Archive for February 25th, 2011

Foreclosure Judgment after Service by Publication – VACATED

All defendants, even homeowners facing foreclosure, are entitled to due process of law before their property can be taken.  (Many people even know the phrase in the constitution – “cannot be deprived of life, liberty, or property … without due process of law.”). 

One of the most basic elements of due process is ensuring a defendant is aware of a lawsuit, and given the chance to defend, before that lawsuit is adjudicated.  This is accomplished, of course, by ensuring valid service of process.  Specifically, all plaintiffs are required to ensure defendants are served by a process server or sheriff with a Summons and Complaint.  There are exceptions to this, i.e. service by publication, but its requirements are technical and, hence, are strictly construed.

I currently have a client who owns a home in Jacksonville.  He was sued for foreclosure but he lives in New York.  Instead of serving him in New York, as required, the bank’s lawyers served him by publication.  Unaware of the lawsuit, he did not defend it, resulting in a Final Judgment of Foreclosure and a foreclosure sale (at which the bank was the high bidder). 

This homeowner retained Stopa Law Firm, and I moved to vacate the Final Judgment, cancel the Foreclosure Sale, and Quash Service.  Initially, the bank’s lawyers opposed the motion, arguing at a brief, 15-minute hearing that service was appropriate and the Final Judgment should stand.  The Jacksonville court ruled, however, that my client was entitled to an evidentiary hearing on whether service was valid.  That hearing was supposed to take place on Monday.  However, I got a call this week, out of the blue, whereby opposing counsel stipulated to Vacate the Foreclosure Judgment and to the entry of this Order Vacating Foreclosure Judgment, Cancelling the Foreclosure Sale, and Quashing Service – all we had to do was cancel the hearing and accept service. 

This is quite a good result, obviously.  The client gets the foreclosure judgment vacated and the bank has to, essentially, start the case from scratch.  And we essentially give up nothing in return.  This raises the question, of course – why would the bank do this? 

As I see it, there is only one explanation – the bank feared the evidentiary hearing, specifically the evidence that would have been presented if the hearing had gone forward.  In particular, it seems clear to me that the bank knows there are many cases where service of process has been done improperly and it doesn’t want to shed a spotlight on that fact any more than necessary. 

Let this serve as a reminder – if you’re being sued for foreclosure (or anything else, for that matter), you are absolutely entitled to force the plaintiff to serve you, with a process server, with a Summons and Complaint.  Service of process by publication is possible, but the banks often do it incorrectly, meaning you could, like in this case, get a foreclosure judgment vacated (even months or years after the fact) if you were not served properly. 

The banks’ failure/refusal to effectuate service properly is just one example of how they cut corners and violate the law in their ongoing attempt to push through foreclosures as quickly as possible.  Don’t let them get away with it!  Make sure you and your family and friends are aware of the requirement to effectuate service of process properly.

Mark Stopa

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