Lack of jurisdiction and insufficiency of service in foreclosure defense:
The wave of foreclosures ripping across the nation and the desire of lenders to speed up the process often results in plenty of mistakes being made along the way.
When you hire an experienced foreclosure defense attorney, you can count on them finding any flaws the lender has made along the way and using them as an advantage to aid in your defense.
So how are banks and lenders failing to achieve jurisdiction?
In many cases, we have found situations where the Lender A changed their name to Lender B. That might not seem bad on the surface, but when we dig a little deeper into some of these, we find that while Lender A was authorized to do business in the State of Florida, Lender B often times had not actually registered a ficticious name pursuant to Florida Statuates section 865.09.
If a business fails to comply with this section, the business, its members, and those interested in doing such business may not maintain any action, suit, or proceeding in any court in Florida until this section is complied with.
Furthermore, any action, suit, or proceeding may not be maintained in any court of this state by any successor or assignee of such business on any right, claim, or demand arising out of the transaction of business by such business in this state until this section has been complied with.
How does their lack of authorization to conduct business in Florida allow a quash of service defense?
A Motion to Quash Service of Process pursuant to lack of jurisdiction over the person, Rule 1.140(b)(2) and insufficiency of service of process, Rule 1.140(b)(5) can be instituted because the lender failed to comply with Florida law by not filing the lawsuit through an entity authorized to do business within the State of Florida.
It is up to the lender to comply with the ficticious name requirements as outlined in Florida Statute 865.09 prior to filing and serving any summons or complaint against any homeowner.
Furthermore, the lender is barred from filing and serving any summons or complaints until compliance with 865.09 can be achieved.
What other issues can lead to the opportunity to file motions for quashing service of process?
If the lender fails to comply with Florida Statute 48.031 which states:
48.031 Service of process generally; service of witness subpoenas.--
(1)(a) 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. Minors who are or have been married shall be served as provided in this section.
If the lender fails to comply with another part within Florida Statute 48.031 that states:
(5) A person serving process shall place, on the copy served, the date and time of service and his or her identification number and initials for all service of process.
Florida case law and court opinions regarding service of process:
1. In Vidal v. Suntrust Bank, 41 So.3d 401 (Fla. App., 2010) the Court noted: "Because the requirement to note the time on a copy of the complaint is a statutory requirement of service, and strict compliance with statutory requirements of service is mandated, we conclude that failure to note the time of service renders the service defective."
2. "A judgment entered without due service of process is void." Falkner v. Amerifirst Fed. Savs. & Loan Ass'n, 489 So.2d 758, 759 (Fla. 3d DCA 1986).
3. "Absent strict compliance with the statutes governing service of process, the court lacks personal jurisdiction over the Defendant". Sierra Holding v. Inn Keepers Supply, 464 So 2nd. 652 (Fla. 4th DCA 1985). Fl. Rule Civ Pro 1.140;
4. "The burden of proof to sustain the validity of service of process is on the party seeking to invoke the jurisdiction of the court." Carlini v. State Department of Legal Affairs, 521 So.2d 254 (Fla. 4th DCA1988). "The burden of proving the validity of service of process is on the plaintiff." Henzel v. Noel, 598 So.2d 220 (Fla. 5th DCA 1992).
5. In Carter v. Lil Joe Records, 829 So. 2nd 953 (Fla. 4th DCA 2002) the court notes: "It is well established in Florida that:
The object to be accomplished by service of process is to advise the defendant that an action has been commenced against him and warn him that he must appear within a certain time and at a certain place to make such a defense as he has.
Jurisdiction is perfected by the proper service of sufficient process. Chapter 48, Florida Statutes, regulates process and service of process. These statutes governing service of process are to be strictly construed to insure that a defendant receives notice of the proceedings. The burden of proving the validity of service of process is on the plaintiff." Abbate v. Provident Nat'l Bank, 631 So.2d 312, 313 (Fla. 5th DCA 1994) (citations omitted).
How can Fernandez Law Group help me raise the lack of jurisdiction and insufficiency of service defense?
Fernandez Law Group has been handling foreclosure defense for years. Our training and experience has given us a strong foothold in the industry as one of the top foreclosure defense law firms in Florida.
We know what deficiencies need to occur at the hands of the lender in order for us to properly challenge the validity of service and jurisdiction. Once we make that challenge, the burden of proving validity of any service of process will become that of the lender or moving party. This will effectively stop and end any additional proceedings until the lender can become compliant.
While a simple denial in some cases may not sufficient enough to challenge the validity of service, we have found flaws within the notes of process servers that show discrepancies where the served copy doesn't match the return.
Using this method when applicable will also provide you with additional time to work on other forms of long term foreclosure defense solutions and alternatives.
At Fernandez Law Group, we analyze each client's particular case to develop a customized plan to defend the foreclosure proceedings. Our qualified attorneys will work directly with each lender to create options for homeowners who are or have fallen behind on their mortgage obligations.
Contact our office today at 813-489-3222 for a free no-obligation consultation.
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Content authored by Gaston Fernandez
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