks. And the reason for that is very simple, because the laws have been designed by the collection -- with all due respect to the collection bar -- by the collection bar to benefit the collection bar.
We've got hip pocket filing in Minnesota, which allows collection attorneys to serve someone without filing a lawsuit with the Court. There's no judicial oversight and all the judges on the panel perked up about "What's our job?" Your job is marginalized in Minnesota; you don't have a job in Minnesota in a default judgment. An administrative default judgment in Minnesota, that's handled by the clerk. You can serve a lawsuit in Minnesota, never file it with the Court and garnish wages when you, as the attorney, the collection attorney, determine that that consumer is in default on that debt.
I think that being able to collect debts without any court intervention or any judicial oversight is absolutely -- it's counterintuitive to any sense of due process, in my mind. And as shocked as these judges are looking, I'm telling you that that's how it exists in Minnesota. You can file -- you can serve a lawsuit, never file it with the court, and the default occurs because the consumer picks up the phone and calls Hennepin County, calls the clerk of the Court and says, "Madam Clerk, I got served with this lawsuit, and it doesn't have a court file number on it." And the clerk says, "We don't have anything on file." You don't have anything on file because it was never filed with the Court. You initiate a lawsuit in Minnesota by simply serving the summons and complaint.
MR. MARKOFF: That's not the case in Illinois; I assure you.
JUDGE MOISEEV: You never have to file it?
MR. BARRY: Never have to file it.
MR. LERCH: How do you enforce it post judgment?
MR. BARRY: You simply -- if you want judicial intervention, if you want some kind of order -- you can take discovery without judicial order, but if you want some kind of judicial intervention, you can then file it.
MR. O'TOOLE: Is this unusual?
JUDGE MOISEEV: I sanctioned a law firm because they issued a garnishment -- they served a garnishment without it ever getting through the court.
Does any nation apart from the US make this distinction? As far as I understand it, we have cop shops, remand centres, and then prisons (AKA jails). Is this a federalist thing?
« Older First came love, then came marriage, then came a r... | U.S. Identifies Vast Riches of... Newer »
This thread has been archived and is closed to new comments
Buy a Shirt