Archive for November 10th, 2011

Receipt/Notice of Pleadings in Foreclosure Cases

Stopa Law Firm was attending a hearing today in a foreclosure case when court personnel informed us that a different hearing in a different case had been scheduled for that same time.  We had not received a Notice of Hearing for this hearing, nor was this hearing coordinated with us, so we had no idea the hearing was scheduled.  When we advised the judge as much, he indicated he wanted to proceed with the hearing, noting that a Notice of Hearing was in the court file. 

Given how foreclosure mills operate, the high volume of paperwork coming out of their offices, and the lack of experience of many staff at these firms, this fact pattern is not uncommon.  Hence, it’s important to clarify how the law works here. 

When a lawyer files a pleading or other court document with a Certificate of Service at the bottom (such as the one on the Notice of Hearing in the court file today), the Certificate of Service creates a presumption that the document was received by the persons to whom it was sent, i.e. the homeowner or homeowner’s attorney.  However, this presumption is not conclusive, merely rebuttable.  In other words, the alleged recipient can dispute receipt of the document and, upon doing so, there becomes a factual dispute as to whether the document was served/received. 

When a factual dispute like this exists, a court cannot simply decide which side he wants to believe (i.e. the person who sent the document, based on the Certificate of Service, or the person who denies receipt thereof).  Rather, the court must conduct an evidentiary hearing to resolve the factual dispute.  As one Florida court has explained:

A presumption of notice arises when a certificate of service indicates that pleadings and orders were mailed to counsel.  That presumption is rebuttable.  While a sworn affidavit stating that the filing was not received will not automatically overcome the presumption, such an affidavit will create an issue of fact which must be resolved by the trial court.  That resolution requires an evidentiary hearing.

Depelisi v. Wishner, 15 So. 3d 808 (Fla. 4th DCA 2009).

Using the example from today, the court could not go forward with the hearing based on the Certificate of Service in the Notice of Hearing where my office was denying receipt thereof.  Rather, and as the court agreed, the court had to conduct an evidentiary hearing to decide if the Notice of Hearing was sent/received. 

This issue comes up a lot in foreclosure cases. 

Was the Motion for Summary Judgment served upon the homeowner?

Was the Notice of Hearing served on the homeowner?

Was the Final Judgment served on the homeowner?

If you’re facing this issue, and you truly didn’t receive these documents, don’t let the court accept the word of the bank’s lawyer (based on the Certificate of Service).  Make sure the court knows you didn’t receive the documents, and ask the court for an evidentiary hearing.  That way, you’ll have your chance to testify and to convince the court you were not served with the requisite paperwork.  

Notably, there are circumstances where you can make this argument even after the hearing is over and after you’ve already lost. 

Of course, as I see it, making this argument is much easier with competent counsel (who’s argued these sorts of things many times before) rather than going at it on your own.

Mark Stopa

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