Appellate Brief – Motion to Quash Service
I blogged previously, here, about how a Florida court denied a Motion to Quash Service in one of my foreclosure cases (sua sponte, without notice, without a hearing, and without case citations). In my view, the issue was clear – the bank served my client via publication when it should have done so via personal service, and my client did not waive that defense by filing a Notice of Appearance and Motion for Extension of Time.
The other day, I saw an appellate court decision which reversed an Order denying a Motion to Quash Service in a foreclosure case, and I blogged about that, here.
Today, I prepared my Initial Brief from my appeal of the Order Denying the Motion to Quash, and I’m posting it (without the cover page, table of contents, etc.) for all to see.
What I’ve written in this brief are bona-fide legal arguments on issues that I see regularly in foreclosure cases. Quite simply, banks resort to service by publication far too frequently, typically without justification. This is a valid defense to foreclosure and one that, if the trial court judges will not honor, we should all be willing to bring to the appellate court. After all, unlike an order denying a motion to dismiss, an order denying a motion to quash service is appealable right then – you don’t have to wait until the end of the case.
Mark Stopawww.stayinmyhome.com
Posted in Main | 4 Comments »
Came back to this from later posting. Read Initial Brief you linked. Good job. Nice Brief.
Made even better that you prepared the ground first with the motion for re-hearing and emergency motion for ruling.
It would be nice if courts put as much care into their rulings and opinions as good lawyers put into their motions and briefs.
James,
I hear you. It’s nuts that the Second District took so much time to write that ruling when the lower court wouldn’t even give me a hearing.
Mark
Mark,
Just got to this from a link at 4closure hamlet.
Currently putting together a response to complaint from Citi (very short timeline). VERY similar situation. But, interestingly enough, in process of pleading for Alternative Service (publication), they seem to have fudged a few facts. Now I’m wondering if the Complaint itself is in question, given that due process may’ve been compromised. In that case… how is that handled, continue with Response and put in New Matter, or would that be a separate motion/complaint…and what does that do to a timeline?
J-
You can challenge service of process (Motion to Quash Service) and contemporaneously challenge the sufficiency of the complaint (Motion to Dismiss).
Was that your question?
Mark