Blog post by David Swedelson, Condo Lawyer and HOA Attorney; Partner, SwedelsonGottlieb, Community Association Attorneys
In the latest example of courts’ unease with social media, a federal judge has refused a request by a bank to serve legal papers on an a defendant via Facebook. Why is this important? Because it is getting increasingly difficult to find some defendants, and in lawsuits, the law requires that the defendant be served with the lawsuit (service of process) or in the case of a delinquent owner, that they be served with notice of a board’s intent to foreclose. Sometimes we just can’t find the defendant (or delinquent owner) and this makes it difficult for associations to collect damages that the owner owes the association, delinquent assessments, seek a restraining order if the owner or their tenants violations of the governing documents etc.
Follow this link to an article regarding an order recently issued in a Federal Court where the judge said “service by Facebook is unorthodox to say the least” and told the bank to instead place ads in local newspapers in and around the area where the bank thought the woman resided. This would be what is called service by publication.
The bank is trying to sue a woman for identify theft and but can’t find her. The bank hired a detective who found four possible addresses as well as a Facebook profile that the bank thought belonged to their defendant. After failing to find the woman at any of the addresses, the bank asked the judge for permission to use alternate methods to serve her (normally, courts allow only a few ways to perform “service” – the process that lets a court know a defendant is aware of a lawsuit).
In rejecting the bank’s request to use Facebook, the Judge said “this Court is unaware of any other court that has authorized such service.” Facebook service isn’t unusual, however, in other places.
The article however points out that Courts in Australia and New Zealand all allow service via the social network and, in February 2012, the High Court in England allowed service by Facebook and Twitter.
It needs to be noted that the judge did indicate that the bank hadn’t proved that the Facebook profile belonged to the right person and that “the Court’s understanding is that anyone can make a Facebook profile using real, fake or incomplete information.” But as the article points out, “it’s interesting that the Judge didn’t note whether the public profile picture corresponded to the person in question. Also surprising is the Judge’s conclusion that “a local newspaper is the most likely means by which to apprise [the defendant].” While such papers are anchors of local communities, is it likely that a young woman who appears to be troubled and transient is reading those papers?”
As the use of social media grows, it is possible that judges in the future will allow publication of service of process or other legal notices. But for now, we still have to actually find the defendant.
David Swedelon can be contacted for comments or questions via email: firstname.lastname@example.org