You were served with foreclosure papers…OR WERE YOU REALLY??!!
A far reaching foreclosure defense seminar in Orlando was put on last week by Max Gardner and other mortgage securitization experts. I was privileged to attend. I heard some dismaying allegations of serious breaches of procedure by servicers and process servers. Today, let’s focus on the process servers.
First, you should understand that, in Florida, original court summons (the first set of papers you get in a foreclosure, for instance) can, by law, only be served by a special process server appointed by the sheriff or by a certified process server as provided for by law. [FLORIDA STATUTE 48.021 (1) http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0048/Sections/0048.021.html ]
There are reports from around the state that, in order to save money, some large process companies working for the banks’ servicers and law firms, may have HIRED UNQUALIFIED ‘RUNNERS’ to go out and actually serve defendants with their foreclosure papers. Most homeowner defendants had no way of knowing the difference. Here’s the thing, if and where this actually happened, those people were not validly served! The court’s power to act DEPENDS on that service of process. If a judgment were entered, it may be subject to being set aside. If these reports are true, many people may have been defaulted or foreclosed based on invalid service.
If you are served with a foreclosure or other law suit, or have been in the past, it may be well worth your while to have an attorney investigate all the circumstances. It could give you an opportunity to re-litigate the entire matter.
As Vidal and other Florida cases also make clear, another thing you should look at carefully when you are served (in any civil court case, not just foreclosure) are the notations on the front of the summons.
FS 48.031 (5).doc FS 48.031(5) is a critical Florida law which requires that the person serving process shall place, on the first page of at least one of the processes served
1. the date of service and
2. the time of service (for instance, 5:29 pm) and
3. his or her identification number and
3. his initials
for ALL service of process.
Florida courts have interpreted this law very strictly and have quashed (thrown out) process where these rules were not exactly complied with. [ Vidal v Sun Trust 4th DCA August 2010.doc]
If you weren’t PROPERLY served, the court does not have/did not have personal jurisdiction (power or authority) over you and some or all of the proceedings may be void or voidable. Remember, these situations are very fact specific, so you need to review them carefully with our office.
