The Small Claims Court is a fickle creature. The Rules of the Small Claims Court, albeit are similar to those of the Rules of Civil Procedure in Superior Court, but not all the Rules are treated the same.
One of those Rules is personal service. Personal service must be effected when serving a Plaintiff’s Claim, Notice of Examination and Notice of Contempt Hearing.
Alternates to personal service are available for the service of the Plaintiff’s Claim or Notice of Examination. An adult of the household can be served, and a copy mailed to the debtor.
If an alternate to personal service cannot be carried out, obtaining an Order for Substitutional Service of the Plaintiff’s Claim or Notice of Examination is easy – make several attempts at personal service, bring a Motion stating that you believe that if the Plaintiff’s Claim or Notice of Examination is mailed to the debtors residence, it will come to their attention and most likely you got your Order.
Not at all possible for a Notice of Contempt Hearing.
A Notice of Contempt Hearing is issued when a debtor fails to attend the Notice of Examination. Failure to attend the Contempt Hearing, can result in jail time for a debtor, so the Small Claims Court stresses the importance of personal service.
But what can you do if the debtor evades service and you cannot serve them personally? What if family members assist with the evasion of service of their relative?
The short answer is nothing. I recently unsuccessfully made the case for an alternate to personal service of a Notice of Contempt Hearing, after our process server attempted up to 15 (yes, 15) times to serve a debtor whose mother and father both assisted in their child evading service.
Although the Deputy Judge was very sympathetic, they advised that no Small Claims Court Judge would allow substitutional service because of the potential for incarceration.
It is incredibly frustrating when a client incurs the cost of a process server, spending hundreds of dollars if not more to try to serve someone when they evade service, and not a thing will be done by the Court.
Alas, we continue our attempts to serve the debtor personally in hopes we will be successful.
Murray Brown, Licensed Paralegal