Criminal Liability for Preparing False Proofs of Service
By Tony Klein
In 2007, I wrote an article relating to a number of incidents involving the preparation and filing of a proper proof of service, entitled “What is a Proper Proof of Service?” That article can be found here: http://psinstitute.com/WhatisProperProofofService.htm
Since then, this issue has continued to vex process servers, and has lead to a number of anecdotal incidents that have resulted in criminal prosecutions.
In 2008 a process server was charged and in Siskiyou County, California for falsifying proofs of service. He was charged with Identify Theft, Forgery, False Personation, Preparing False Evidence, and Uttering (Filing) a False/Forged Instrument. The process server pleaded nolo contende, and was sentenced to 10 days in jail. He did so under house arrest, and filed proof of completion. Docket Sheet and Complaint
In another case, a Boston process serving agency, Stokes & Levin, was sued by a witness who was never served with a subpoena. The process server who purportedly served the witness had stopped working for the agency several months earlier, and his signature had been placed on the proof of service with a rubber stamp.
The suit was brought after the witness, a former president of a Bermuda bank, failed to attend an administrative hearing. News of his failure to honor the subpoena resulted in damage to his reputation, and cost him two positions on the board of directors of two companies. The process serving agency defaulted in the civil suit, and the judgment was rendered in the amount of $3.3 million. Subsequently, the Massachusetts Attorney General petitioned the court to prohibit Stokes & Levin from acting as a process server, advertising legal process services, or accepting money for serving legal papers, and forming another legal process serving business or operate under another name. The court granted the Petition and entered an Order accordingly.
In another astounding case, in April, 2009, American Legal Process (ALP) of Lynbrook, New York was accused by the New York Attorney General of falsifying thousands of affidavits of service, describing it as a “massive fraud scheme.” The AG has also petitioned the court to issue show cause orders to the 38 lawyers and law firms who retained APL, alleging that they knew, or should have known, that the services were invalid. OSC and Petition
The New York court has vacated 100,000 default judgments for cases served by ALP, and the defendants in those cases are beginning to file their own lawsuits for the damages they have incurred. Law.com Article about case
The following is a short overview of what a proof of service is, and what it represents to the court. Additionally, I will describe the crimes that occur when a proof of service is improperly prepared, signed, and filed.
Once a summons is served, a proof of service is signed by the process server attesting to the date, time, and manner of service. Some states allow for that declaration to be made under penalty of perjury, while others require the process server to swear to the facts before a Notary Public. The Notary Public then signs a jurat, a short statement that the person swore to the truthfulness of the statement and, in most cases, verifying the process server’s identity. That notarial act is memorialized in a notary journal of the notary who is a commissioned public official.
A “return” of service is not necessarily equated with “proof of service”, but contemplates that the return will be made either to the court or a judge.
Upon filing, the court treats the proof of service as evidence. It is not conclusive evidence that service was made, but rather “prima facie” evidence of the facts stated therein. Prima facie is a Latin term meaning “at first sight; on the face of it; so far as can be judged from the first disclosure; a fact presumed to be true; etc”
California provides for an enhanced status of a proof of service signed by a California Registered Process. California Evidence Code § 647 gives a proof of service signed by a Registered Process “rebuttable presumption status”, statutorily shifting the burden of proof to a defendant to prove that he or she was not served.
So what crimes are being committed when a proof of service is falsified or signed on behalf of another?
Using the Siskiyou County case as an example will help illustrate these crimes charged. Although the common law and statutory crimes described may be referred to by another name in other jurisdictions, it can provide some insight on how a criminal prosecutor might view these acts.
The facts stated in the felony complaint are as follows: The defendant, a San Jose process server, forged the signature of another process server who had apparently served one defendant in a case pending in Siskiyou County, 300 miles away. That proof of service was then filed with the Siskiyou County Superior Court.
The defendant committed Forgery, a violation of California Penal Code (PC) 470(d), by his willfully and unlawfully making, altering, forging, counterfeiting, and signing the name of another, namely the process server, and did utter, publish, pass, and attempt to pass as true and genuine the document, knowing that the document was false.
The defendant committed False Personation and violated PC § 539(2) when he unlawfully and falsely personated the process server in a private and official capacity and in such assumed the character and “verified, published, acknowledged and proved in the name” of the process server, a written instrument, with the intent that the same be recorded, delivered and used as true a proof of service that was to be filed.
The defendant committed Identity Theft and violated PC § 530.5 willfully and unlawfully obtained the personal identifying information of the process server and used it for unlawful purpose, by using the information on a proof of service.
The defendant Prepared False Documentary Evidence, a violation of PC § 134 by forging the signature of the process server, under penalty of perjury, with the intent to produce it, and to allow it to be produced for a fraudulent and deceitful purposes, as genuine and true, and allowing it to be filed with the court.
The defendant was charged with Filing a False or Forged Instrument with the court under California PC § 115(c) because he willfully, unlawfully, and knowingly procured and offered a false and forged instrument, to wit, a proof of service of summons, and filed, or caused to be filed, said document with the court.
Perjury is defined as the willful assertion as a matter of fact, opinion, belief, or knowledge of a material issue, known to be wrong, in a court or by affidavit. This crime was not charged in this case, so one could assume that the facts in the forged document were likely accurate. It is noteworthy that the prosecution went forward even though the facts in the proof of service were accurate.
California proofs of service are made under penalty of perjury. When a notarized affidavit is signed, as they were in the recent New York case, the notarized affidavit provides another layer of protection that the document is authentic. Hypothetically, if this one proof of service was signed as a notarized affidavit, and the Notary Public knew that it was not the person who actually signed it, the false notarization would implicate the notary public as well. A false statement made by the affiant, sworn to before a Notary Public as a public official, is a perjury.
Unfortunately, the process server and the process serving agency, and perhaps a notary public may be involved in the same set of crimes, especially when the company simply operates a business that routinely sign proofs of behalf of their process servers, and the process servers acquiesce to the practice. If that occurs, a criminal conspiracy could be charged against all of them, and could result in accomplice liability. This is the exception, but is not unheard of.
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