Administrative Rules of Montana › Department 2 - ADMINISTRATION › Chapter 2.59 - BANKING AND FINANCIAL INSTITUTIONS › Subchapter 2.59.3 - Consumer Loan Licensees › Rule 2.59.309 - SERVICE OF PROCESS

Current through Register Vol. 13, July 5, 2024
(1) The written
				notice required under
				32-5-207(1), MCA,
				constitutes process under the Montana Administrative Procedure Act, Title 2,
				chapter 4, part 6, MCA. The mailing of the notice to a person by certified mail
				under 32-5-207(2), MCA,
				constitutes effective "service of process" if a return receipt signed by the
				recipient, who need not be the same person as the addressee, has been returned
				to and retained by the department as proof of service.
(2) If a certified mail item mailed to a
				person other than an individual is returned to the department marked
				"unclaimed" after two notices to claim the item have been given by the United
				States Postal Service in accordance with established procedures for certified
				mail, the department shall have a sheriff or other process server attempt
				personal service upon the person at the same address for which the certified
				mail item went unclaimed. If that is unsuccessful, the department may, but is
				not required to, attempt personal service at any other address at which the
				department reasonably believes the person may be found. If personal service
				fails, the person is deemed to have been effectively served by operation of law
				under 32-5-207, MCA.
(3) If a certified mail item mailed to an
				individual is returned to the department marked "unclaimed," then the
				department may attempt service on the individual at the same address by regular
				mail with enclosed notice and acknowledgment of service under Rule 4(d)(3),
				Montana Rules of Civil Procedure (M.R.Civ.P.)
(4) If a certified mail item mailed to a
				person is returned to the department marked "undeliverable," "left no
				forwarding address," "forwarding address expired," or similar basis for
				nondelivery, the department shall use best efforts to locate another address
				for the person to be served and attempt service by certified mail there. If the
				certified mail item mailed to a person other than an individual is returned
				marked "unclaimed," the procedures in (2) apply. If a certified mail item
				mailed to an individual is returned marked "unclaimed," the procedures in (3)
				apply. If the certified mail item to a person other than an individual or a
				certified mail item to an individual is returned marked "undeliverable," "left
				no forwarding address," "forwarding address expired," or similar basis for
				nondelivery, the person or individual is deemed to have been effectively served
				by operation of law under
				32-5-207, MCA.
(5) For purposes of this rule, "best efforts"
				means efforts that are reasonable under the totality of circumstances, i.e.,
				reasonably calculated to give actual notice to the person being served. The
				term does not mean that heroic or extraordinary efforts must be made or that
				only actual notice by perfected Rule 4, M.R.Civ.P. service must ultimately be
				accomplished.
(6) Where there is no
				proof of perfected service under this rule, the department shall consider the
				following circumstances in determining whether to enter a person's default:
(a) what attempts were made to perfect
				service;
(b) whether and to what
				extent perfected service is practical in any given case;
(c) whether any attempts were made to contact
				the person by telephone or means other than by mail;
(d) whether the department knows that the
				person is located at a particular place other than the address(es) at which
				attempted service was made; and
(e)
				whether the person has actual or imputed knowledge of the notice or the process
				or pendency of the administrative action without service having been
				perfected.