This article appeared in the July-August 2008 issue of the NAPPS magazine, The Docket Sheet. It is reprinted here with the kind permission of the author, John Abbott. As noted in the title it was originally posted in an online forum. Mr. Abbott is an experienced process server based in Susanville, CA.
Originally posted on the ServeNow forum, September 2008
This post is meant for informational purposes, is based on public documents and I am not providing a name because the person has not been convicted. With the exception of the case data, much of the rest is my opinions, based on experience and training. Some may recall prior posts, and if a member of CAPPS or NAPPS, an article some time back by Tony Klein regarding the business practice of some companies signing process servers names to Proofs of Service they never see. For those not familiar with the article go to www.psinstitute.com and get the article on What Is A Proof of Service. The gist of the article was to highlight an industry practice where certain companies sign the server’s name to a Proof or Affidavit of Service that the server never saw.
A couple of months ago I was conversing with the owner of a Process Serving Company that I do work for. The owner asked me if I had heard about the owner of a bay area attorney service company that was probably going to get an address change to a state prison. I hadn’t heard of it before, but what I was told was that a process server from the San Francisco area had been caught filing a Proof of Service in Siskiyou County that the server hadn’t signed. I asked for copies of any developments and asked around and found that no one had heard of it. Then about a month ago I received a fax of a news item relating to the incident. It was a small blurb in the section of the small town newspaper where they list Jail Bookings. It said that a 49 year old male of San Jose California was charged with offering a false or forged instrument to file, preparing false evidence, unauthorized use of personal ID to obtain credit, impersonating to record a document and forgery/counterfeit.
As best I could determine the charges resulted from the filing of a Proof of Service in a civil case in Siskiyou County. The Proof was not signed by the server, but by the attorney service owner. There is an industry practice that some companies use that I personally find abhorrent. They sign server’s names to documents that are never seen by the server, then file them with the court. California does not require Notarized Affidavits, but does require them to be signed under penalty of perjury, violation of which is a felony, and it falls on the signer. A few years ago a local server was arrested here in Lassen County on felony charges relating to putting untrue information on Proofs of Service. An example was claiming personal service, when substitute service was actually affected. There were other fraud/forgery related charges that didn’t relate to process serving as well. The server plead out to one felony count and was sentenced to a year in jail. I know the practice is ongoing because I have a stack of documents that my own signature has been forged on. A couple of weeks ago I received the court documents filed in the Siskiyou County case.
Count 1: FILE FALSE OR FORGED INSTRUMENT, a Proof of Service upon which the signature of name deleted was forged. A violation of California Penal Code (PC) Section 115(a) a felony.
Count 2: PREPARING FALSE DOCUMENTARY EVIDENCE, Did unlawfully prepare a false paper record, instrument in writing, and other matter and thing, to wit. A Proof of Service upon which the defendant forged the signature of name deleted under penalty of perjury, with intent to produce it, and to allow it to be produced for a fraudulent and deceitful purpose, as genuine and true, upon a trial, proceeding, and inquiry whatever, to wit, by filing a forged document with the Siskiyou Superior Court, violating PC 134, a felony.
Count 3: IDENTITY THEFT, the defendant did willfully and unlawfully obtain personal identifying information of name deleted and used that information for an unlawful purpose without obtaining consent of name deleted, by using and signing name deleted name upon a Proof of Service and filing said document with the court. A violation of PC 530.5(a), a felony.
Count 4: FALSE PERSONATION: Said defendant did unlawfully and falsely personate name deleted in a private and official capacity, and In such assumed character verified published acknowledged and proved in the name of name deleted a written instrument, with intent that same be recorded, delivered and true by filing with the Siskiyou County Court said forged document. PC 529(2), a felony.
Count 5: FORGERY: That defendant did willfully and unlawfully make alter forge counterfeit and sign the name of another person upon a Proof of Service. PC 470(d), a felony.
All of the above for one document. I left out a bunch of the legal mumbo jumbo to save space.
This month in the CALSPro Press there is an article by Stephanie Saylor titled “Under Penalty of Perjury” Signing Proofs of Service. This article, which I don’t have permission to reprint, details the industry practices, offers advice and documents problems she has experienced. I would strongly suggest everyone in the industry should read this article and apply it to their business. I also think that all state and national associations should read it and adopt bylaws condemning this practice and expelling members who practice it. I am going to quote the editors comments printed with the article. “What a breath of fresh air! A call for ethics and honesty in the profession! Here is a woman who is politic in her writing yet firm and unwavering in her message. These matters are sworn to the court and must be reliable. Read on and enjoy!. –Editor-“
I did read on, but I didn’t enjoy. I applaud the article and the guts and integrity it took to put forth an article that exposes what is a dark stain on our industry. I spent over twenty years as a police officer and I was a Detective assigned to the Forgery/Fraud Unit. Cases such as the Siskiyou County case, would have hit my desk to investigate. I have been a private investigator and process server for almost 15 years. I am in a rural area and do not forward out work to others. However, I have several thousand clients that forward work to me for service. It took me a while to catch on to forgery/fraud in my serves, because most of the Proofs of Service that are sent to me are for service here, but filing elsewhere. There also seems to be an almost total lack of understanding that a Proof or Affidavit is a piece of written documentary evidence that must be treated and protected in the same manner as any other piece of evidence.
When I first encountered my signature forged on a Proof I called the company and asked why. Their response was that was the way business was conducted. Since then I have heard a variety of reasons offered by many different industry members. The ones in favor generally quote time saving as the reason. Some have a clause in their contractor agreement authorizing the practice. Others just do it. I saw one contract where the company agreed to assume the liability for loss. I would like to see the company rep who agreed to that, assume the liability in the Siskiyou County case, where the liability could be several years as a state prison inmate. I see no legitimate legal reason for this practice, that many of us aren’t aware of happening. The problem is going to get even worse as we move into the electronic service of process age.
In one instance I had been subpoenaed to testify in a contested serve case. I met the attorney in front of the courthouse and he handed me the proofs and asked if I could Identify them. I looked and then told him they were forgeries. This company had taken my proofs, replaced them with others and signed my name. To make it even worse, they had the service data wrong. I produced my file copies which I had taken with me and the forgery was obvious. If the attorney had waited until I was on the witness stand to show me the proofs, I would have testified that they were forgeries. I called the company and the only response was that was their company policy.
I have never met or spoken to the author of this month’s article. However it is as if she read my mind because these are the same issues I have been raising with the industry, based on the same reasoning. I suspect that there are a lot of servers out there that are not aware of this practice and would object to the practice if they did. I also suspect that if a list of firms using this practice were to be published, they would not find too many servers who would except work from them.
Just this week I served a paper for a forwarder who is a major player in the California market. The job was simple, serve a Summons & Complaint on a local person. The work order was faxed in and I entered the data into my system. I use Process Server’s Toolbox and it requires that I enter all of the data needed to complete the job. That includes all of the attorney and case information as well as the servee. That data is then used to generate the Proof. I don’t use the forwarder’s work order, I enter the data from the actual documents. It was a simple job, except that the papers were from a Nevada Attorney on a Nevada case for service in California and were routed to me through a California Forwarder.
Using the documents provided I entered the Court info for the Washoe County Nevada District Court and the documents as a Summons & Complaint. PST has a feature that allows the scanning to PDF of the documents and then attaches them to the work order, eliminating the need for file copies. I went out and served the documents. This is the first job I had done for this company so I had to call the status in. I did, giving the service info along with the admonition that I did not allow my signature to be applied. I received the proof they sent and it was bad. They had misspelled the county and the court and it listed the documents served as a Subpoena. It was a Nevada Proof printed on a California form, (the only one their software seems to putout) and was lacking the Notary block required when this court’s papers are served outside of Nevada. I called back and gave them the corrections and a second proof arrived. The court data was corrected, but the Notary wording has been illegal to use for several years.
I called back again and this time the person referred me to the owner. He came on the line with the statement that I was wasting his time and he needed to be on the phone with people he could make money from instead of me. I explained that I was trying to make sure the work product he sent to his client was correct and tried to explain the Notary wording issue. His response was that they used brand x software and that was the only way it printed. They sent it out hundreds of times and it was not changeable. I pointed out it was illegal for a CA Notary to sign it and could I just send him my proof. In California Notaries face severe penalties for using Notarial Wording that is not correct. I will also point out that PST fixed this problem immediately. We are not slaves to our software they need to give us what we need and is legally required.
If I had not insisted on signing the proof, and this was one of those firms that signs (I HAVE NO KNOWLEDGE THAT THEY FOLLOW THIS PRACTICE AND WANT TO MAKE THAT VERY CLEAR) the documents would have been totally incorrect and my signature would have attested to their correctness.
I will close with this. The above are my opinions and I stand by them. I deliberately omitted names because I want to make it very clear that there is nothing personal in this. The names in the Siskiyou County case are public record, but I don’t feel that posting them would accomplish anything positive. Feel free to disagree with me. If you feel the need to flame me, I respectfully request that you send it to me privately. If you disagree with me and feel that my opinions are incorrect, feel free to post anything factual that might lead me to change my opinion. If you read the articles and check out the facts and reach an opinion either way, I suggest that you make that opinion known to the leadership of the associations you belong to. This type of business practice can only survive in the darkness. Bringing it into the light will expose it for what it is. This issue is sooner or later going to come to the open knowledge of the Courts and the legislatures. Another California server who is against it prophesied that if we don’t fix it ourselves, the most likely legal remedy will be to require all California Proofs to be Notarized. If that happens, California Notary law sets the fee as 10.00 per signature with a proposed increase to 25.00.
John Abbott
Lassen Investigative / Attorney Services
johncapi@yahoo.com
This is a rough diagram of a typical courtroom in the state of Washington. Courtrooms vary a great deal from city to city and county to county but they all have the same basic structure.
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