When I started defending foreclosures years ago there was no real defense. The homeowner did not pay, the plaintiff was suing and they were eventually going to win. My how things have changed in a short period of time. Today there are widespread and well substantiated allegations of fraud and improper practices on the part of banks, mortgage companies and the law firms and other agents working to throw Americans out into the streets. In so many cases the question is not whether your client is going to lose the case, but how many questionable things can you find in the foreclosure lawsuit.
This leads us to the emerging line of legal questioning the community of Foreclosure Defense Warriors are engaged in and that is whether previously entered judgments are Void or merely Voidable. That question looms like a 800 pound Gorrilla in courtrooms all across this state. When the full specter of issues related to flawed Service of Process is raised, we will have a real sense of how big the most glaring issues of blatantly Void judgments are. All judgments based on fraudulent service are VOID. They don’t exist, they did not happen. To the homeowner living in that new home after purchasing from the bank…..sorry, but you don’t actually own that home, your deed is worthless. To the bank that gave that mortgage to purchase that home, your lien is not valid. This line of inquiry is shaking the title industry to the core as they struggle to play a game of “Not my problem; it’s yours”…trying to pass the liability off on the lenders who foreclosed. Next, the investors are trying to hold the servicers and lenders accountable as evidenced by the recent letter from Deutsche Bank to the servicers stating, “we ain’t gonna be liable for your screw ups”. This showdown is also a focal point of investor lawsuits against the major servicers, most especially Bank of America. They’re all saying, you guys screwed this up and we’re not going to hold the bag. (Bank of America is saying “Screw You” you’re on your own. Obama is saying, “foreclosures are good, we don’t need no moratorium.)
These are not abstract questions that will have no consequences. In fact, during a recent meeting of the judges and attorneys in Florida’s Sixth Judicial Circuit, it was acknowledged that these questions are going to plague our courts for years to come, as you can read in the attached article in the St. Petersburg Times.
“Even when judgments have been entered and sales have happened, they may say, ‘Whoa, that may have been sold improperly,'”ˆ” McGrady said. “We’re going to have title issues and all those things. And every motion, everything that’s brought to the attention of the court will require a hearing of some sort. We’re working through it, but it will take that much longer.”
This issue is part of the larger and important work of a highly specialized group of foreclosure defense attorneys who have a broad range of experiences and who meet in secret locations regularly to discuss such issues and work through the much deeper and more significantly troubling aspects of this foreclosure insanity. The JEDTIS (Jurists Engaged in Defense of Title Integrity) are a group formed by Clearwater attorney Greg Clark and include some of the brightest minds in all areas of the law. If you’re looking to determine whether you have title claims, void (or voidable) judgments or have any number of other claims related to your foreclosure suit, especially any potential appellate cases, contact me for a referral to one of the JEDTI Masters.
For those attorneys who are just beginning your inquiry into VOID or VOIDABLE judgments, please see some of the initial case law research and discussions on the issues. The following is intended to assist attorneys in reviewing and intake of cases, please forward your cases to me for review and consideration by the JEDTI masters who are standing by ready to return the rightful owners to their property after proving up that the current “owners” of homes are merely posessors of the home subject to VOID deeds.
Judgments which are void at the outset, may on motion at any time be vacated. See Fla.R.Civ.P. 1.540 (b).
Diligence to serve by publication: Wiggam v. Bamford, 562 So. 2d 389 (4 DCA 1990), Gans v. Heathgate-Sunflower Homeowners, 593 So. 2d 549 (4 DCA 1992), Hobe Sound Ind. Park v. 1st Union Nat. Bank, 594 So. 2d 334 (4 DCA 1992); Batchin v. Barnett Bank, 647 So. 2d 211 (2 DCA 1994). Forecl judgment entered where sworn statement defective on its face voids sale, even as to non-party bidder. Gans; HOWEVER, see later 4th DCA case Demars, which says it is only voidable. See also Fund Concept, Forecls V. Absentee Owners, Jan 93; and III Fla. Real Property Practice (CLE 1976), s. 5.26. Sworn statement need not set out search facts, but judgment voidable if insuffic diligence, so better practice to set out. Demars v. Village of Sandalwood LAkes, 625 So. 2d 1219 (4 DCA 1993).
If the trial judge were to find the affidavit to be defective on its face, service would be void as to the bona fide purchaser. If the trial judge finds the affidavit sufficient on its face, but were to determine that a diligent search was not performed, the foreclosure would be voidable, not void, as to the bona fide purchaser. See generally 33 Fla. Jur. 2d Judicial Sales § 13 (2009). On the face of the affidavit of diligent search before us, we find that the affidavit is sufficient for purposes of service by publication and that the trial court did not grossly abuse its discretion in so holding. In light of the necessary reliance on the public record by a bona fide purchaser, the affidavit of diligent search was sufficient on its face to establish that an adequate search had been made to locate an address for service upon Lewis prior to effecting constructive service. The resultant foreclosure sale to the bona fide purchaser cannot be set aside. First Home View Corp. v. Guggino, 10 So. 3d 164 (Fla. 3d DCA 2009) (holding that trial court errs in vacating final judgment of foreclosure in sale of property to bona fide purchaser where homeowner is constructively served by publication and affidavit of diligent search is legally sufficient to establish that an adequate search has been made prior to constructive service); Southeast & Assoc. v. Fox Run Homeowners Ass’n, 704 So. 2d 694 (Fla. 4th DCA 1997) (holding that notice by publication is adequate where affidavit of diligent search is facially sufficient and foreclosure sale to bona fide purchaser is merely voidable, and not void, and cannot be set aside)
847 So.2d 555 RINAS v.RINAS; 1D09-2170 SOUTHEAST LAND DEVELOPERS v. ALL FLORIDA SITE AND UTILITIES, INC.,; 625 So.2d 1219 18 Fla. L. Weekly D911, DEMARS v. SANDALWOOD LAKES; 168 So.2d 183 EVANS v. HYDEMAN
