Foreclosure Defense FloridaGeneral Information

Flawed Service of Process Renders Foreclosures Void- Should Sheriffs Halt All Writs of Posesssion?

Just this week, Ice Legal treated us all to another BOMBSHELL of an appellate court case….KWONG v. CTRYWD. HOME LOANS SER., 4D 10-1129 (Fla.App. 4 Dist. 12-15-2010).
Let’s all make sure we don’t miss the impact of this case and take an opportunity to talk about problems with potentially thousands of foreclosures that are polluting our court systems across the state.   In the rush to drive this foreclosure bus off the cliff, our state has entrusted our entire civil justice system and in fact the very foundations of our economy in the hands of a small and as yet totally unidentified group of individuals known as “Special Process Servers”.
Here’s the deal…in the good old days only the Sheriff in each county was entrusted with the responsibility of assuring the courts that the defendants in each civil case actually received their summons and lawsuit.   This first action in a lawsuit was recognized as being so important that we only trusted our elected and sworn sheriff with this task.   When the Sheriff returned the summons to the court, that was proof positive that the defendant was actually served with the lawsuit and knew it was out there.
I haven’t done the legislative history on this, but somewhere along the way, it was decided that we could farm out this most critical function of our entire civil justice system to private parties.   Take a close read of Florida Statues Chapter 48 and 49.
In my opinion, the statutory requirements are far too lax and I believe the entire regime is subject to abuse.   I believe we’re going to find as we continue the post mortem examination of our economic and judicial breakdown that this system has been exploited.   Service of Process is already being quashed in those cases where we can identify problems with the purported service (like the person wasn’t actually served).   Now we need to closely examine all the people that were actually allegedly doing the service.
The entire system is set up to be exploited and I don’t think there’s nearly enough checks and supervision to ensure that the process has not been grossly abused.   Because Special Process Servers are appointed by the Sheriffs in each county, and because I believe it’s prudent to conduct a review of the entire service of process system, I think our Sheriff’s should halt serving all Writs of Possession until the integrity of service of process in their county can be confirmed.   A few basic questions that must be answered:
1) Is the process server’s appointment current, valid and active?
2) Does the purported signature of the process server match the signature on the return of service?
3) Is the process server complying with the strict and very clear requirements of statute?
4) Is the commissioned process server actually making the alleged service of process?

If the answer to any of those questions is “No”, then the entire case has to be started all over again.   When we start uncovering evidence of systemic breakdown we’re going to be confronted with much larger problems and issues.   What is the cumulative impact if a process server’s appointment was not renewed and she went out and served hundreds of lawsuits all across the county?   What is the cumulative impact if a process server’s signature on returns of service does not match?   Was someone else doing the purported service or was someone else filling out the return of service?   Has anyone collected statistics on the attempts of service for process servers to determine whether all the alleged services are even statistically possible?

The Failure of the Process of Service of Process is another chapter in the revolting book called, The Failure of Everything and Everyone.   At some point in the post mortem examination, we’ll have to examine the whole system, but for now, let’s just take a close look at each case and remember…..

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).

Make no mistake, I’m a vocal and persistent defender of law enforcement and our Sheriffs. I want my law enforcement and judicial budgets pumped up.   I want law enforcement officers well paid and budgets full.   Now here’s a bombshell of a question…what if our Sheriffs departments across the state had been doing the service of process in the hundreds of thousands of foreclosure cases that have been filed and are currently pending? I’m no math wizard, but how ’bout we calculate the number of foreclosures filed in the county for 2009, then multiply by the average number of defendants. (Let’s not inflate that number with Unknown Spouses #4-#310 and Unknown Tenants #8- #240)

What you’re talking about is quite literally millions of dollars in revenue for each county’s law enforcement budget, paid for by the private sector that caused all this mess.   As a consumer, a taxpayer, a voter, I would much rather see these millions of dollars being earned by my law enforcement and that money being used to pay for guns and cars and jobs and benefits for men and women who take an oath to Protect and Serve than seeing that money diverted into the hands of private companies with profit as a necessary business model.

This MULTI MILLION DOLLAR revenue issue for local law enforcement is yet another powerful reason why our courts need to clear the current backlog of stalled and flawed foreclosures through dismissals and force the firms to refile the cases….

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