Appeal of an Order Denying a Motion to Quash Service

Posted on May 22nd, 2012 by Mark Stopa

Here is my Initial Brief in a foreclosure case where I’m appealing an Order denying my client’s Motion to Quash Service.  The fact-pattern was pretty straightforward, and so was the brief.  The Return of Service (the document the process server filed to establish service of process was effectuated) did not reflect that the process server informed my client of the contents of the Summons and Complaint, as required by Fla. Stat. 48.031(1)(a), and my client’s Verified Motion established that she was not so informed.  On these undisputed facts, I submit that service should have been quashed, and I think Florida’s First District Court of Appeal will agree.

This is not the first time I’ve posted a brief like this.  In the past, I’ve found that when I do so, I will get calls from prospective clients who want me to raise a similar issue in their case.  That’s great, and I’m happy to shed a spotlight on viable defenses available to homeowners in foreclosure cases.  That said, anyone in this situation needs to realize that the right to bring this sort of appeal is predicated on the homeowner’s compliance with some extremely technical rules of procedure, including: (i) you have to challenge service with the first paper filed in the foreclosure case; and (ii) you have to file a Notice of Appeal within 30 days of the Order denying that motion.

All too often, I find that homeowners could have asserted a defense or brought an appeal like I’ve done here, but they tried to handle the situation on their own and blew the procedural requirements.  If you’re a homeowner facing foreclosure, don’t make this mistake!  Don’t miss out on viable defenses because you tried to handle your lawsuit yourself!  After all, if you broke your arm, you wouldn’t try to perform surgery on yourself.

Mark Stopa

www.stayinmyhome.com

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