Archive for October 27th, 2011

Challenging Service of Process by Publication

It’s terribly frustrating when a judge denies a Motion to Dismiss in a foreclosure case, not just because it’s a lost hearing, but because an Order denying a Motion to Dismiss cannot be appealed until the end of the case.  No matter how wrong the trial court may be, the Florida Rules of Appellate Procedure simply don’t allow an appeal of an Order denying a Motion to Dismiss until after a homeowner files an Answer and after the Court enters a Final Judgment of Foreclosure. 

(As an aside, this is why there are no appellate decisions which set the standard for courts to apply in foreclosure cases.  From a procedural perspective, it is very difficult to get this issue in front of the appellate courts.  This is also why there is such a wide variety of opinions among judges on how to rule on Motions to Dismiss.)

Anyway, the inability to appeal a Motion to Dismiss is one reason I like Motions to Quash Service.  You see, unlike a Motion to Dismiss, if a Motion to Quash Service is denied, a homeowner can appeal the ruling right then, without waiting until the end of the case.  After all, challenging service of process is also a challenge to personal jurisdiction (as the court has no jurisdiction over a defendant without valid service), and the Rules specifically authorize appeals regarding personal jurisdiction without waiting until the end of the case.  See Fla.R.App.Pro. 9.130(a)(3)(C)(i).  As a result, if a trial court improperly denies a Motion to Quash Service, then a homeowner can challenge that ruling in the appellate court. 

Why does this matter?  It matters a lot.  I see a lot of foreclosure cases – at least 1 out of 10, perhaps more like 1 out of 5 – where service is done improperly.  There are all sorts of technical issues here, but probably the most common circumstance is when the process server for the bank tries once or twice to serve a homeowner with personal service (i.e. hand-deliver a copy of the Summons and Complaint), is unable to do so, and resorts to service by publication (i.e. publishing the existence of the lawsuit in the local newspaper). 

I’m currently in the middle of drafting appellate briefs on this precise issue, setting forth the many circumstances where service by publication is improper, and I’ll post the briefs when I’m finished.  For now, though, I’ll simply cite Fourth District Court of Appeal’s decision in Blanco v. Bank of New York, hot off the presses:

We reverse the trial court’s order denying the Defendant’s Verified Motion to Quash Service by Publication, Vacate Default, and Final Judgment, because the Plaintiff failed to make a diligent effort to personally serve the defendant before serving process by publication.  See Miller v. Partin, 31 So. 3d 224, 228 (Fla. 5th DCA 2010) (stating that “the test to be applied is whether the plaintiff reasonably employed the knowledge at his or her command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the surrounding circumstances to acquire the information necessary to enable the plaintiff to effect personal service on the defendant. 

What should you take from this?  Simple.  If you were served by publication, the plaintiff’s process server had to make a diligent effort to serve you personally, and only if they didn’t, then service should be quashed.  The law is so clear in this regard that the Blanco court adhered to it even though the homeowner did not challenge service until after the foreclosure judgment had already been entered.  The case was over, the bank won, the foreclosure was finalized, but the court said “not so fast – service was invalid, the case must start over.”

One word of caution – it is very easy to waive defenses like service of process and personal jurisdiction by not asserting it in a timely or appropriate fashion.  Hence, I strongly urge you not to try this on your own.  Hire a competent foreclosure defense attorney to assert all valid defenses, including deficient service.

Mark Stopa

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