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Hidden Defect in Service of Process Defense

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No one wants to be served with court papers but what you may not know is there may be a hidden defect in service of process defense for foreclosure.

I’m Eric Lanigan an attorney with Lanigan and Lanigan in Winter Park which is in the greater Orlando area. I want to talk for a minute about something I’ve recently found which I think is a hidden defect in almost every foreclosure case that’s out there.

And I have to start by confessing that although I’ve been in practice for 35 years almost exclusively in civil litigation this is something I did not know and that is that the statute that deals with service of process. And service of process is when the process server the deputy or a private process service comes to your home or place of business and serves you with a copy of the court papers.

Hidden Defect in Service of Process Defense for Foreclosure

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There’s several things in the statute about who can be served, members of the household, 15 years of age or older, but there’s one thing in the statute that I never knew was there. And that is that the process server must not only serve you but they must give you an explanation of what they are giving you. They must explain the summons and the complaint.

Now I don’t think they have to give you comprehensive legal analysis, but they have to give you some basic explanation of what you’re being served. Is it a complaint for a personal injury from a car wreck. Is it for breach of contract? Is it mortgage foreclosure?

They have to give you some rudimentary explanation of what you’re being served and then also it says to explain the summons. And the summons is the document that says you’ve got 20 days to file some response to the complaint and who to send it to.

Now my experience has been that that never happens. I have over the years been a resident agent for many many companies which means if that company gets sued or served with any papers they serve them on the resident agent. And over the years I’ve been served papers like that many, many times. And the same thing happens every time: the process server walks up.

I come out.

“Are you Eric Lanigan?”

“Yes I am.”

He hands me the papers and leaves. No discussion, no explanation of anything.

Improper Service of Process in Foreclosure Action

I recently read about a case which brought all of this to my attention because in this case, it was a foreclosure action. The homeowners’ attorney filed a motion to dismiss which included a motion to quash or dismiss because of invalid or improper service of process. And it was based upon the failure of the process server to provide any explanation of the summons or the complaint.

And there was affidavit or verification by the homeowner that it was a standard I.D. and drop:

“Are you Mr. Jones?”

“Yes I am.”

Hands him the papers and walks away. There was no response to that and I’m sure it was included in a motion along with several other issues. The trial court denied the motion. The homeowners’ lawyer appealed. And an interesting thing happened which I think that this was how I came to read about this.

Is that after the homeowner filed their initial brief with the appellate court the standard process would be or the bank to file their answer brief instead the bank conceded the point. And basically said, the homeowner’s right. Service of process is invalid. We’ll start over again.

Since then I’ve been asking every new client who comes in on a foreclosure action, and frankly, I’m going to ask it in every kind of action from now on. But I’ll ask the same question every time: Other than asking to identify yourself what else were you told? And I have gotten one answer every single time. And the answer is, nothing.

So this is going to become a defense that we’re going to be using over and over and over again and you’re probably going to find that it exists in almost every case.

Again, I’m Eric Lanigan, an attorney with Lanigan and Lanigan in Winter Park, a suburb of Orlando, Florida. If you have had a similar experience and would like to work with the Lanigans on your home’s foreclosure defense just call 407-740-7379 to make an appointment to discuss issues on your case. 

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