I’m having a problem getting the return documents for proof of service for the initial divorce complaint. I know that the defendant was served by certified mail with restricted delvery and a return receipt (green post card) from the on-line postal records but I have not received the green return receipt more than 21 days later.
Also, I know the defendant was served by a county sheriff’s deputy a few days after the certified letter. That was sent to them with an SASE for returning the documents, but I have not received them yet either.
How long do I have from the date of filing to provide proof of service?
If that time is about to lapse, how do I get it extended?
The problem is not with my diligence, the defendant was served about 5 days after filing. The problem is with the post office. I am receiving a lot of my mail 14 to 30 days after its postmark. I would file the certification of service, but I don’t have the documentation yet.
I guess a simpler quesiton is, if I never get the mail with proof of service, what should I do next?
Is there a point in time where the defendant can’t be served again or another summons issued?
Is there a point in time where the defendant ceases to be a defendant to the complaint simply because they weren’t served, or, more accurately, no proof can be given to the clerk and the court?
What steps should I take now to prevent adverse consequences from the problem of receiving proof of service?
Thanks!JamesDouglas
Posts: 2
Joined: Tue Mar 29, 2011 2:34 pm
There is no time limit in which you must provide proof of service, only a 60 day time limit in which the summons is valid. If the defendant has already been served, you are in the clear.
We have also had problems with the post office returning the green cards, and at times have printed out the delivery confirmation on –line, some judges have accepted that as proof of service when attached to an affidavit.
Erin -
Thank you for your reply.
I have since discovered that if the certified mail was delivered, I can get a replacement return receipt by filing PS Form 3811-A Request for Delivery Information/Return Receipt After Mailing at a local post office.
Also, if the PS Form 3811 Return Receipt goes missing from the original letter or one forgets to ask and pay for a PS Form 3811 Return Receipt, one can get one within 2 years of the mailing by filing the above mentioned PS Form 3811-A. If the original return receipt fee was not paid, there will be a fee for getting one after mailing. If the return receipt fee was paid, the Request for Delivery Information/Return Receipt After Mailing will be processed at no charge. The USPS information about this indicates that this is the normal procedure for lost and delayed Certified Mail Return Receipts.
The USPS claims that a Form 3811-A is as good a proof of delivery as the original PS Form 3811 for courts. I’m curious if that is also your experience as well.
Thanks!
I have never gotten as far as having to use the form 3811.
Thanks Erin.
I submitted 3811-A and was given an electronic signature record. It turns out that the one that was sent to the address where it now appears she lives was signed for by her brother-in-law at that address and not her even though it was sent Restricted Delivery to her. It is the same address that is on the current title and registration of her SUV. The Restricted Delivery box was checked on the original 3811 and the envelope stamped Restricted Delivery several times both front and back by the person at the counter from where it was sent.
The Post Office where it was delivered doesn’t respond. I still don’t have the 3811. The original summons for that address was sent with it and I don’t have it any more. Do I need to get a new summons and send it again? Does delivery to someone at her current address count as being delivered to her even if it is a post office error? Will it stand up in court?
Delivery to a person with whom she lives, and who is qualified to act as her agent will suffice as service.
I don’t know if the brother-in-law lives there. I don’t know if he is qualified to act as the defendant’s agent. All I know is that as of 15 years ago, he was the defendant’s brother-in-law. I don’t know if he is still married to the defendan’ts sister. I have no evidence that he lives there or that he is qualified to act as the defendant’s agent. The last information I have personal knowledge of is that the person who signed for it lived nearby on the same street 15 years ago.
Through all this, I have discovered that the defendant resides in another state at an old address for the defendant’s now deceased mother. I called the county sheriff’s office where the defendant lives and to whom I also sent a summons for service. I found out that they served her on the 11th of March and mailed the return back to me on the 16th of March. Enclosed for them was an SASE to return the completed summons to me. However, I haven’t received it from the sheriff yet. I called them to ask for them to send me a true copy of the return again, but they indicate they have no copy of the summons or any other paperwork, only the record of the deputy who served her and what the case number was. They are willing to send me a signed copy of their record of having served her but it won’t be on the back of a copy of the summons. Is that usable as proof of service?
The defendant has a history being highly vengeful and making everything as painful and difficult as possible in retribution. If there is any way to claim some process defect, the defendant will use it.
The clerk of the court wants a returned 3811 signed by the defendant with notarized affidavit or a returned summons with the back signed by a person legally authorized to serve process and with it served on her person. The court clerk is telling me that a 3811 signed by any other person, even at the same address, or other than a returned summons signed by a legal process server will be up to the judge to accept and that it may not be acceptable. The clerk is also saying that the summons is good for only 30 days and not 60. What is your advice as to what to do next?
Documentation of the sheriff’s service should suffice, I suggest you ask that the sheriff’s office execute an affidavit as to service.
I received an affidavit from the out-of-state Sheriff’s Department. The affidavit identifies the file number, the name of the complaint, the defendant by name and gives the date, time and location when and where the defendant was served.
It is notarized, but the notary did not use a seal or stamp or give the notary’s identifying number. Is that going to be a problem?
The Wake County clerk did not initially want to accept it, went back to some back office somewhere for about 10 minutes and then agreed to file it but stated that it would be up to the judge as to whether it would suffice to prove service of the complaint. I requested and received a court date.
On the back of the notice form, it allows for personal delivery to the defendant. What are the rules for personal delivery? Would sending a copy to the out-of-state Sheriff’s department be possible?
The affidavit should be sufficient to verify service if the notarization can be verified. Personal delivery by an out of state Sheriff would also be valid.
Thank you for all your advice here on this forum.
The judge accepted the out-of-state affidavit of service with the only comment being that she had to look at it briefly to ensure it was for the complaint in my case and the date of service. Its validity and the absence of a return summons, signed and so on, was not questioned.
I hope this thread helps others with similar problems.
Also, the judge noted that I filed an affidavit of service for the uncontested divorce hearing notice by certified mail with the return receipt. Although simply signing the notice on the back indicating that it is sent appears to be sufficient, I believe having an affidavit with return receipt for the hearing notice added to my credibility with the judge.
Thanks!
That is great, thank you for sharing your experience.