The Palm Beach Post
- Improperly served foreclosure notices may be the mortgage industry's next roadblock to repossessing homes. The Florida attorney general's office is investigating two of the state's largest companies that serve court summonses on homeowners, while at the same time [appellate court] judges are throwing out rulings based on faulty deliveries. This month, appeals courts in Miami and Palm Beach County sided with homeowners in foreclosures where judges agreed their summonses were not appropriately served.(1)
- In the Miami case, the homeowner said she was recovering at her mother's home after surgery when the person serving her the summons swore he personally handed it to her at her residence. But the server's own notes on the file showed he left the documents at the door after seeing curtains move and assuming someone was home. The homeowner later said she had no knowledge of the foreclosure until a final judgment was entered against her.(2)
- An attorney for one of the firms under investigation [by the state], Miami-based Gissen & Zawyer Process Service Inc., said the company plans to cooperate with the attorney general, which launched its inquiry Dec. 10. He acknowledged that in the tens of thousands of summonses served, there have likely been mistakes.
- It was Gissen & Zawyer that served the foreclosure summons to a Palm Beach County homeowner who won an argument Dec. 15 in the Fourth District Court of Appeal. The Royal Palm Beach law firm Ice Legal defended the homeowner, showing in its arguments scribbled notes that included one illegible grouping of numbers — either the server's identification number or the time of service. Both are required by state statute.(3)
- While the omission may seem like a technicality, it's a violation of law, said attorney Tom Ice. "Those rules are designed to stop the 'sewer service' so rampant in foreclosures," said Ice, referring to the slang term given bad process service.(4) "Once we accept the notion that some laws don't need to be enforced, where do we draw the line?"
For more, see Problems with foreclosure notices loom as next flaw in process.
(1) It should be noted that in both of the rulings, Florida appeals courts reversed rulings of lower courts which had earlier OK'd the patently obvious defective work of sloppy process servers. The guilty trial judges whose screw-ups were reversed: Miami-Dade County Circuit Court Judge Ronald M. Friedman, and Palm Beach County Circuit Court Judge Meenu Sasser.
(2) In Bennett v. Christiana Bank & Trust Co., No. 3D09-2653, (Fla. App. 3d DCA, December 1, 2010), Miami-Dade County Circuit Court Judge Friedman entered an order finding that the service was “questionable,” but that there was no meritorious defense to the foreclosure. He then denied the motion to vacate the foreclosure judgment. In reversing Friedman's ruling, the three-judge appeals court panel made the following statements of Florida law (bold text is my emphasis, not in the original text):
- Strict construction of, and compliance with, statutes governing service of process is required. Shurman v. Atl. Mortgage & Inv. Corp., 795 So. 2d 952, 954 (Fla. 2001). Without proper service, a court may not proceed in the matter. Re-Employment Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So. 2d 467, 471 (Fla. 5th DCA 2007) (citing Henry P. Trawick, Jr., Florida Practice and Procedure §8:20 (2007 ed.)). “A summons properly issued and served is the method by which a court acquires jurisdiction over a defendant.” Seymour v. Panchita Inv., Inc., 28 So. 3d 194, 196 (Fla. 3d DCA 2010). In analyzing whether service is proper, the return of service is the point of departure.
A process server’s return which is regular on its face is presumed valid absent clear and convincing evidence to the contrary. Bank of Am. v. Bornstein, 39 So. 3d 500 (Fla. 4th DCA 2010); TelfCorp. v. Gomez, 671 So. 2d 818, 818 (Fla. 3d DCA 1996). Moreover, a simple denial is insufficient to impeach the validity of service. Telfcorp. However, in this case, Ms. Bennett raised more than her own sworn denial. The process server’s own notes, an admission against the interest of his principal, see § 90.803(18)(d), Fla. Stat. (2009), prove the insufficiency of service. The process server’s last entry reflects that he “Saw Curtains Move, Read Aloud Docs, SVP Docs at Door.”
Christiana Bank argues that there is no testimony to explain what “SVP” means, but “Docs at Door” is quite self-explanatory. Curtains may move because of the wind or curious cats, and not just because some prospective defendant is attempting to avoid service.
- Far more troubling is the fact that Christiana Bank and its attorneys ignored this discrepancy in the return of service. In its motion for summary judgment Christiana Bank lleges that the “Defendant(s) were duly and regularly served with process.” The Bank’s proposed Final Judgment of Foreclosure, prepared by its attorneys, stated: “Service of process having been duly and regularly obtained over DEBBIE BENNETT . . . .”
Once a defect in the return of service is shown, the burden of demonstrating regular service is on the party seeking to invoke the court’s jurisdiction. Bornstein, 39 So. 3d at 503; BoatFloat, LLC v. Cen. Transp. Int’l, Inc., 941 So. 2d 1271 (Fla. 4th DCA 2006). That burden was not met here. Christiana Bank, its trial court attorneys, and Christopher P. Mas of the process serving entity Pro-Vest LLC offered no testimony or other competent evidence to address the deficiency in service identified by Ms. Bennett’s counsel. Nor did Christiana Bank examine the process server’s notes after they were specifically called to its attention by Ms. Bennett’s newly-retained counsel, confess error by stipulating to the vacation of the final judgment, and allow Ms. Bennett to file and serve a responsive pleading.
Where no in personam jurisdiction is obtained over a defendant, the defendant is not required to demonstrate a meritorious defense to set aside the default. Ubilla v. L&W Supply, 637 So. 2d 994 (Fla. 3d DCA 1994); Gamboa v. Jones, 455 So. 2d 613 (Fla. 3d DCA 1984). The trial court should not have required Ms. Bennett to demonstrate a meritorious defense to the action once it became clear that the summons and complaint were never properly served.
It should be noted that there might have been some evidence of illegal, inflated billings by the foreclosing lender in this case, as highlighted by this excerpt from the appeals court ruling:
- Finally, an examination of the final judgment and supporting affidavit reveals an array of fees and charges that merit attention on remand. Charges for over $6,400 of force-placed insurance, “forbearance interest” of over $11,300 (above and beyond $14,817.73 in accrued interest from alleged default to the date of judgment), and unitemized, conflicting “foreclosure expenses” were contained in Christiana Bank’s affidavit and the final judgment without reference to the applicable provisions of the loan documents.
While we express no opinion regarding the validity or invalidity of these charges, we call them to the parties’ and trial court’s attention so that they can be addressed.
Representing the homeowner in this case was Joseph J. Pappacoda, Fort Lauderdale, FL.
(3) The appeals court in Kwong v. Countrywide Home Loans Servicing, L.P., No. 4D10-1129 (Fla. App. 4th DCA, December 15, 2010), kept its ruling short and sweet, as evidenced by its one-paragraph reversal:
- James Kwong and Lifen Li Kwong appeal from a non-final order denying their motion to quash service of process. They claim that service was defective because the process servicer failed to note, among other things, the time of service on the copy of the complaint served. Because strict compliance with statutory requirements of service is mandated, we conclude that failure to make the obligatory notations renders the service defective. We therefore reverse and remand for further proceedings. See Vidal v. Suntrust Bank, 41 So. 3d 401 (Fla. 4th DCA 2010).
Reversed and remanded.
(4) Go here for more posts on sewer service.