Arizona Foreclosure Sale Voided For Failure To Properly Serve Lawsuit Papers On Homeowner
The Arizona Republic reports:
See also, Olive Green Villas vs. Cruz (10-2-07; available online courtesy of the Arizona Court of Appeals).
This case serves as a reminder to attorneys who are brought in to represent homeowners in a foreclosure action that is either in progress or that has already progressed to a final judgment that (at least in states requiring a judicial foreclosure or other states requiring service of papers by a process server or sheriff's deputy), always first review the "affidavits of service" filed by the process server or deputy before addressing the merits of a case. I can speak from first hand knowledge that process servers and deputies screw up more often than anyone can imagine when serving (or purportedly serving) papers on a defendant in a lawsuit. Why foreclosing lienholders can get away with these errors being made is simple: either a homeowner in foreclosure can't afford an attorney to represent them, or if they have an attorney, the attorney often just doesn't think to review the file to see that the process serving requirements have been properly complied with (often, the attorney is simply unfamiliar with the process serving requirements - state statutes set forth the precise requirements and generally require strict compliance therewith; failure to strictly comply will result in a subsequently obtained judgment in the case being either "voidable" - at a minimum - or completely null and void, as in this case).
Go here and go here for other posts on foreclosures involving faulty notifications to property owners.
Go here for other posts on process server screw ups. ScrewUpProcessServing foreclosure faulty notice
- A homeowners association can't foreclose on someone's house for not paying assessments if it can't prove the owner was served with the lawsuit, the state Court of Appeals has ruled. Without dissent, the court threw out a judgment obtained by Olive Green Vistas Homes Association against Santos Cruz. The judges said that without proof of service, the foreclosure, and everything else that happened subsequently, is legally void.
- The judges also said that the fact that Cruz was aware of what was happening after the initial default judgment was entered against him is irrelevant.
See also, Olive Green Villas vs. Cruz (10-2-07; available online courtesy of the Arizona Court of Appeals).
Editorial Note
This case serves as a reminder to attorneys who are brought in to represent homeowners in a foreclosure action that is either in progress or that has already progressed to a final judgment that (at least in states requiring a judicial foreclosure or other states requiring service of papers by a process server or sheriff's deputy), always first review the "affidavits of service" filed by the process server or deputy before addressing the merits of a case. I can speak from first hand knowledge that process servers and deputies screw up more often than anyone can imagine when serving (or purportedly serving) papers on a defendant in a lawsuit. Why foreclosing lienholders can get away with these errors being made is simple: either a homeowner in foreclosure can't afford an attorney to represent them, or if they have an attorney, the attorney often just doesn't think to review the file to see that the process serving requirements have been properly complied with (often, the attorney is simply unfamiliar with the process serving requirements - state statutes set forth the precise requirements and generally require strict compliance therewith; failure to strictly comply will result in a subsequently obtained judgment in the case being either "voidable" - at a minimum - or completely null and void, as in this case).
Go here and go here for other posts on foreclosures involving faulty notifications to property owners.
Go here for other posts on process server screw ups. ScrewUpProcessServing foreclosure faulty notice
posted by Home Equity Theft Reporter at 7:54 AM
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