By: Akanksha A. Panicker
Depositions, testimony, discovery, and production of records and documents are always a core component of due process and the key to a fair and speedy trial. Mostly, all parties, witnesses, and potential evidence can be sourced in a local manner, is available within the same state. However, when a witness needs to be obtained from another country, a foreign subpoena is issued to compel the testimony or to produce the documents.
The Hague Service Convention makes it simpler to serve documents across countries, but subpoenas do not fall within this bracket. Service of subpoenas cannot technically be served in another country, and goes instead through the Hague Evidence Convention, wherein the process is decidedly more precise, and a little more complex.
Why the difference, then? This can be explained by the fact that subpoenas are mandatory compliance within their own jurisdiction, but once they move past that, they turn into a request. The scope of the subpoena then changes from a demand to a request once they’re outside their jurisdiction. Consequently, how subpoenas act under the Hague Evidence Convention actually corresponds to the process that surrounds the service of letters rogatory. In fact, if a country is not a part of the Hague Evidence Convention, then the subpoena is sent through Letter Rogatory like a summons or a complaint.
By: Akanksha A. Panicker
Service of process is essential for any case to move forward. Untimely or ineffective service of process effectively shuts down a case immediately, and ‘without proper service of process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named defendant.”
The provision of legal papers to other parties in a case is known as service, and this commences a case. It must be noted here that while service of papers is usually done in person, service of subsequent papers may be done through First Class Mail (pursuant to judges order or agreement made between parties). Adhering to the rules of service of process essentially gives notice of the existence of the case and effectuates the court’s jurisdiction over a person.
By: Akanksha A. Panicker
[1.1] EXPLAINING A PATERNITY CASE
It’s easy enough to identify a child’s birth mother, but what about paternity? A child born to parents not married to each other is considered not to have a legal father, unless the biological father signs an ‘Acknowledgement of Paternity.’ This is usually done at the hospital at the time of the child’s birth.
So, what exactly happens?
Voluntary Acknowledgment of Paternity (AOP) is a legal process through which paternity, or legal fatherhood, can be established. The father declares himself to be the child’s father, entering an ‘Order of Filiation’ which essentially is a court order declaring legal parenthood. A petition can be filed in Family Court seeking the same.
Paternity establishment ultimately is just the process of determining the legal father of a child. In New York, unmarried parents can establish paternity by [A.] signing a voluntary Acknowledgment of Paternity form; or [B.]by petitioning a court to determine paternity. The Acknowledgement of Paternity form is available from hospitals, local district child support offices, and local birth registrars.
By: Akanksha A. Panicker
Service of process essentially occurs when the party to a lawsuit notifies the other party as to the beginning of legal proceedings. This is done when appropriate notice of initial legal action as ordered by a court or a tribunal is sent to the party so that jurisdiction is exercised and the person has to respond to the proceeding before the court. The ‘process’ part of ‘service of process’ refers to the set of documents that is to be delivered, allowing for notice to be furnished.
Different jurisdictions mean different rules for an appropriate service of process. However, a summons and other related documents must be served upon the defendant personally. Sometimes, this might be relaxed, and service may be provided upon another person of suitable age and discretion at the person’s residence or place of business or employment. Service of process through the mail or through procedural rules and court order may be authorized. A prime example of the same is service by publication, done when an individual cannot be located in a particular jurisdiction. It must be understood that proper service of process establishes personal jurisdiction of the court on the individual served. Failure to participate by means that the person is in default, and relief may be granted to the petitioner. Service of process in cases filed in the United States District Courts is governed by Rule 4 of the Federal Rules of Civil Procedure
By: Akanksha A. Panicker
With COVID-19, courts have had to navigate through hitherto uncharted territory. It’s difficult to walk the line between tenant rights and landlord responsibilities, especially considering how hard the pandemic has hit everyone concerned. Consequently, judgements that are issued by court attempting to signal some clarity and change are to be lauded.
Recent decisions on landlord obligations also bring into question the obligations of tenants. New York landlords must follow specific state rules, such as complying with security deposit limits and the timeline and procedures for ending a tenancy. Failure to comply leads to costly financial difficulties and legal imbroglios. In the article below, pertinent cases relating to the impact of the coronavirus on creating a ‘livable environment’ will be discussed.
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DID YOU KNOW…
In addition to the designation of the secretary of state, each domestic limited liability company or authorized foreign limited liability company may designate a registered agent upon whom process against the limited liability company may be served. (b) The agent must be either: (1) a natural person who is a resident of this state or has a business address in this state; (2) a domestic limited liability company or an authorized foreign limited liability company; or (3) a domestic corporation or a foreign corporation authorized to do business in this state. (d) The registered agent of a limited liability company may resign as such agent. The registered agent shall file a certificate with the department of state entitled “Certificate of the resignation of the registered agent of… (name of limited liability company) under subdivision (d) of section three hundred two of the Limited Liability Company Law” and executed by such registered agent. Such certificate shall set forth: (1) the name of the limited liability company, and if it has been changed, the name under which it was formed. With respect to a foreign limited liability company, there shall be set forth its name and, if applicable, the fictitious name the foreign limited liability company has agreed to use in this state pursuant to section eight hundred two of this chapter; (2) the date the articles of organization or application for authority was filed by the department of state; (3) that he or she resigns as the registered agent of the limited liability company; and (4) that he or she has sent a copy of the certificate of resignation by registered mail to the limited liability company at the post office address on file with the department of state specified for the mailing of process or, if such address is the address of the registered agent, to the office of the limited liability company in the jurisdiction of its formation. (e) The designation of a registered agent shall terminate thirty days after the filing with the department of state of the certificate of resignation. A certificate designating a new registered agent may be delivered to the department of state by the limited liability company within the thirty days or thereafter.
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What is Process Service?
Process service, also known as “service of process,” is the procedure employed to give appropriate notice of initial legal action to another party (such as a defendant), court, or administrative body in an effort to exercise jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body, or other tribunal. Notice is furnished by delivering a set of court documents (called “process“) to the person to be served, process service is performed by a process server.
What is a Process Server?
A process server is a private citizen (i.e., retired judge, law enforcement, attorney, legal professional etc.) who meet the requirements within the state/county/country in which they operate. Their job is to deliver legal documents to federal, state, city agencies, corporations, private businesses and the general public, to inform them they are involved in a court action. These documents range from family court documents, (i.e., divorce, child support, custody, orders of protection etc.) supreme court documents (i.e., writs, subpoenas, summons and complaints etc.) and civil court documents (i.e., evictions, small claims issues etc.)
Was your money or property stolen? Were you hurt or stalked? Maybe your identity was taken? If so, you are a crime victim. If an arrest was made and the police told you that the case is going to court, you may have questions about the criminal case. A criminal case is not the same as a civil case. In a civil case, you start a court case for money or damages against the person who injured you. But, in a criminal case, you can’t bring criminal charges against the person that injured you. You go to the police and the police bring the criminal charges. Criminal cases are handled by a lawyer from the District Attorney’s Office on behalf of the People of the State of New York. The lawyer is called a prosecutor. As a crime victim you are not a party and you do not need to hire an attorney. What you have to say about what happened is part of the prosecutor’s case against the defendant. But, you do have certain rights in the case. If you are a crime victim, an immediate family member of a person who was killed, or an immediate family member or guardian of a child crime victim, this section is for you.
A person who sexually abuses a child under 18, can be punished in different ways in the courts. In a criminal case, the People of the State of New York charge the abuser with crimes to punish and possibly imprison them. In a civil case, the victim sues the abuser for money to make up for any harm caused by the sexual abuse.
There are laws that say how long after an event, a court case can be started based on those events. These laws are called Statutes of Limitations. Under the Child Victims Act, child sex abuse victims now have more time to seek justice against their abusers. CPLR 214-G, CPL 30.10(3)f.
Time Period for Starting Cases-There are different time periods for starting cases against the child sex abuser or the institution that covered up or was involved in the abuse. The time period depends on the type of case.