Service Of Summons And Complaints: New And Improved Ways To Serve Debtors/Defendants With Summons And Complaint

By James R. Vann
Attorney at Law


The North Carolina General Assembly has passed new legislation which gives Creditors/Plaintiffs an alternative way to serve a Debtor/Defendant with legal documents.  How many times have you or your attorney been forced to chase a Debtor/Defendant in order to have the Debtor/Defendant served with a summons and complaint?

Over the last few years, successful service of summons and complaint via the United States Postal Service has become increasingly difficult.   All too often, the wary Debtor/Defendant refuses to accept certified or registered  mail in an attempt to avoid service.  All to often, the Sheriff is unable to serve the Debtor/Defendant with the summons and complaint.  Valuable time is wasted.

Prior to the enactment of this new legislation, service of summons and complaints on a individual in North Carolina had been accomplished by either personal delivery, or by leaving copies of the summons and complaint at the Debtor/Defendant=s dwelling with a person of suitable age and discretion, or by delivery to an authorized agent of the Debtor/Defendant, or delivery via registered or certified mail.  Service of summons and complaints on a Corporation in North Carolina has historically been accomplished by either serving a copy of the summons and complaint to an officer, director, or managing agent of the Corporation, or by leaving copies of the summons and complaint in the office of such officer, director or managing agent with the person who is apparently in charge of the office, or by serving the officer, director, or managing agent by registered or certified mail.

The North Carolina General Assembly has responded to this problem by enacting new legislation which expands the options available to Creditors/Plaintiffs.  The new legislation takes effect October 1, 200l.  It permits service of summons and complaints to be completed by depositing with a designated delivery service authorized pursuant to 26 U.S.C.' 7502(f)(2), a copy of the summons and complaint, addressed to the party to be served, delivering to the addressee, and obtaining a delivery receipt.

The statute reference, 26 U.S.C.' 7502(f)(2), allows the Internal Revenue Service to designate certain private companies for delivery.  The guidelines a delivery company must meet in order  to be designated are outlined in the statute and provide that the delivery company:

  1. be available to the general public;
  2. be at least as timely and reliable as the United States Postal Service; and
  3. records electronically to its data base, or marks on cover of the package the date the package was handed over for delivery.

Four companies have been approved for delivery under Notice 99-41.  The companies and their selected services are as follows:

  1. Airborne Express (Airborne) - Overnight Air Express Service/Next Afternoon Service/Second Day Service
  2. DHL Worldwide Express (DHL) - DHL A Same Day Service/DHL USA Overnight
  3. Federal Express (FedEx) - FedEx Priority Overnight/FedEx Standard Overnight/FedEx 2 Day
  4. United Parcel Service (UPS) - UPS Next Day Air/UPS Next Day Air Saver/UPS 2nd Day Air/UPS 2nd Day Air A.M.

By allowing the Creditor/Plaintiff alternative methods of service of summons and complaints, the General Assembly has given the Creditor/Plaintiff a highly effective and powerful new tool.  Using the companies which have been approved for delivery will decrease the possibility of Debtors/Defendants avoiding service.  Furthermore, this alternative method of service shall decrease the costs associated with personal service of process.  It is our hope that Debtors/Defendants will sign for delivery of packages from approved delivery companies without considering that a lawsuit might be enclosed in the package.  What a surprise for them and what a great help to the Creditor.

If you have any questions concerning the new legislation, contact your Attorney or feel free to contact our office for further assistance.

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