Foreclosure Judgment after Service by Publication – VACATED

All defendants, even homeowners facing foreclosure, are entitled to due process of law before their property can be taken.  (Many people even know the phrase in the constitution – “cannot be deprived of life, liberty, or property … without due process of law.”). 

One of the most basic elements of due process is ensuring a defendant is aware of a lawsuit, and given the chance to defend, before that lawsuit is adjudicated.  This is accomplished, of course, by ensuring valid service of process.  Specifically, all plaintiffs are required to ensure defendants are served by a process server or sheriff with a Summons and Complaint.  There are exceptions to this, i.e. service by publication, but its requirements are technical and, hence, are strictly construed.

I currently have a client who owns a home in Jacksonville.  He was sued for foreclosure but he lives in New York.  Instead of serving him in New York, as required, the bank’s lawyers served him by publication.  Unaware of the lawsuit, he did not defend it, resulting in a Final Judgment of Foreclosure and a foreclosure sale (at which the bank was the high bidder). 

This homeowner retained Stopa Law Firm, and I moved to vacate the Final Judgment, cancel the Foreclosure Sale, and Quash Service.  Initially, the bank’s lawyers opposed the motion, arguing at a brief, 15-minute hearing that service was appropriate and the Final Judgment should stand.  The Jacksonville court ruled, however, that my client was entitled to an evidentiary hearing on whether service was valid.  That hearing was supposed to take place on Monday.  However, I got a call this week, out of the blue, whereby opposing counsel stipulated to Vacate the Foreclosure Judgment and to the entry of this Order Vacating Foreclosure Judgment, Cancelling the Foreclosure Sale, and Quashing Service – all we had to do was cancel the hearing and accept service. 

This is quite a good result, obviously.  The client gets the foreclosure judgment vacated and the bank has to, essentially, start the case from scratch.  And we essentially give up nothing in return.  This raises the question, of course – why would the bank do this? 

As I see it, there is only one explanation – the bank feared the evidentiary hearing, specifically the evidence that would have been presented if the hearing had gone forward.  In particular, it seems clear to me that the bank knows there are many cases where service of process has been done improperly and it doesn’t want to shed a spotlight on that fact any more than necessary. 

Let this serve as a reminder – if you’re being sued for foreclosure (or anything else, for that matter), you are absolutely entitled to force the plaintiff to serve you, with a process server, with a Summons and Complaint.  Service of process by publication is possible, but the banks often do it incorrectly, meaning you could, like in this case, get a foreclosure judgment vacated (even months or years after the fact) if you were not served properly. 

The banks’ failure/refusal to effectuate service properly is just one example of how they cut corners and violate the law in their ongoing attempt to push through foreclosures as quickly as possible.  Don’t let them get away with it!  Make sure you and your family and friends are aware of the requirement to effectuate service of process properly.

Mark Stopa

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11 Responses to Foreclosure Judgment after Service by Publication – VACATED

  1. Pingback: Stopa | Foreclosure Judgment AFTER Service by Publication – VACATED « Foreclosure Fraud – Fighting Foreclosure Fraud by Sharing the Knowledge

  2. ljanson says:

    Mark – Nice Win!!!!

  3. Lit Gant says:

    Hello Mr. Stoppa:

    You are right on the mark. I would not stipulate to anything. But that is your call. I would want a court ruling that would set some precedent.

    I would really like for you to consider the idea of Dave Krieger and what he is doing with clouded titles. I think this man has a lot on the go and what he is claiming can be used to quiet titles when the note and mortgage have been split. I think there is enough case law now to determine MERS has no standing as nominee in many cases, especially where the original lender was not a member and the mortgage was never registered in the MERS system. I appreciate the way your firm has been defending Mr. Stopa. You also are a great American like Matt Weidner and the others.

  4. Pingback: Stopa | Foreclosure Judgment AFTER Service by Publication – VACATED – blog of Denbeaux & Denbeaux

  5. David Acosta says:

    Excellent post.
    Over the past few years I have been doing lots of post-judgment audit work on foreclosure cases and have found numerous grounds on which judgments, sales and defaults can be (and should) be set aside. The attorneys I work with attack on grounds of defective service, just like Mark Stoppa did in this case, because it goes to the heart of the court’s jurisdiction over the person. Other grounds which impact the other side of the court’s authority, or subject matter jurisdiction, involve such things as defective notices; unauthorized expansion of a court’s award of relief (where the matter was not requested by motion, noticed for hearing or litigated by consent of the parties); defaults grounded on claimes that were not complete or were defective, and others. These defects are show stoppers because without personal or subject matter jurisdiction, either one, the court lacks authority to proceed. It is a constitutional limitation on the awesome powers entrusted to this branch of government.
    As Mark points out these kinds of defects, going to the court’s authority, indeed can be set aside months and years later. In some examples, in one case we were successful in setting a aside four-year old default; in another case we restored a homeowner to his property rights whose house was sold and his family was less than 48 hours from being evicted after foreclosure; in another case, vacating foreclosure judgments and sales that were aggressively defended by the foreclosing plaintiff – requiring two separate hearings and submission of additional briefs. And, the list goes on.
    On one case the judge vacated the judgment, set aside the sale and ordered an evidentiary hearinng. The law in Florida is that if the defendant raises a colorable basis for relief that discovery should be allowed. When the attorney for the homeowner pursued discovery the plaintiff’s attorneys dismissed the case and immediately offered to pay all attorneys’ fees. They the plaintiff’s attorneys seemed to run for the hills. (I know there are no hills in Florida – that’s how far they wanted to run)
    This is not theoretical, but is not for the untrained. It is very difficult if not impossible to do pro se. Foreclosure defendants who have suffered entry of a foreclosure judgment, however, should not give up. Find an attorney, like Mark Stoppa, who understands post-judgment relief, including appeals if the time has not expired, and ask about an examination of the procedural history of the case. This is complex stuff and not all attorneys are comfortable with it. If the attorney is not fluent in post-judgment work ask for a referral to another attorney.
    I believe there are thousands of foreclosure judgments in Florida that are defective enough to fall with a motion to vacate pursuant to rule 1.540, and on various real and substantive grounds. Well done, Mark. Keep up the fight.

  6. Maria says:

    Dear Mark Stopa, can you help me with my “FROZEN” Case in the Jacksonville Duval Courthouse? There is NO PLAINTIFF, improper Service of Process, oposing lawyers FAILED to respond to my 4 Requests for discoveries. I am Pro Se. Please, review my Case No.: 16-2009-CA-011566 and contact me shortly as you able to. Thank you.

  7. g mc says:

    i guess not paying your mortgage for months even years on end isn’t enough due process. or the fact your client signed a note and mortgage obligating him to repay a debt. at what point did he realize he was going to lose the property he wasnt paying on? month 6-7 or year 1 or 2? Now he gets to live for free. or let me correcft my self. your client lives in another state than where the subject property is located, so for that matter he should have never owned something he couldnt afford to begin with nor is the property homesteaded. Also on another note. A title theory state couldn’t come quick enough. you do not pay they come take your house. Just like a repo with a car. that sounds great. music to my ears!!!!

    • Mark Stopa Mark Stopa says:

      Mr. McIntosh,

      My clients all signed a contract which says a foreclosure can take place only “by judicial process.”
      Hence, this isn’t just a matter of “due process,” it’s a matter of both sides honoring the terms of the contract they entered.
      In other words, foreclosure by judicial process is the method the banks chose in the event of default.
      If you expect me to feel sorry for the banks when they’re getting the remedy for which they bargained, you’re on the wrong blog.

  8. Chris says:

    I just had a case where this happened. The mortgage defendant co-owned the house with two other defendants. The mortgage defendant lived in New York and was never served at the time service was attempted and effected on the other defendants. The property went to sale in July, 2011. The motion to squash service of process was filed a year prior or more prior to the sale and at least one month beore entry of final judgement. David Stern was the Plaintiff’s attorney. Substitution of counsel for plaintiff was ordered granting Hiatt, Diaz and Smith new counsel for the Plaintiff Bank. All this while neither did Stern or Hiatt, Diaz & Smith attempt to contact the Defendant’s counsel to work it out. At the hearing yesterday, the judge vacated the dafault, judgement and sale and allowed the Defendant 20 days to file an answer. Mark you were lucky the banks counsel was smart enough not to let it go to hearing and waste time. Apparently Hiatt Diaz and Smith are unenthical attorneys who prefer to proceed without due process. They are countless of these cases where defendants are not servced properly. The attorney for Hiatt, Diaz and Smith had the nerve to tell the judge that they already mailed out Notices for Writ of Possession. What was laughable was that Hiatt, Diaz & Smith try to argue that at some point in time the defendant used the property as a either a residence or mailing address. The judge said the issue is at the time of service, the defendant did not live there and the court has no jurisdiction. Luckily the write of possession was not on the Court’s docket yet. This is a case filed since 2009. It works and I am surprised more attorneys are not using it.

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