In a straightforward, two-paragraph ruling, a three-judge panel of Florida's Fifth District Court of Appeal recently reversed another foreclosure judgment from an Orange County Circuit Court issued by Senior Judge Emerson R. Thompson, Jr.
As was the case in an earlier ruling from this rubber-stamper,(1) the dearth of extensive legal analysis in this case in which the three-judge appeals panel needed only two paragraphs to dispose of, coupled with the fact that no attorney bothered to appear on appeal on behalf of the foreclosing bankster, is an indicator that the foreclosure judgment was so obviously flawed on its face that it shouldn't have required the effort and expense to seek an appeals court correction to arrive at the proper result in the first place.(2)
Again representing another screwed-over homeowner was Kaufman, Englett & Lynd, PLLC, of Orlando, Florida.
For the ruling, see Silva v. BAC Home Loans Servicing, L.P., 5D10-3511 (Fla. 5th DCA, May 6, 2011).
(1) See Florida Appeals Court Reverses Foreclosure Judgment, Boots Case Back To Lower Court As 'Senior' Judge Gets 'Nabbed' For Empty-Headed, Rubber-Stamping.
(2) The court ruling follows:
- Abner Silva, the defendant below, seeks review of an order denying his motion to set aside a default final judgment entered against him. We reverse.
In this foreclosure case, substituted service of process was secured on Silva under section 48.031, Florida Statutes (2010), by serving a “Luz Rodriguez”, who purportedly lived at the mortgaged property. However, the affidavits and other information submitted in support of Silva’s motion below established that the mortgaged property had been vacant for some time prior to the purported service, that he did not know anyone by the name of Luz Rodriguez, and that his usual place of abode was, and had been for eighteen months prior to the purported service, in Miami.
The party seeking to invoke the court’s jurisdiction has the burden to prove the validity of service of process. See Torres v. Arnco Constr., Inc., 867 So. 2d 583, 587 (Fla. 5th DCA 2004). This record does not reflect competent evidence that BAC Home Loans Servicing L.P., the plaintiff below, met that burden. The default judgment was, therefore, void and must be set aside. See Alvarez v. State Farm Mut. Auto. Ins. Co., 635 So. 2d 131 (Fla. 3d DCA 1994).