Archive for November 29th, 2011

Service of Process – Make The Banks Do It Right

One of the most basic elements of any lawsuit, including a foreclosure lawsuit, is a plaintiff’s obligation to effectuate service of process on a defendant.  Service of process is a fundamental tenant of a defendant’s right to due process, as it ensures a defendant knows about a lawsuit and is given an opportunity to defend. 

Florida Statutes govern the manner in which service of process must be effectuated.  There are many different statutes, and many of them are quite technical, but the most common method of service is set forth in Florida Statute 48.031(1).  If you don’t remember anything else about service of process, remember this: 

Service of process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. 

This one sentence sets forth at least three ways in which a defendant can challenge the manner in which service of process is effectuated (in a typical situation).  Specifically:

  • The process server cannot merely hand-deliver the Summons/Complaint – he/she must also inform the defendant of their contents.  (See below for how I utilized this requirement in a pending foreclosure case.)
  • The process server cannot give the Summons/Complaint to a child – the person to whom the paperwork is given must be 15 or older.
  • If the process server does not serve the defendant personally, then the paperwork must be given to someone who resides at the home where that defendant resides.  Service on an overnight guest of the defendant is insufficient.  Likewise, if a husband and wife are not living together, then service on one spouse does not constitute service on the other.  If the lawsuit is a foreclosure lawsuit, and the property is a rental property, service on the tenants at the property does not constitute valid service against the homeowner. 

These requirements sound quite basic, but process servers screw them up all of the time.  To illustrate, I had a hearing scheduled for tomorrow in a foreclosure lawsuit on a Motion to Quash Service.  My argument was that service should be quashed because the process server did not inform the defendant of the content of the documents when he effectuated service.  I wasn’t denying my client received the Summons/Complaint, but that’s not enough – the process server was required to inform my client of the contents. 

I can only presume the plaintiff’s lawyer realized my motion was well-taken, because he just cancelled the hearing.  Bear in mind – it doesn’t matter that this homeowner was behind on mortgage payments or had been personally served – the fact that the process server failed to inform him of the contents of the documents invalidates the service. 

There are many cases regarding these propositions of law.  For a flavor, check out Bache, Halsey, Stuart, Shields, Inc. v. Mendoza, 400 So. 2d 558 (Fla. 3d DCA 1981) (service quashed where defendant was not informed of contents), and Johnston v. Halliday, 516 So. 2d 84 (Fla. 3d DCA 1987) (service quashed where the defendant’s son did not reside with her and was under 15 years of age). 

I raise this issue, of course, because this is yet another argument that homeowners can raise when defending a foreclosure case.  

The banks have done many things wrong in recent years.  Let’s at least make them effectuate service of process the right way.

Mark Stopa

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