Draft Memorandum – Service of Process Fee

I have prepared a draft memorandum on the subject of the new service of process fee the Sheriff is required to collect under IC 33-37-5-15(a) of $13 “from a party requesting service of a writ, an order, a process, a notice, a tax warrant, or any other paper completed by the sheriff.”

When you get a judgment that doesn’t get paid, you can initiate a “proceedings supplemental” where the debtor is supposed to appear to testify as to his or her income or assets. If the debtor fails to appear, generally a court will require a show cause hearing to be set where the debtor is to show cause why he or she shouldn’t be held in contempt. Typically if the person shows up at all for the show cause hearing, the court won’t hold the person in contempt since the person is now available for questioning about his or her income or assets which was the point in the first place.

It varies a little from court to court, but usually the practice is to have the Sheriff serve the person at the Proceeding Supplemental stage and to serve the person at the Rule to Show Cause stage. If the person doesn’t get served at either of those stages, nothing will happen. If the person gets served at both of those stages, a writ will issue for the person’s arrest.

This was a good system before the new Sheriff’s fee in that it provided protection to the judgment debtor – you can presumably take the word of the Sheriff’s deputy that the document at least got to the last known address and the Sheriff would tell you if the person clearly didn’t live there anymore. Because the service fee was all wrapped up into the initial filing fee, it didn’t place any undue burdens on the judgment creditor seeking to enforce a judgment.

Now, however, at $13 per served document, it could get rather expensive for judgment creditors to even attempt to collect on their judgments, particularly in the case of an un(der) employed debtor who likes to ignore court papers.

At this link, I have posted a draft memorandum I am contemplating providing to the judges before whom I practice advising them of the law which I believe supports my contention that service by ordinary mail is, in most cases, all that is required by the law and that the courts should forego the additional protections they have afforded to judgment debtors because of the significant extra cost it will impose on judgment creditors.

By draft, I mean draft. I have not edited any of it yet. Hopefully, I’ll be able to insert some links for the relevant citations. But if any of you folks have interest in the subject and/or have knowledge of the arcana of Rules, Writs, and Citations, I would certainly appreciate any input.