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Stay-at-Home COVID-19 Pandemic Service of Process Restrictions
As of shortly after 11:00 AM today, by lack of inclusion, the duties of Process Servers were classified as “non-essential”. Professionally; I don’t believe this should be the case no more than those that work for FedEx, UPS, USPS or anyone else that is expected to make deliveries, particularly considering the fact that we have legal obligations tied directly to due process, due diligence, effort and inquiry. Process Server duties are absolutely essential, and they absolutely must travel to perform those duties.
Although I certainly understand the Governor’s and other individual’s fears of exposure and/or contamination; we at Risk & Associates have taken every precaution that those in a medical clinics, doctors offices or hospital have; and so have our Process Servers. Universal precautions and the additional protocols specified in the Michigan Department of Health and Human Services directive dated March 11, 2020 are practiced and strictly adhered to.
That being said; I had originally left it up to the discretion of each staff member and the individual Process Server to make their own decision whether or not they wished to self quarantine or reduce their work schedules or travel routines. Up until today, (and not surprisingly) all of our office staff were choosing to continue working full-time and all of our Process Services were still out there serving every day….. and wanted to continue. Everyone has financial obligations, and many have children at home they are responsible for and knew the consequences of not working. That’s why they had already incorporated those safeguards into their work routine.
Further; although most Courts were restricting access and some were even claiming to be closed; they still had staff reporting for work. Some on a rotational workday basis or reduced work schedule, but all of them continue to receive mail and other deliveries. With the exception of those Courts that require in-person filing only; I continue to encourage our clients (and for them to encourage their clients) to continue filing their claims as much as possible. Should they choose not to; then it’s only logical that everyone will begin mass filing when the pandemic slows down or ends, and all us involved in the process (law firms; court clerks, office staff, process servers, etc.) will become so inundated by the extreme bottleneck of work-flow, that none of us will be able to get much accomplished. If we allow that to occur; frustration with each other’s inability to process their work in a timely manner will undoubtedly cause some good business and working relationships to go bad….
Our position was to try and proceed as much as possible with service in each and every case. If we didn’t; then we were not performing our due diligence, and not fulfilling the obligation we had to the Courts, our clients and even to the parties being served.
As part of our Catastrophic Emergency Plan, we have several staff members working from home remotely to assist our Clients, Courts, Sherriff’s Offices and Municipalities with their on-going need of information and Case Management communications. We continue to receive cases and Data Entry is fully operational, ensuring an immediate assignment of cases to our Process Servers as soon as the Pandemic is over; or Governor Whitmer’s Executive Order 2020-21 is rescinded
As the pandemic progresses; anything we can do to work with you to make sure your workload runs smoothly; do not hesitate to let us know. We are going to continue doing our very best each and every day, on each and every case.
Respectfully,
Rick E. Risk
Adhering To Statutory Service Fees Will Produce Ethical and Truthful Results
There has always been much discussion and debate within our profession here in Michigan regarding the fees allowed for the service of process. Some Process Servers are willing to charge less, often in return for a larger volume of work; while others strictly adhere to statutory fees. Most everyone agrees however that we are not compensated near enough for the service we provide and the demands put upon us.
The current statutory fee structure for the service of process and the associated mileage were instituted by the Revised Judicature Act 236-25 of 1961, which also codified a variety of other fees and services within state and other governmental entities.
The Michigan Court Officers, Deputy Sheriff and Process Servers Association has been successful in the recent past on three separate occasions by legislating increases of those service fees, and on the second occasion; a change also in the computation of the mileage fee. Most recently, additional costs were added to include GPS verification and Photos and Affidavits/Verifications when requested by the Plaintiff, and for the benefit of those making the request, we ensured they were a taxable cost. These increases and additions were a benefit to all who serve process, including those that are not members of our Association, and contributed absolutely nothing to help ensure passage.
M.C.O.D.S.A. put forth a great deal of effort, spent countless hours and a considerable amount of money (a large portion of which was personally donated by several individuals on the Board of Directors) to obtain these increases. It should also be mentioned that M.C.O.D.S.A. has been successful in other legislative endeavors, namely; the revisions of MCL 600.1831; allowing service on Sunday and MCL 435.101; allowing service on public holidays, and the revision of MCL 600.552; Trespassing, exempting Process Servers when serving process.
Therefore; I find it professionally offensive that some choose to charge less than the allowable fees many of us worked so hard to get, yet at the same time, shamelessly taking advantage of all the opportunities and privileges made available by our considerable monetary investments and efforts. Service fee disparity has also now become a concern of the FDCPA and the CFPB in that those engaging in “competitive pricing” by charging less than statutory service fees was not an option or choice to the served parties; (amount added to their judgment) but only to those that sought to have the service perfected.
The service we provide has a substantial value, and to charge less than that allowed by statute not only challenges but severely decreases that value. It is a disservice to all of us in this profession as it cheapens our professional worth and ultimately discredits our integrity. It conveys the depreciating message “Serving process is easy; not important and should be cheap”. Simply put; it taints the importance of our core purpose; proper service and due process. And, here’s why.
Our duty and responsibility is to give proper notice via the service which is the foundation of the Due Process requirement. However; when the amount of effort and subsequent costs exceeds the amount of compensation to accomplish that, shortcuts in the process are going to be taken by some, and less than proper due diligence will often occur.
MCL 600.2559 allows the service and mileage fee to be charged for personal service of each Defendant/Entity named, but not the attempts that were needed to perfect that service. Further; the general rule of thumb for an Order for Alternate Service to be granted is a minimum of three (or more) attempts; verification of residency and some sort of notice left for the Defendant that the service of legal documents are being attempted on them.
The first issue arises from the generally accepted requirement of three or more attempts. Too often after the initial attempt, the Defendant knowingly and intentionally avoids service. Unfortunately; nothing in statute mandates that a party make them selves available to be served. Hence; multiple attempts become required and as we all know; by the time the Order for Alternate Service has been granted and posted, not only has any profit from the service fee been lost due to the multiple service attempts required, but it has likely cost over and above the amount of the service fee allowed.
Personally, I believe that in those instances of obvious evasion we should be allowed to statutorily charge for each attempt, however; this is not the case.
So; taking this into consideration, it begs the question: How often are the 2nd, 3rd or subsequent attempts actually being made by those that charge less than statutory fees? And further; when an Order for Alternate Service is granted, do they even post the documents? And; if they do post them, do they also include a copy of the verification listing the service attempts that were supposedly made? This is important because if those attempts were actually made, then why would one not provide that information to the Defendant?
Many of us have had our doubts and suspicions regarding the practices of certain Process Servers and a few process serving companies here in Michigan, and rightfully so. For most of us, we agree that our profit from serving papers must come from those occasions that a party is served on the first attempt, and it is that profit that allows us to offset the cost of those requiring multiple attempts. Process Servers charging less than statutory fees do not have that margin available to them, and therefore must make up the difference elsewhere; i.e.; not actually making the stated service attempts and not actually posting the documents and Alternate Service Orders once issued. (and not paying a Process Server for these actions) This practice, which is much more prevalent than most believe, (or want to admit) slants the playing field, and puts the honest and ethical Process Servers at an overwhelming disadvantage. After all, does anyone actually believe that someone can or will provide proper service attempts when charging a reduced service rate? Most of us know it simply can’t be done regardless of how efficient they claim their procedures or operations to be. The unfortunate fact is; promoting proper service at statutory rates has much less appeal to potential clients than promoting cost savings, because unfortunately, it’s almost always about the money and the judgments they desire to obtain.
However; I feel that if you have to charge less than statute to either obtain or retain business, then you are undoubtedly doing something wrong and seeking work from the wrong types of clients.
Several years ago I received a call from a gentleman who was inquiring if I would be interested in purchasing his Process Serving company. As a competitor, I was already familiar with his practice of charging less than statutory fees, and politely explained that because of this, his business had little value. His clients were accustomed to paying for service on a severely reduced fee structure, and most would not be very open to an increase based on our practice of charging statutorily. Had he been charging his clients according to statute as a matter of normal business, I would have been more than willing to negotiate a fare purchase agreement. As it turned out, I’m certain I eventually obtained several of his clients simply through attrition.
A common practice of several Process Servers/Companies has been “Judgment fee stacking”. That is; listing taxable costs on a Proof of Service that were not actually incurred, and certainly were not invoiced for; thereby falsely increasing the judgment amount over and above actual costs for the benefit of their client. (Postal Verifications, GPS Verifications, Affidavits, etc.) This practice is not only deceitful but unlawful. It’s conspiracy and collusion. If you’re a civil Court Clerk, you undoubtedly know exactly who these offenders are. If it’s listed as a statutorily allowed cost, it should be provided with the Proof of Service verifying that the fee is legitimate. We go a step further. In the event there is any question whatsoever; we post all of our invoices for transparency/reconciliation purposes too.
I’ve always believed in investing heavily back into my business not only for the benefit of the business itself, but to enhance the experience for those that utilize us. Because I do, the Attorneys, financial institutions, businesses, municipalities, individual Plaintiffs and Landlords, Court Clerks and Sheriff Offices all have unfettered access to a host of technology and services we offer making their jobs and tasks much easier..
I also believe that because fees are statutorily regulated, competition should NEVER be about the fee, but rather the services provided for the fee. This promotes a higher level of professionalism and encourages us to customize and tailor our services thereby placing the clients focus on which service is best suited for their needs, rather than the price.
Just a few examples that one can offer clients are:
- Client customized F.T.P.’s
- Utilization of mobile app with GPS tracking and photo verification
- Utilizing a secure website log-in for clients and Courts to check case status’s and view/print case relevant documents
- Service attempts guaranteed within 48 hours of receipt (or sooner)
- Skip tracing
- S.A.S.E.’s
- Script service for Motions
- Document pick up
- Filing of proofs
- Office staff that actually answer the phone and return calls
Being proactive and creative in the services you provide will set you apart from others when compared by both current and any potential clients.
This reduces the opportunity and restricts the ability of those seeking service to “price hunt” and only provide work to those that agree to lower service fees. Therefore; the opportunity to acquire and retain work would then be based on the professional services provided, not the fees.
Ultimately, we live in a free society and work in a free market. Those privileges also come with a certain amount of risk. Normally, individuals and companies have the right to charge what they wish, and others have the right to take advantage of those discounts. However, when fees are statutorily defined as they are in Michigan, and as a 35 year veteran of the civil process profession, I caution anyone offering such a discount to remember that it is quality, not quantity that makes for long term success. To anyone considering accepting such an offer to remember that, for better or for worse, they will be getting what they pay for.
Rick E. Risk
Michigan Court Officer and Special Deputy Sheriff
