"service by publication" WA state requirements?

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Latest post Thu, Apr 14 2016 7:32 AM by mkahler. 21 replies.
  • Wed, Feb 17 2016 12:46 PM

    • mkahler
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    "service by publication" WA state requirements?

    I have an active small claims case in Snohomish County, WA.  Even though I hired a professional service company, they were unable to serve the notice of claim due to the defendant concealing himself and/or refusing to accept the notice.  The service company made phone contact with him, yet he still refuses to be served.

    I attended the mitigation (pre-trial) hearing today and the judge did not perceive the 8 failed service attempts as adequate.  I asked to be granted "service by publication" knowing the defendant was going to be sly.  She agreed, although she said "there are stipulations", but would not elaborate (she said she "could not give me legal advice").

    The court clerk simply told me to take the notice of the next court date to the local newspaper.  I did, but they were completely unfamiliar with the requirements for a small claims notice.  I was hoping they would be verse in the process.  I spoke with the person in the legal notices department there.

    I found RCW 12.04.100 "Service by Publication" http://app.leg.wa.gov/RCW/default.aspx?cite=12.04.100 which clearly describes a format, content, timeframe, and # of publications for this activity.  But I have no confirmation this is what the (small claims) judge wanted.

    Can anyone confirm if 12.04.100 is the proper prescription for WA State Snohomish County Small Claims "Service by Publication"?  It is either this, or I simply publish the text of the small claims applcation form, but that seems less formal (although would be exactly what would be hand delivered if personal service was an option).  The textual content & implications of 12.04.100 is quite different.

  • Wed, Feb 17 2016 1:09 PM In reply to

    Re: "service by publication" WA state requirements?

    No one here is going to be able to tell you if your judge expects something beyond or different than what the statute requires.

  • Wed, Feb 17 2016 1:16 PM In reply to

    • mkahler
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    Re: "service by publication" WA state requirements?

    Sorry for the unclear request - I don't want to know if the statute is different than what the judge wants.  I need to know if RCW  12.04.100 is indeed the right statute for small claims "service by publication".  That is what the judge would not tell me, what statute to follow.

  • Wed, Feb 17 2016 2:35 PM In reply to

    Re: "service by publication" WA state requirements?

    You should know that I'm not a lawyer, but I think that is the right statute.

  • Wed, Feb 17 2016 4:16 PM In reply to

    Re: "service by publication" WA state requirements?

    Look at RCW 4.28.100 and 4.28.110. 

  • Thu, Feb 18 2016 9:32 AM In reply to

    Re: "service by publication" WA state requirements?

    Take a look at this:  http://www.courts.wa.gov/newsinfo/resources/?altMenu=smal&fa=newsinfo_jury.Scc

    If none of the RCW chapters cited contain anything different, then the section you've cited is probably what you need to do.

  • Thu, Feb 18 2016 1:24 PM In reply to

    Re: "service by publication" WA state requirements?

    mkahler:
    I need to know if RCW  12.04.100 is indeed the right statute for small claims "service by publication".

    I think JamyeP has the right RCW, actually.  RCW 4.28 is referenced in the small claims court information that ca19lawyer2 linked to, and RCW 12.04 is not.  Also, I didn't notice this before, but it looks like the advertisement template in 12.04 is meant to be issued by a J.P., not by the plaintiff.

    So if I were in your shoes, I'd follow the requirements of RCW 4.28.110 (editing out the references to attorneys and substituting my own name and mailing address unless I actually HAD an attorney).

    I assume you or your process server has already tried the method described in RCW 4.28.080(17), which looks a lot quicker and easier if you have his address and he has other adults living there with him or he is renting.

  • Thu, Feb 18 2016 2:40 PM In reply to

    • mkahler
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    Re: "service by publication" WA state requirements?

    I'm starting to see your ways.  I was driven to RCW 12.04 being RCW 12 is "district court" chapter and small claims is part of the DC.  The small claims info also clearly describes the "failure to appear" logic and default judgement action, just like the text of 12.04.100 notice includes. 

    But now I find this at:  http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=clj&set=CRLJ&ruleid=cljcrlj04  , which was arrived at from the WA Small Claims info website:

      (e) Service by Publication and Personal Service Out of the Jurisdiction.
    
        (1) When the defendant cannot be found within the territorial jurisdiction of the court ...
        (ii) when the defendant, being a resident of the county, has
    departed therefrom with intent to defraud his creditors, or to
    avoid the service of a notice and complaint, or keeps himself
    concealed therein with like intent;

    ^^^^^ the above had already been proven

    followed by:
    (2) The publication shall be made in the same manner and in the same form as a summons by publication in superior court (see RCW 4.28.100), with appropriate adjustments for the name and location of the court.

    The superior court verbiage in 4.28.110 concerned me at first glance, but now I see specific direction to use that ayways (with adjustments), as above.

    Problem now is.....

    4.28.110 text specifies a "within 60 days" timeframe, whereas I have already been given an appearance date that is < 30 days away. I suspect my prescribed appearance date is just substituted for that "within 60 days" verbiage.

    4.28.110 does not specify a schedule for publication like 12.04.100 does (i.e., "3 consecutive weeks, beginning no later than...").  But it should be adequate to go with the text from 4.28.110 and use the schedule/# of publications from 12.04.100, given that is still connected with district court actions.  Also, the scheduled me 4 weeks out, lending credence to allowing 3 weeks of publication.

    re: RCW 4.28.080, I wish that were an option, but this person is committed to concealing himself from this and other actions.  Publication may be expensive, but at least it is guaranteed proof of service.  And the judge has already granted me permission to proceed with publication.

  • Fri, Feb 19 2016 6:37 AM In reply to

    • Drew
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    Re: "service by publication" WA state requirements?

    Publication around me is a bit tricky as to must be in legal notices with added proof..and it's sort of a profit maker for papers .like hefty bill for small insert ...so take care...gotta follow rules...and there are some odd newspapers out there that qualify ....it's all about doing it by the rules of your jurisdiction 

     

    BTW even if you get a judgement ..so you have odds to collect on it? 

     



  • Fri, Feb 19 2016 6:48 AM In reply to

    Re: "service by publication" WA state requirements?

    mkahler:
    4.28.110 does not specify a schedule for publication

    Yes it does. It's the very first sentence "The publication shall be made in a newspaper of general circulation in the county where the action is brought once a week for six consecutive weeks"

  • Fri, Feb 19 2016 7:14 AM In reply to

    • mkahler
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    Re: "service by publication" WA state requirements?

    Indeed it does say six weeks.  That's a problem - the judge allowed me "service by publication" and scheduled the hearing 5 weeks out.  How can I be epxected to publish for six consecutive weeks if the hearing is only 5 weeks away?  I can understand 6 weeks is doable if using the "within 60 days" verbiage original to the .110 superior court RCW. 

    Further info....when I requested "Service by publication", the judge consulted her calendar and the clerk and agreed "the next publication hearing is (the date 5 weeks out)". That is the date she gave me.  That seems to allow for the publishing of 3 consecuive weeks, as called out in the district court rules....i.e., RCW 12.04.100 Service by publication.

    I best go to the clerk and point out the situation.  Worst case, she can schedule 2+ weeks further out and I have to publish for 6 weeks (double the bill!).

     

     

  • Fri, Feb 19 2016 7:21 AM In reply to

    • mkahler
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    Re: "service by publication" WA state requirements?

    Agreed, I need this to be right, or it's all for naught. 

    Regarding judgement, the defendant has a career employment status and will be (relatively) easy to garnish.  Yes, there will be costs involved, but those are recoverable per the terms of the court  http://snohomishcountywa.gov/543/Collecting-Judgment

     

     

     

     

  • Fri, Feb 19 2016 9:03 AM In reply to

    • Drew
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    Re: "service by publication" WA state requirements?

    If he has career employment status..why not find and serve him at work.....? 



  • Fri, Feb 19 2016 9:38 AM In reply to

    • mkahler
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    Re: "service by publication" WA state requirements?

    I did float the idea of "place of employment" with the judge, but got the impression the notice would still need to be personally delivered to the defendant, using the employment address instead of the residence address.  But the defendant works "in the field" and hence would never be personally found there.  If the employer could be considered his "Agent", I would have the notice delivered to the office, but again, the judge indicated he needs to be personally served.  And RCW 4.28.080 specifically states "place of employment" is not an allowable substitute for mailing or second-hand delivery.

    This is truly an exercise in patience, and the defendant is no stranger to concealing himself in these matters.

    I have faith in "notice by publication", just need to get it right, and wait it out.

     

     

  • Fri, Feb 19 2016 10:20 AM In reply to

    • Drew
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    Re: "service by publication" WA state requirements?

    Not to be funny..but what kind of field work....might not be too hard to track him down "in field." 



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