Miserandino v. Resort Properties, Inc.

JOHN F. McAULIFFE, Judge, Specially Assigned. This case involves a constitutional attack by judgment debtors against a judgment entered against them by a state trial court in Virginia. The collateral attack on the judgment was made in the Circuit Court for Carroll County, Maryland, where the judgment creditor sought to enforce the judgment.

The defendants challenge the basis for the exercise of long-arm personal jurisdiction by the Virginia court, as well as the constitutional sufficiency of the Virginia statutory scheme for the giving of notice to nonresidents proceeded against under that Commonwealth’s long-arm jurisdiction statute. I. FACTS Pursuant to the Uniform Enforcement of Foreign Judgments Act, Sections 11-801 to 807 of the Courts and Judicial Proceedings Article, Md. code (1957, 1989 Repl. Vol., 1992 Cum. Supp.), Resort Properties, Inc. (Resort), filed a judgment against Gerard and Karen Miserandino, (defendants) in the Circuit Court for Carroll County on June 3, 1993. The notice of filing of judgment, mailed by a court clerk to the defendants, simply informed them that a judgment of $4,211.82 against them had been filed by Resort.

Thereafter, the defendants filed a motion to strike the entry of the foreign judgment. From their inspection of the court’s file, the defendants knew that the judgment was obtained in Warren County, Virginia and that Resort was the assignee of North Fork Shenandoah Vacations, Inc. In the motion, the defendants alleged by affidavit made on personal knowledge that they were not served with process, had no notice, and did not appear in the Virginia action. They alleged further, that: Defendants were not subject to the jurisdiction of said Virginia Court in said action, nor was either of them....

Said foreign judgment is invalid, null, void and of no effect since said Virginia Court lacked in personam jurisdiction over defendants, or either of them, in the action in which that judgment was entered. Specifically, the motion alleged that neither of the defendants resides in Virginia, neither is domiciled in Virginia, neither is employed in Virginia, carries on any regular business, occupation, or vocation in Virginia, or maintains a principal place of business in Virginia. Finally, they alleged: Defendants do not have sufficient contacts with Virginia to confer in personam jurisdiction over them, or either of them, upon the Virginia court in which said foreign judgment was entered. In an accompanying memorandum, the defendants argued that they did not have sufficient contacts with Virginia to “satisfy traditional notions of fair play and substantial justice,” quoting Pennoyer v.

Neff, 95 U.S. 714, 24 L.Ed. 565 (1877). In opposition, Resort stated: “The underlying transaction was based upon the defendants having an interest in and possessing real property in Virginia, and the transaction in and of itself constituted transacting business by the defendants in Virginia.” Resort also averred, “Defendants executed a loan application in July, 1988, in Virginia for an interest in real property which was located in Virginia, thereby confessing fees and jurisdiction over both defendants in the State of Virginia.” At the hearing of defendants’ motion, Resort’s attorney informed the court that he had a loan application, club membership contract, and deed in his file, and that he was willing to provide the court with copies. The court interrupted and there ensued an exchange between the judge and the defendants’ attorney, Mr. Lipsitz, as follows: THE COURT: Well ... I’m not sure Mr.

Lipsitz has any problem with the fact that there was property purchased, or a loan made, or a contract made in West (sic) Virginia____ MR. LIPSITZ: Well, I’m not pressing that point today, your Honor.... I raise the issue because, frankly, until this morning, I had no idea what the claim was. You can’t—from the record ... you really can’t tell what the claim is.... If my people, in fact, own property in Virginia, and if this transaction involved that—is involved in this case, I probably would not prevail on the in personam jurisdiction point. Nevertheless, the service point is the critical point..... I’m willing to accept my brother’s statement as to what he says is in his file ... THE COURT: For purposes of the hearing (inaudible). MR. LIPSITZ: ... that’s something that could be thrashed out at a trial on the merits ... maybe they’re subject to jurisdiction; maybe they’re not.

The court initially granted the defendants’ motion to strike. Resort filed a motion to alter or amend because the court had cited the wrong statute in its order. After a second hearing, the court reversed its ruling and recorded the judgment against the defendants. The Court of Special Appeals affirmed in an unreported opinion, and this Court granted certiorari. II. PERSONAL JURISDICTION Virginia, like Maryland, has interpreted its long-arm statute as an attempt to assert jurisdiction to the extent possible under the Due Process Clause of the federal Constitution.

Brown v. American Broadcasting Co., Inc., 704 F.2d 1296 (4th Cir.1983). Section 8.01-328.1 of the Virginia Code (1950, 1992 Rep. Vol.) provides that: A court may exercise personal jurisdiction over a person ... as to a cause of action arising from the person’s: 1.

Transacting any business in this Commonwealth; # ^ H* sH 6. Having any interest in, using, or possessing real property in the Commonwealth. We note initially that the defendants had the burden of producing evidence to attack the judgment sought to be recorded. In Maryland, an authenticated copy of a record is prima facie evidence of jurisdiction and the judgment or decree must be presumed valid until it is declared invalid by a competent court.

Imperial Hotel v. Bell Atlantic, 91 Md.App. 266, 271-72, 603 A.2d 1371 (1992). In Brewster v. Brewster, 204 Md. 501, 105 A.2d 232 (1954), the Court considered the issue of a divorce obtained by the husband in Arkansas and another divorce obtained by the wife in Maryland.

The wife argued the Arkansas divorce should not take effect until she was given an opportunity to prove it invalid. The court ruled, however, that “until [the foreign judgment] is declared to be invalid by a competent court, it must be presumed to be valid and given full faith and credit.... The burden of proof is upon the attacker.” Id. at 505, 105 A.2d 232. See also Van Wagenberg v.

Van Wagenberg, 241 Md. 154, 160, 215 A.2d 812 (1966). As noted, defendants offered no evidence to contradict the basis of long-arm jurisdiction asserted by Resort. To exercise personal jurisdiction over a defendant who is not present in the forum state, “due process requires only that ... [the defendant] have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). “[T]he quality, and quantity of contacts required to support the exercise of personal jurisdiction” depend upon the facts of each particular case.

Camelback Ski Corp. v. Behning, 312 Md. 330, 338, 539 A.2d 1107 (1988), cert. denied, 488 U.S. 849, 109 S.Ct. 130, 102 L.Ed.2d 103 (1988). Ordinarily, cases involve either “general jurisdiction” where the cause of action is unrelated to the defendant’s contact with the forum state, or “specific jurisdiction” where the cause of action arises out of the defendant’s contacts with the forum state. Id.

Generally speaking, when the cause of action does not arise out of, or is not directly related to, the conduct of the defendant within the forum, contacts reflecting continuous or systematic... conduct will be required to sustain jurisdiction. On the other hand, when the cause of action arises out of the contacts that the defendant had with the forum, it may be entirely fair to permit the exercise of jurisdiction as to that claim. Id. at 338-39, 539 A.2d 1107. The defendants’ allegations were insufficient to raise an actual controversy regarding the Virginia court’s personal jurisdiction.

If this were a “general jurisdiction” case, their assertion that they did not reside in Virginia or conduct business regularly in Virginia may have been sufficient to raise an actual controversy. See International Shoe, supra, 326 U.S. at 317, 66 S.Ct. at 158-59. This case, however, may be classified as a “specific jurisdiction” case because Resort’s cause of action arises out of the defendants’ contacts with Virginia, signing a contract and allegedly purchasing an interest in property in that jurisdiction. Thus, under the facts of this case, the defendants’ allegations did not raise an actual controversy regarding the existence of a sufficient basis for the exercise of personal jurisdiction.

In a suit arising out of a contract signed in the forum state, the contract plus other factors provide a sufficient basis for the exercise of personal jurisdiction in the forum state. In McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), the Supreme Court ruled that a Texas insurance company was amenable to suit in California because the insured was domiciled in California and the suit arose under the insurance contract. “It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State.” Id. at 223, 78 S.Ct. at 201.

Other factors, however, such as ongoing relationship with the party in the forum state, are required to establish “minimum contacts.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478-79, 105 S.Ct. 2174, 2185-86, 85 L.Ed.2d 528 (1985). In this case, the defendants never alleged or proved that they did not sign a contract in Virginia, that this case did not arise out of a contract signed in Virginia, or that there were no other factors to support personal jurisdiction. In any event, it is clear from the colloquy we set forth in Section 1, supra, that for present purposes the defendants waived any attack they may have had against the assertion of personal jurisdiction under the Virginia long-arm statute, and acquiesced in the statement of counsel for the plaintiff that the documentary evidence he proffered would be sufficient to show a proper ground for the exercise of that jurisdiction.

Any issues that might have been raised as to the sufficiency of the plaintiffs’ original pleadings in Virginia, or as to the grounds for personal jurisdiction, were effectively waived for purposes of the circuit court hearing. III. ADEQUACY OF NOTICE The more difficult question with respect to the acquisition of personal jurisdiction by the Virginia court involves the constitutional adequacy of the means employed to give notice to the defendants. The procedure followed by the plaintiff was in accordance with the Virginia statute prescribing the method of service of process upon a nonresident individual in a case involving long-arm jurisdiction, but that will not be sufficient to confer jurisdiction unless the method authorized by the statute comports with the requirements of federal due process. Thus, we are required to address a question not yet resolved by the United States Supreme Court, and only rarely considered by other federal and state courts: whether initial and original service of process by first-class mail is constitutionally sufficient to confer in personam jurisdiction over a nonresident individual in a long-arm jurisdiction case. The Due Process Clause of the 14th Amendment “at a minimum ... require[s] that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v.

Central Hanover Bank & Tr. Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-57, 94 L.Ed. 865 (1950). The importance of giving adequate notice cannot be overstated. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.

Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 171-72, 71 S.Ct. 624, 649, 95 L.Ed. 817 (1951), Frankfurter, J. concurring (footnote omitted). No particular procedure is required in all cases. “On the contrary, due process is flexible and calls only for such procedural protections as the particular situation demands.

Procedures adequate under one set of facts may not be sufficient in a different situation.” Department of Transportation v. Armacost, 299 Md. 392, 416, 474 A.2d 191 (1984). See also, Golden Sands Club v. Waller, 313 Md. 484, 493, 545 A.2d 1332 (1988) (Maryland Contract Lien Act, requiring notice of lien to condominium unit owners by certified or registered mail, return receipt requested, satisfies due process). To determine whether notice in a particular case is constitutionally sufficient, the court “must balance the interests of the state or the giver of notice against the individual interest sought to be protected by the fourteenth amendment.” Golden Sands, supra, 313 Md. at 496, 545 A.2d 1332; see also, Mullane, 339 U.S. at 314, 70 S.Ct. at 657; Armacost, 299 Md. at 416, 474 A.2d 191.

At a minimum, the notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U.S. at 314, 70 S.Ct. at 657. Among the multiple factors to be considered in determining what process is due in a given situation is the nature of the action being brought. What is a sufficient method of notification depends upon the nature of the action and the circumstances. The interests to be considered are, on the one hand, those of the state and of the plaintiff in bringing the issues involved to a final settlement and, on the other hand, those of the defendant in being afforded an opportunity to defend.

The practicalities of the situation must be considered. A state is not precluded from exercising such judicial jurisdiction as it may possess by the fact that under the circumstances it is impossible to make certain that notice will reach the defendant or because the only sure way of giving notice to the defendant would be so burdensome and expensive as to be impracticable. On the other hand, when actual notice is practicable, a procedure which is a mere gesture is not enough. A method of notification which would be sufficient in some circumstances may be insufficient in others because another method would obviously be better calculated to give the defendant knowledge of the action. Restatement (Second) of Conflict of Laws § 25 cmt. d. (1971). Although the distinction between in rem and in personam actions no longer offers a per se solution to problems of notice, the nature of the action continues to be relevant. [W]e decline to resolve the constitutional question based upon the determination of whether the particular action is more properly characterized as one in rem or in personam. ... That is not to say that the nature of the action has no bearing on a constitutional assessment of the reasonableness of the procedures employed.

The character of the action reflects the extent to which the court purports to extend its power, and thus may roughly describe the scope of potential adverse consequences to the person claiming a right to more effective notice. Greene v. Lindsey, 456 U.S. 444, 450, 102 S.Ct. 1874, 1878, 72 L.Ed.2d 249 (1982). The Supreme Court has recognized that when an action involves property, the state may indulge certain assumptions.

The ways of an owner with tangible property are such that he usually arranges means to learn of any direct attack upon his possessory or proprietary rights. Hence, libel of a ship, attachment of a chattel or entry upon real estate in the . name of law may reasonably be expected to come promptly to the owner’s attention. When the state within which the owner has located such property seizes it for some reason, publication or posting affords an additional measure of notification. A state may indulge the assumption that one who has left tangible property in the state either has abandoned it, in which case proceedings against it deprive him of nothing ... or that he has left some caretaker under a duty to let him know that it is being jeopardized.... As phrased long ago by Chief Justice Marshall in The Mary, 9 Cranch 126, 144, 3 L.Ed. 678 ‘it is the part of common prudence for all those who have any interest in [a thing], to guard that interest by persons who are in a situation to protect it.’ Mullane, supra, 339 U.S. at 316, 70 S.Ct. at 658.

More recently, the Court said: It is, of course, reasonable to assume that a property owner will maintain superintendence of his property, and to presume that actions physically disturbing his holdings will come to his attention. Greene v. Lindsey, 456 U.S. at 451, 102 S.Ct. at 1879. For a further discussion of the “caretaker assumption” see R.

Greenbaum, The Postman Never Rings Twice: The Constitutionality Of Process By Posting After Greene V. Lindsey, 33 Am. Univ.L.R. 601, 616-20 (1984). When the nature of a case involved judicial settlements by the trustee of a common trust fund embracing 113 trusts with resident and nonresident beneficiaries, the Supreme Court held that personal service of notice of the accounting would not be required.

This type of trust presupposes a large number of small interests. The individual interest does not stand alone but is identical with that of a class. The rights of each in the integrity of the fund and the fidelity of the trustee are shared by many other beneficiaries. Therefore notice reasonably certain to reach most of those interested in objecting is likely to safeguard the interest of all, since any objection sustained would inure to the benefit of all.

We think that under such circumstances reasonable risks that notice might not actually reach every beneficiary are justifiable. Mullane, supra, 339 U.S. at 319, 70 S.Ct. at 659-60. The Court held, however, that newspaper publication alone was insufficient “not because in fact it fails to reach everyone, but because under the circumstances it is not reasonably calculated to reach those who could easily be informed by other means at hand.” Id. The case before us is not in rem or quasi in rem.

This case involves an attempt by one party to obtain a money judgment against another party or parties for an alleged breach of a promise to pay. It is a classic example of a case requiring the acquisition of in personam jurisdiction. Historically, in-hand delivery of process has been the preferred method of service in a case of this kind, but equivalent methods have been approved and alternative methods may be utilized when personal service proves difficult or impossible. In Maryland, the method of service of process ordinarily required to obtain original personal jurisdiction over a resident or nonresident individual is by personal delivery, or by certified mail with restricted delivery and return receipt stating to whom delivered and the date and address of delivery.

Maryland Rule 2-121(a). Additionally, personal service outside the state may be made “in the manner prescribed by the court or prescribed by the foreign jurisdiction if reasonably calculated to give actual notice.” Id. Substituted service is permitted when a defendant has acted to evade service;1 when a person resists service by threats, or force;2 or when good faith efforts to serve the defendant in person or by certified mail have not succeeded.3 In the case before us, there is no indication that any earlier attempt of service had been made, or that the defendants were attempting to avoid or resist service. Accordingly, the method of service utilized in this case, service by first-class mail, would not have been sufficient under Maryland law.

That fact is of no consequence, however, if the method of service satisfies the requirements of due process, because the service of process was in accordance with the applicable Virginia statute. Section 8.01-329 of the Code of Virginia (1950, 1992 Repl. Vol.) provides an alternative method of service of process on a nonresident subject to long-arm jurisdiction by service “on the Secretary of the Commonwealth of Virginia ... who, for this purpose, shall be deemed to be the statutory agent of such person.” That section of the code further provides that service on the Secretary shall be sufficient upon the person to be served, provided that notice of such service, a copy of the process or notice, and a copy of the affidavit are forthwith mailed, by the Secretary to the person or persons to be served at the last known post-office address of such person, and a certificate of compliance herewith by the Secretary or someone designated by him for that purpose and having knowledge of such compliance, shall be forthwith filed with the papers in the action. The concept of serving a state officer or agency in connection with the acquisition of personal jurisdiction over a nonresident dates to the era of Pennoyer v.

Neff, supra, when it was held that in personam jurisdiction could be acquired only by service made within the state. With the subsequent recognition of long-arm jurisdiction the necessity for service within the state disappeared, and resort to the legal fiction of “consent” to service on a local agent or “appointment” of a local agent for service was no longer necessary. See Olberding v. Illinois Central R.

Co., 346 U.S. 338, 74 S.Ct. 83, 98 L.Ed. 39 (1953); Com. De Astral v. Boston Met. Co., 205 Md. 237, 264, 107 A.2d. 357, 108 A.2d. 372 (1954).

Inasmuch as service no longer is limited in all cases to the territorial confines of the jurisdiction in which the court is sitting, the requirement in the original nonresident motorist statutes that service be made “within the state” by serving a state official before process is mailed to defendant no longer is of constitutional magnitude. Although it served its purpose well in an earlier era, it is largely an anachronism today. 4 Wright & Miller, Federal Practice and Procedure, § 1074 at p. 459 (1987). Although no longer required as a condition to the acquisition of personal jurisdiction over a nonresident, and insufficient in itself to confer jurisdiction, involvement of the Secretary of the Commonwealth does serve the important purposes of ensuring that notice is in fact sent and providing a neutral and official repository for documentary evidence of that fact.4 The defendants do not contend that the required procedure was not followed in this case. That the notice was sent, however, does not answer the question of whether the means employed for transmittal of the notice was constitutionally sufficient.

Service on a state official or agency does not obviate the necessity for constitutionally sufficient notice to the defendant. Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446 (1928); Grote v. Rogers, 158 Md. 685, 149 A. 547 (1930).

Personal delivery of process to a defendant, followed by the filing of written proof of that service, is a time-honored method of acquiring personal jurisdiction. This method of service, properly executed, provides a high degree of probability that the defendant received the required notice. An alternative method of “personal delivery” is to have an employee of the United States Postal Service deliver the process to the defendant. This method, service by mail, is often quicker and less expensive than service by a sheriff or private process server, but may present a problem with respect to proof of service.

Postal regulations providing an optional service of restricted delivery of registered or certified mail do, however, offer a solution to the problem of proof of service. For an additional fee, a person mailing a letter may direct that the letter be handled as registered or certified mail, that the letter may be delivered only to the addressee or his duly authorized representative, and that the person accomplishing delivery return a receipt to the sender bearing the signature of the person receiving the letter and showing the date and address of delivery. See 39 C.F.R. § 111.1 incorporating by reference the provisions of the Domestic Mail Manual. See in addition, the following sections of the Domestic Mail Manual: S 911 registered mail; S 912 certified mail; S 915 return receipts; and S 916 restricted delivery.

When process is mailed in this fashion a return that includes a postal receipt bearing the signature of the defendant or his authorized agent and a copy of the process that was mailed is filed, and the court can proceed with a high level of confidence that the requisite notice has been given. Service by registered or certified mail should be regarded as efficacious [as personal service] from a constitutional perspective to evoke personal jurisdiction since the return receipt normally guarantees that defendant or someone related or associated with him has received the process. 4 Wright and Miller, Federal Practice and Procedure (1987), § 1074 at p. 457-58. Problems have arisen with the use of restricted delivery mail for service of process principally with respect to mail that is returned “refused” or “unclaimed.” Postal regulations permit an addressee to “refuse to accept a piece of mail when it is offered for delivery.” Domestic Mail Manual, D 042. In the event of an affirmative refusal, the letter is marked “refused” and is returned to the sender. A restricted delivery letter that is not affirmatively refused, but is not delivered because the addressee does not claim it after delivery is attempted and notices have been left at the address given, is returned to the sender marked “unclaimed.” Courts in jurisdictions permitting personal service by registered or certified mail have generally held that a defendant cannot defeat service by an affirmative refusal to accept the letter, but that an “unclaimed” letter will not suffice to confer personal jurisdiction.

See, Note, Service Of Process By Mail, 74 Mich. L.Rev. 381, 387-91 (1975); Note, Constitutional Law; The Validity Of Service Of Process By Mail When There Is No Return Receipt; The Outer Limits Of Due Process, 25 Okla. L.Rev. 566, 567-70 (1972). See also, Lohman v. Lohman, 331 Md. 113, 626 A.2d 384 (1993) (unclaimed certified letter insufficient to sustain personal jurisdiction over individual defendant). In this state we have upheld substituted service on a corporation when service was made in accordance with the statute by serving the State Department of Assessments and Taxation after multiple attempts to serve the resident agent were unsuccessful and registered mail notice sent by the Department to the corporation was “unclaimed.” Barrie-Peter Pan Sch. v.

Cudmore, 261 Md. 408, 276 A.2d 74 (1971). We note, however, that consistent with the flexible nature of due process, the process that must be afforded a corporation may differ from that required in the case of an individual. [I]n the case of foreign corporations a less rigorous standard may suffice than in the case of individuals, for the reason that a state is generally without power to exclude an individual non-resident from doing business or making contracts within the state, but may generally completely exclude foreign corporations or may admit them only subject to conditions. Com. De Astral v.

Boston Met. Co., supra, 205 Md. at 262, 107 A.2d 357. Recognition of registered or certified mail as an effective method of accomplishing personal service of process is not unusual. In 1982, the Supreme Court forwarded to Congress a proposed revision of Federal Rule of Civil Procedure 4 that would have utilized restricted delivery registered or certified mail as an alternative to personal service.

Significant protests were advanced, however, resulting in a postponement of the effective date of this proposed rule change, and ultimately resulting in a major change in the proposed amendment to the Rule. See Brown v. Hart, 96 F.R.D. 64, 116-135 (N.D.Ill. 1982), detailing the history of the initial proposal and subsequent modification. In a letter dated December 10, 1982, to the Chairman of the House Judiciary Committee, Assistant Attorney General Robert McConnell summarized the criticisms of the proposed rule, as follows: [Cjritics of that system of mail service have argued that certified mail is not an effective method of providing actual notice to defendants of claims against them because signatures may be illegible or may not match the name of the defendant, or because it may be difficult to determine whether mail has been ‘unclaimed’ or ‘refused,’ the latter providing the sole basis for a default judgment. 96 F.R.D. at 116.

The amendment to Fed.R.Civ.P. 4 that emerged from Congress in 1983 did not permit original service by registered or certified mail as a means of acquiring personal jurisdiction. Instead, the Rule permitted an attempt at service by first-class mail that would be effective only if the person to be served returned a written acknowledgment within twenty days after the date of mailing. If an acknowledgment of service was not received, service would then be required under other provisions of the Rule. As an incentive to the recipient to accept service by first-class mail, the Rule further provided that a recipient who declined to file a written acknowledgment would be charged with the costs of service by other means.

Changes to Rule 4 effective in 1993 now make it clear that this use of first-class mail does not actually achieve service of process, but rather facilitates the filing by the recipient of a waiver of service that permits the action to go forward. This history of recent amendments to Fed.R.Civ.P. 4 suggests the existence of an abiding congressional concern about the effectiveness about certain types of mail delivery as a primary means of service to acquire personal jurisdiction. Certainly there has been no suggestion that the use of first-class mail alone to accomplish such service would be looked upon with favor. The Maryland legislature has recently enacted a bill that permits the giving of first notices in an estate case by first-class mail instead of restricted mail.5 Chapter 417 of the Laws of Maryland, 1996, codified at § 1-103 of the Estates and Trusts Article, Maryland Code (1974, 1991 Rep.

Vol., 1996 cum. supp.). The legislative history indicates that the principal purpose of the change was to reduce costs now borne by Registers of Wills. There is no discussion in the legislative history or in the brief approval of the proposed bill by the Attorney General of any due process considerations. This Court has not had an opportunity to pass upon the constitutional sufficiency of notice by first-class mail in this context, and we intimate no opinion on that question.

Professor Robert W. Kirst, in his article Nebraska’s Modern Service of Process Statute, 63 Neb. L.Rev. 1 (1983) suggests that service by first-class mail as a primary means of acquiring personal jurisdiction probably does not comport with the requirements of due process. Service by first class mail alone, with no receipt, is an alternative method of substituted service, but it hardly seems likely to comply with the due process clause, notwithstanding the Sixth Circuit’s possible endorsement of it in Greene [v. Lindsey ].

The Sixth Circuit clearly had no empirical data to show that the rate of pilferage from mailboxes in public housing projects was less than the rate of removal of summons from doors. The chance that the summons will be mailed or delivered to the wrong address must be at least as high, if not higher, as the chance it will be posted on the wrong door. With ordinary mail there is no sheriffs return of service to provide some assurance that the summons was actually posted and when it was posted; in entering a default, the court can relay only on post office routine to deliver mail promptly and return undeliverable mail. Although the Supreme Court upheld the use of first class mail service in Mullane v.

Central Hanover Bank & Trust Co., it was in the context of an action more like class litigation than individual litigation. Given these defects in service by ordinary mail, the wise course is to consider the caveat in Greene as a warning not to use ordinary mail as a routine method of substituted service. Id. at 6 (footnotes omitted). The parties did not supply, and we are unable to find, empirical data reflecting the rate of success of the United States Postal Service in delivering first-class mail.

The Postal Service does provide performance data relating to average days to deliver from overnight service areas, from two-day service areas, and from three-day service areas. This data is compiled by Price Waterhouse under contract to the Postal Service, and provides figures for 96 cities and the nation. Data for September 14, 1996, to December 6, 1996, disclose that the aggregate on-time delivery ranges from 76 percent to 91 percent.6 These figures do not, however, disclose how many pieces of first-class mail were not delivered. Notwithstanding the concerns about the use of mail without a signed returned receipt or waiver of service to obtain personal jurisdiction, there is strong precedent and rather extensive experience that supports the use of first-class mail for that purpose.

That precedent may be found in Federal Bankruptcy Rule 7004, and in the 1976 amended version of its predecessor Rule 704. Prior to the 1976 amendment, Rule 704(c) permitted service of summons, complaint, and notice of trial upon competent individuals “by any form of mail requiring a signed receipt.” The 1976 amendment permitted such service anywhere within the United States “by first-class mail postage prepaid.” Successor Rule 7004(b), adopted in 1983, continues the practice of permitted service of the summons and complaint by first-class mail, and provides that the mailing may be made “to the individual’s dwelling house or usual place of abode,” or “to the place where the individual regularly conducts a business or profession.” Unlike the procedure specified in Fed.R.Civ.P. 4, no acknowledgment of waiver of service is required to accomplish service under this Rule. Moreover, this method of service may be made in “non-core” as well as “core” proceedings, so that it is recognized as an effective means of acquiring original personal jurisdiction over a stranger to the bankruptcy proceedings in a contested matter. The constitutional sufficiency of notice given pursuant to Bankruptcy Rule 7004 and its predecessor rule has been upheld.

Matter of Park Nursing Center, Inc., 766 F.2d 261 (6th Cir.1985); In Re M & L Business Mach. Co., Inc. 190 B.R. 111 (D.Colo.1995); In Re Kim, 163 B.R. 157 (9th Cir. BAP1994); In Re Cossio, 163 B.R. 150 (9th Cir.BAP1994), aff'd, 56 F.3d 70 (9th Cir.1995); Leavell v. Karnes, 143 B.R. 212 (S.D.Ill.1990); Windsor Communications Group, Inc. v. Grant, 75 B.R. 713 (E.D.Pa.1985).

It should be noted, however, that two of the three judges in Matter of Park Nursing Center, Inc. supra, believed that first-class mail service satisfied due process requirements only if interpreted in the light of Federal Rules of Civil Procedure 55(c) and 60(b) so that [I]f a default judgment in bankruptcy proceedings is entered against an individual who, through no fault of his own, failed to receive actual notice by first-class mail, then that judgment should be set aside under these rules upon a showing of meritorious defense. 766 F.2d at 263. These rule changes have been upheld on the basis that special requirements of bankruptcy cases justify a more expeditious and less costly means of service than might be required in an ordinary civil case. In recognition of the time constraints in bankruptcy proceedings and to insure simple and expeditious service of defendants to such proceedings, Congress enacted Bankruptcy Rule 7004(b) to allow for service by mail alone. In Re M & L Business Mach.

Co., Inc., supra, at 115. What is needed in bankruptcy proceedings is a form of notice which is likely to achieve actual notice in a large volume of cases but is not overly expensive or time consuming. Bankruptcy proceedings occupy a large and important place in our federal judicial system. In 1983, there were 490,717 petitions filed in bankruptcy court, and of the ,229 bankruptcy proceedings pending, 123,442 were adversary proceedings.

Matter of Park Nursing Center, Inc., supra, 766 F.2d at 263. Additionally, adjudication of the rights of many persons and entities may be delayed in bankruptcy proceedings pending the determination of adversary proceedings. As we pointed out earlier, the concept of due process is not static—the process that is due may change according to the circumstances. Necessity may, therefore, be a valid factor in the due process equation in the balancing of the interest of the state against the interest of the individual.

Historically, courts have permitted the employment of potentially less effective methods of service where more effective methods have been attempted and have failed, or are otherwise impractical. Notification of lien holders in tax sale proceedings by mail instead of individual personal service may be adequate because of the state’s interest in facilitating tax sales, the presumption of reasonable interest in tax sale proceedings by the lien holders, and the difficulty and expenses of personal service, but notice by publication may not be sufficient when the identities of creditors are reasonably ascertainable. Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983).

Reasonable risks that the method of notice employed will not reach each individual affected may be tolerated when the action is against a class of persons and notice is reasonably certain to reach most of those interested in objecting. Mullane, supra, 339 U.S. at 306, 70 S.Ct. at 652. Turning to the case before us, we consider whether there are any special or unique circumstances that would justify relaxation of the ordinary and available methods of service that offer a considerably higher degree of probability of actual notice. In other words, given the availability of personal service by officials or private process servers, or service by restricted delivery mail, what state interest is present in this case that would justify resort to the significantly less certain procedure of first-class mail? We find but one circumstance that may distinguish this case from any other in personam action: the fact that the defendants are nonresidents of the Commonwealth of Virginia.

The Supreme Court has recognized that some distinction may be drawn between the methods employed to serve residents and some to serve nonresidents. Personal service has not in all circumstances been regarded as indispensable to the process due to residents, and it has more often been held unnecessary as to nonresidents. We disturb none of the established rules on these subjects. Mullane, supra, 339 U.S. at 314, 70 S.Ct. at 657.

Additionally, the fact of nonresidency has been held sufficient in some instances to uphold disparate treatment when a challenge has been made under the Equal Protection Clause. See, e.g., Owens v. I.F.P. Corp., 374 F.Supp. 1032 (W.D.Ky.1974); Castelline v. Goldfine Truck Rental Service, 49 Del. 155, 112 A.2d 840, 844 (1955).

We do not, however, view the factor of nonresidency as being of such significance or compelling interest as to justify the shifting of the balance to a point where notice by first-class mail alone will be sufficient to confer personal jurisdiction over an individual defendant. We fail to see why traditional methods of personal service on residents become so much more difficult or costly when applied to nonresidents. Certainly there may be some additional inconvenience or expense when dealing with officials or private process servers in another state, but this small difference hardly justifies the significant step of permitting first-class mail service. Moreover, service by mail requiring a signed return receipt would be no more difficult or expensive in the case of a nonresident than that of a resident.

Virginia does not permit first-class mail service of its residents in personal jurisdiction cases except where more conventional means have failed, and then only in conjunction with posting of the premises.7 Code of Virginia (1950, 1992 Repl.Vol., 1996 Cum.Supp.) § 8.01-296. Virginia does permit a direct attack against a void judgment, if made within two years, § 8.01—428(A)(ii), and a collateral attack by an independent equity action if a party can show nonreceipt of the first-class mail notice and the existence of a defense to the action, § 8.01-428(D). As the Supreme Court has said, however, in Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965), actions for relief from a default judgment that place a burden of proof upon the petitioner that he would not have borne if the notice had been sufficient in the first instance are insufficient to overcome the initial deficiency. The heart of the question is whether the means adopted by the Virginia legislature to notify nonresident defendants of an in personam action against them amounted to “a reliable means of acquainting interested parties of the fact that their rights are before the courts” and “means ... such as one desirous of actually informing the absentee might reasonably adopt to accomplish it,” Mullane, supra, 339 U.S. at 315, 70 S.Ct. at 657, when “the reasonableness of the notice provided ... [is] tested with reference provided to the ‘feasible and customary’ alternatives and supplements to the form of notice chosen,” Greene v.

Lindsey, supra, 456 U.S. at 454, 102 S.Ct. at 1880, quoting in part from Mullane, 339 U.S. at 315, 70 S.Ct. at 657-58. We hold that the means selected by the Virginia legislature to accomplish notice of service of original process in this case does not measure up to this test, and are constitutionally inadequate to afford the due process required by the United States Constitution. The method chosen to acquire personal jurisdiction over nonresident individuals— notice by first-class mail—“is not reasonably calculated to reach those who could easily be informed by other means at hand.” Mullane, supra, 339 U.S. at 319, 70 S.Ct. at 660. Accordingly, although the judgment may remain valid where entered until there is a contrary ruling by a court of competent jurisdiction, we decline to grant full faith and credit to the judgment because of our finding that the Virginia trial court did not acquire personal jurisdiction over these defendants because of the constitutional inadequacy of notice. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR CARROLL COUNTY; COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. Dissenting Opinion by CHASANOW, J., in which RODOWSKY and RAKER, JJ., join. .

Maryland Rule 2—121(b). . Section 6-303 of the Courts and Judicial Proceedings Article, Maryland Code (1974, 1995 Rep. Vol.). . Maryland Rule 2-121(c). .

The Secretary is required by statute to maintain a detailed “record of each notice of service sent to a person for a period of two years.’’ Section 8.01-329(E), Code of Virginia (1950, 1992 Repl.VoL). . This statute does provide, however, that the use of first-class mail for this purpose will be permitted only if this Court, through its rule-making power, does not require personal service or some other method of notice. Article 1-103(a)(1) of the Estates and Trusts Article, Maryland Code (1974, 1991 Rep. Vol.1996 cum. supp.).

This statute also permits the Orphans Court the option of requiring restricted mail delivery of first notices in any case. Section l-103(a)(2). . The break down of the aggregate figures is as follows: Percent on time, overnight to nation—90.77 percent Percent on time, two-day to nation—75.90 percent Percent on time, three-day to nation—79.01 percent . Interestingly, Virginia’s statutes dealing with long-arm jurisdiction over nonresident motorists and owners or operators of aircraft continue to require the state agent receiving process to “forthwith send by registered or certified mail, with return receipt requested, a copy of the process to the person named therein....” Code of Virginia (1950, 1992 Repl.Vol.) § 8.01-312.