Bank Confesses Error on Appeal
Do you know the requirements for service of process? And why a bank would admit to an appellate court that a lower court’s ruling was wrong?
Fla. Stat. § 48.031(1)(a) sets forth a plaintiff’s obligations with respect to service of process. It provides:
Service of original 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.
Under the plain language of the statute, the process server’s failure to “inform the person of the contents” of the Summons/Complaint being served requires that service of process be quashed. See Bache, Halsey, Stuart, Shields, Inc. v. Mendoza, 400 So. 2d 558 (Fla. 3d DCA 1981). That means, in layman’s terms, that it’s not enough for the process server to hand a defendant the Summons and Complaint – he/she must also explain to the defendant what the papers are.
Several months back, I represented a homeowner in a foreclosure lawsuit and believed the bank’s attempts at service were insufficient. So I moved to quash service and vacate the default that was entered when the homeowner did not respond to the lawsuit. The lower court denied my motion without explanation. As I was confident the motion should have been granted, I filed an appeal. In response to my Initial Brief, the bank filed this Confession of Error. What does that mean? Simple. Instead of the bank arguing that the lower court’s ruling was correct, as typically happens in an appeal of this type, the bank conceded the ruling was erroneous and needed to be reversed by the appellate court.
Why would a bank just give up so easily? No, it’s not a sudden onset of morality. Rather, the banks often realize they’re better off admitting a lower court ruled incorrectly and losing that one case to prevent an appellate court from issuing a written decision that can impact thousands of other cases. Think about it. Since the bank conceded error, Florida’s First District Court of Appeal probably won’t issue a written opinion explaining how the motion to quash should have been granted because the process server did not inform my client of the contents of the Summons and Complaint. The bank admitted the error, so the appellate court can issue a simple order reversing the lower court without a lengthy explanation. By proceeding in this manner, the bank loses this appeal, but it prevents others from catching on to this argument.
That’s where I come in. Banks may not want homeowners to know about this argument, but I do. So read my Initial Brief. And remember – a homeowner facing foreclosure can challenge service of process where the process server did not inform the homeowner of the contents of the Summons and Complaint. See Fla. Stat. 48.031(1)(a). Just bear in mind, like most defenses in foreclosure, this defense can be waived if not timely asserted, so don’t sit on your rights!
Mark Stopawww.stayinmyhome.com
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