Saturday, August 05, 2006

Service by mail and due process

In FIRST RESOLUTION INVESTMENT CORPORATION v. BILAL SEKER, 171 N.J. 502; 795 A.2d 868 (N.J. 2002), the New Jersey Supreme Court tackled the question: whether ordinary mail constitutes valid service when the certified mail is returned marked "unclaimed." The answer given was "yes" although the ambiguity in the practice of the US Post Office (for example, "unclaimed" might include "moved, unable to forward") was NOT addressed by the New Jersey Supreme Court. Thus, an ordinary piece of mail sent to incorrect address can constitute valid service if the ordinary piece of mail is not returned.

The Supreme Court said: We directly certified this appeal, 169 N.J. 596, 782 A.2d
417 (2001), to resolve a conflict in the Appellate Division in respect of certain
provisions governing service of process under our Rules of Court. Plaintiff sent a
written notice of its application for wage execution to defendant by certified
and regular mail. The post office returned the certified letter, marking it
"unclaimed." The letter sent by regular mail was not returned.
Plaintiff submitted the wage execution application to the trial court along with
a certification of service specifying that plaintiff had sent the notice
to defendant by regular and certified mail to his last known address, and
that the certified letter was returned "unclaimed."

The Supreme Court noted of the lower court decision: Relying on Tureo, the trial court held that "even though regular mail was not returned, service was not effected. 'Unclaimed' [795 A.2d at 870] is not the same as 'Refused' or 'Not Accepted'."

The facts were simple: The facts are straightforward. Defendant owed plaintiff
approximately $ 3000 for an unpaid credit card balance in addition to annual interest as set forth in the parties' credit card agreement. On March 24, 2000, plaintiff sued defendant in the Special Civil Part to recover the monies owed. Plaintiff sent the summons and complaint to defendant by regular and certified mail. The certified mail return-receipt card was returned unsigned, and the reason for the
non-delivery is unknown. (The notation of the post [*507] office that usually
describes the reason for non-delivery is illegible.)

Defendant himself has not appeared at any stage of these proceedings.

Of the rules: [page 509] The comment to Rule 1:5-4(a) states that "this rule . . .
merely restate[s] the practice already prescribed by R. 1:5-2 for service of
papers after process." Pressler, Current N.J. Court Rules, comment 1 on R.
1:5-4 (2002). Notably, the pertinent language in Rule 1:5-2 ("refuses to
claim") is slightly different from the language in Rule 1:5-4(a) ("fails or
refuses to claim"). That difference apparently has caused some confusion as
evidenced by the conflicting Appellate Division decisions.

The Caldwell panel determined that when "service of the turnover
motion has been made simultaneously by certified and ordinary mail at the
debtor['s] last known address, the [creditor's] application should be granted" so long as either mailing was not returned for the reasons stated in Rule 6:2-3(d)(4).
Id. at 564, 775 A.2d 34. That rule governs service of process in the Special Civil
Part, stating, in relevant part, that simultaneous mailing of certified and
regular mail "shall constitute effective service unless the mail is returned to
the court by the postal service marked 'moved, unable to forward,'
'addressee not known,' 'no such [***16] number/street,' 'insufficient address,' . . . or the court has other reason to believe that service was not effected." R. 6:2-3(d)(4)

We recognize the literal difference between "unclaimed" and "refused
or not accepted." We nonetheless agree with the Caldwell court that in respect
of the latter phrase, "common sense dictates that this [phrase] includes
postal service notations indicating that certified mail service 'failed' such as
'unclaimed' or 'not claimed.'" Caldwell, supra, 340 N.J. Super. at 570 [***21] n.2, 775 A.2d 34. The comments to Rule 1:5-2 and Rule 1:5-4(a), to the extent they
reveal "legislative" intent, indicate that the rule drafters intended no
distinction between mail that is "unclaimed" and mail that a party "refuses to
claim." See Pressler, supra, comment on R. 1:5-2, comment 1 on R. 1:5-4. Although a
literal distinction between the two phrases may suggest otherwise, we are
satisfied that Caldwell's interpretation is consonant with the intent underlying the
rules. See Town of Morristown v. Woman's Club of Morristown, 124 N.J. 605, 610,
592 A.2d 216 (1991) (observing that plain language of statute [or rule] should
be given effect unless there is "specific indication of legislative intent to
the contrary").

Similarly, we agree with those courts that have observed that
service by mail is an "efficient and inexpensive way" to serve litigants. Mullane,
supra, 339 U.S. at 319, 70 S. Ct. at 660, 94 L. Ed. at 876. In Feuchtbaum v.
Constantini, 59 N.J. 167, 181, 280 A.2d 161 (1971), this Court held that due process
is satisfied when a defendant, who cannot be found for personal service
but is a resident of the State at the time of the actionable event, is served by ordinary mail at his or her last known address. In short, we find nothing in the
procedure followed by plaintiff, or in the language of the rules as
interpreted by Caldwell, that violates the basic requirements of due process.

The Supreme Court stated:

Lastly, although we have resolved the issues most pertinent to this
appeal, we acknowledge that Legal Services has brought to our attention other
provisions of our court rules that may require further consideration. First, Rule
6:2-3 contains postal designations, such as "moved, unable to forward," that
may be inconsistent with existing post office practices
, and, therefore, that
rule should be revised to ensure that it contains more appropriate language.
Second, the difference in language between Rule 1:5-2 ("refuses to claim") and
Rule 1:5-4(a) ("fails or refuses to claim") should be harmonized to avoid
further confusion.
Third, a requirement that a creditor must include
information in respect of how it obtained a debtor's "last known address" in the proof of service also should be carefully considered because
post-judgment service of process relies so heavily on the accuracy of that address.

The Civil Practice Committee is the appropriate entity to evaluate
those proposals. We thus direct that Committee to review the revisions
suggested by amicus and to recommend any additional changes to our service or notice
rules consistent with the principles enunciated in this opinion. The Civil
Practice Committee should seek input from the Special Civil Part Practice
Committee to the extent that the proposals implicate rules within the purview of
that latter committee.


Post a Comment

<< Home