Kentucky’s rules governing service of process in civil actions are unique and potentially burdensome to plaintiffs. Whatever method of service is chosen is fraught with risks of delay and noncompliance, whether through personal service, service on corporations, or constructive service through warning order attorneys.
Despite that it is one the great strengths of our jurisprudence, the requirement that defendants be served with process can also cause great delay in prosecuting foreclosures and other civil actions. This is especially true in states like Kentucky where the summons and complaint must be physically handed to the party to complete personal service. The primary processes by which personal service on defendants are obtained are set forth in rules of civil procedure 4.01 to 4.04 and broken down as follows:
- A competent, adult individual resident of Kentucky must be served personally, either via certified mail, return receipt requested or by a person authorized to serve them. The county sheriff typically does this, though in some circumstances, the appointment of a special bailiff is possible.
- Service on resident adult individuals adjudicated incompetent and/or minor children is completed by personal service on the guardian and/or parent of the named defendant, if known. If the guardian/parent is not known, a guardian ad litem must be appointed to represent the defendant at the plaintiff’s expense.
- Service on a resident partnership or unincorporated association is completed by personal service to a partner or managing agent thereof.
- Service on a resident corporation is made by personal service on the registered agent thereof.
- Service on a county is made by serving the county judge or county attorney if the judge is not a resident of the county.
- Service on a city is made by serving the chief executive officer of the city.
In addition, the Kentucky statutes have provided for means of service other than those set forth in the rules of civil procedure. KRS 14A.4-040 calls for service on a resident corporation or partnership through its agent registered for service of process. However, if such service fails, the statutes allow for service to be completed by mailing the summons and complaint by certified mail to any officer or managing agent at the corporation or partnership’s principal office. Service is deemed complete on the earliest of 1) the date the mail was received by the corporation or partnership; 2) the date shown on the return receipt; or 3) five days after its deposit with the U.S. Mail.
Further, KRS 454.210, Kentucky’s Long Arm Statute, governs service on those parties who are located out of state but meet the transaction requirements which give Kentucky jurisdiction. Service on these parties is made through the Kentucky Secretary of State and is perfected upon the filing of the Secretary of State’s service report with the court.
In the event that personal service is not successful, the rules of civil procedure allow for constructive service on parties, so long as certain criteria are met. While many states use public advertisement in local newspapers for constructive service, Kentucky uses warning order attorneys. Attorneys are appointed solely to attempt contact with the party and inform them of the pending lawsuit. A warning order attorney does not represent the party in any capacity unless that party requests representation and the warning order attorney agrees.
A warning order attorney is appointed after the plaintiff executes an affidavit making the request. The warning order attorney then has 50 days to attempt to locate and inform the party of the pending lawsuit and file a report setting forth the steps taken to notify the party, whether the notification was successful, and whether there are any defenses available. Service is deemed complete 30 days after entry of the warning order attorney. However, no judgment may be sought until the report of the warning order attorney is filed with the court.
Impact on Foreclosures
The primary impact of service on foreclosures is the delay it can cause. First, borrower defendants who know they are in default may try to avoid service to delay the process. As the summons and complaint must be physically handed to them, it is easier to avoid service in Kentucky. In these situations, constructive service must often be sought which causes a minimum delay of 50 days, assuming the warning order attorney complies with the requirements of the civil rules by timely filing a report. If the warning order attorney fails to take the steps required by the civil rules, another warning order attorney must be appointed and the service clock starts anew.
Second, as to resident businesses, service must be obtained on the registered agent. This service often takes place via certified mail, restricted delivery, and the postal worker who delivers the mail may not know of this requirement and therefore may fail to comply with it. Often, the summons and complaint are delivered to the first individual seen by the postal worker, and if this is not the registered agent, service must be re-issued.
Finally, service to non-residents, which occurs via the Secretary of State, can be delayed due to filing error. Service via this method is not complete until the report of the Secretary of State is filed with the court. If this report is not prepared or is placed in the wrong file, service is not deemed complete and must be re-issued.
Kentucky is unique in its service requirements and what makes it unique can make it more difficult to expeditiously navigate. Unfortunately, many of the errors with service occur outside of the control of plaintiff’s counsel. With that said, MDK is always working on ways to increase efficiency and accuracy and decrease the delays caused in this portion of the foreclosure action.