Foreclosure Defense Florida

Void Foreclosure Judgments Everywhere…They’re Subject to Collateral Attack Forever

void-judgement

A void judgment is a nullity, a brutum fulmen…and is subject to collateral attack and may be stricken at any time.   The passage of time cannot make valid that which has always been void.

Ramagli Realty v. Craver, 121 So. 2d. 648

Commit that quote to memory and repeat it often, it’s from a 1960 Florida Supreme Court Case.   Begin every conversation with attorneys from the foreclosure mills with that quote.   Read the quote to every realtor, title company, judge and policy maker.   Given what we know about “sewer service” and all the other improper activities of the service of process companies, title companies and foreclosure mills, we should all be very skeptical of any affidavits of constructive service and any judgments of foreclosure that are based on constructive service.

In our rush to push through foreclosure judgments and based largely on misplaced trust in the affirmations made by foreclosure mill attorneys to the court, summary judgments of foreclosure are being entered where there are real questions of fact and law.   While these cases are troubling enough, the real problems are those cases where the judgments are void because the court totally lacks jurisdiction over the parties based on faulty or improper service of process.

Most borrowers can be located with true and honest diligent search and inquiry, (just like the so-called lost notes), but like so many other facets of foreclosure work, the foreclosure mills and their minions have decided to take the path of least resistance, throw up a facially incorrect affidavit then move along to the next case.   Problem is…(repeat the quote)

A judgment entered without service of process, or faulty constructive service is void and may be attacked at any time.   See M.L. Builders, Inc. v. Ward, 769 So.2d 1079 Parties seeking relief from a judgment that is void are subject only to the “reasonable time” requirement of Fl.R.Civ.P. 1.540(b) in addition, in DeClaire v. Yohanan, 453 So.2d 375:

the Florida Supreme Court approved a chart which indicates that there is no time limitation for attacking a void judgment under Rule 1.540(b).

The Emergency Motion I’ve attached here lays out the facts that are important for courts to consider and contains most of the important case law that courts must apply when considering the issue.   You’re going to be hearing a lot more about Void Judgments and bankrupt title insurance agencies and we’ll all be suffering the consequences of all this slop for decades to come….remember that we were all amply warned of the consequences.     Soon I’m going to publish some information about another stunning phenomena- foreclosed homes that have unmarketable title due to judgment defects.

And now for the good stuff in this post…the Emergency Motion:

Emergency Motion To Cancel Sale- Void Judgment

 

ARE ALL CONSTRUCTIVE SERVICE JUDGMENTS VOID?

Thanks to my friend, Mark Stopa for pointing out another fatal flaw that is present in virtually all constructive/substitute service cases….the Plaintiff’s failure to allege jurisdiction.   I have never seen a complaint where substitute service is used and the complaint is amended to cite the appropriate jurisdictional basis for substitute service.   Based on this jurisdictional black hole, there are literally tens of thousands of constructive service foreclosure judgments out there that are void.   Which brings up another interesting point….why are there so many constructive service complaints out there anyway?   I don’t know the figures, but my rough estimate tells me that there is a very high percentage of foreclosure cases out there using constructive service when the Plaintiff could obtain personal service, but chooses not to.   The case law seems clear to me that failing to amend the complaint and this faulty use of substitute service renders the judgment void.   Read below:

If the complaint fails to allege the jurisdictional requirements for substituted service as prescribed by the statute, a defendant cannot be
properly served by substituted service and a motion to quash service of process should be granted. Drake v. Scharlau, 353 So.2d 961, 964 (Fla. 2d
DCA 1978).

When using substituted service under section 48.171, a plaintiff must meet two requirements. First, the complaint must allege the ultimate
facts bringing the defendant within the purview of the statute. See Monaco, 810 So.2d at 1085; Wiggam v. Bamford, 562 So.2d 389 (Fla. 4th DCA
1990). This requires the plaintiff to "allege in his complaint that the defendant was a non-resident, or a resident of Florida who subsequently
became a non-resident, or a resident of Florida concealing his whereabouts." Journell v. Vitanzo, 472 So.2d 827, 828 (Fla. 4th DCA 1985). Second, the service must strictly comply with section 48.161, which sets forth the method of substituted service of process. Monaco,
810 So.2d at 1085.


When the complaint is devoid of the jurisdictional allegations required for substituted service, the defendant cannot be properly served under the
substituted service statute. Id. (citing Drake v. Scharlau, 353 So.2d 961, 964 (Fla. 2d DCA 1978)). Where, as here, the complaint only alleges that the defendants were residents of Dade
County, the defendants are only subject to personal service. See Drake v. Scharlau, 353 So.2d 961, 964 (Fla. 2d DCA 1978). Since the plaintiff did not personally serve the defendants and substituted service was defective, the trial court should have
granted the defendants' motion to quash service of process. As the trial court never acquired personal jurisdiction over the defendants, the verdict must be set aside and the matter
remanded. 

4 Comments

  • michael says:

    Extrinsic fraud — fraud on the Court — also renders a judgment void. What is extrinsic fraud? It’s typically fraud in affidavits that an ordinary person can’t be expected to find.

    The laws were written mainly for family (divorce) court to discourage spouses from hiding assets. Hide it and if he/she finds it years later we’ll turn over a judgment and distribute it. Of course, hidden assets in divorces look a whole lot like hidden assets in foreclosures, don’t they? And even though the rule comes from family court it applies to all courts.

    Lie in an affidavit, and make it a lie that an ordinary practitioner can’t find, and the judgment is subject to attack and set aside forever.

    Extrinsic fraud has no statute of limitations.

    Title insurers especially may want to take note of this. Just so you can’t say in a few years you didn’t know here’s a public warning: if you write title insurance on a house taken make sure the assignments were valid (no forged signatures) and the assignors and assignees held valid title. Otherwise, get ready to pay up. Title re-insurers; no bailouts for you — here’s your warning. There’s more than enough evidence that writing policies can be construed as reckless.

  • mp3rmd729 says:

    Matt, this is an awesome and brilliant Motion! I only wish we could have used it in our case in CA. My husband and I are Pro Se Plaintiffs in a case against MERS, and 4 other corporations. Unfortunately for us, the judge denied our TRO and subsequently, the sale of our home occurred anyhow. Despite the fact the Bank (US Bank National Association) that bought our home from the sale at auction and is also a Defendant in our open civil case, they are rushing to confiscate our home. We thought that they should be enjoined from further action on our property that is in litigation! They filed a UD (unlawful detainer) in a different court. Is there a way we can use a similar Motion in the UD hearing (or prior to it), and/or in our open and pending case (unlimited civil case) in which we have served all parties and are still awaiting their answers to the complaint??? Help! The Bank is being ruthless and breathing down our necks like some monster ready to devour our home, without regard to the law!

  • indio007 says:

    Judgments rendered where plaintiff had no standing (no note, defective assignment) is void ab initio for lack subject matter jurisdiction and coram non judice.

    The judge themselves are a trespasser and have no immunity.

    Coram non judice proceedings will not divest one of the lawful possession of title to his property, is a very important rule involving procedure and Caveat emptor as well. Purchasers under execution and judicial sales are charged with knowledge of all the mandatory record shows. They must take notice of nullities or void proceedings but not formal defects or mere irregularities. The former are void ab initio,2″² and of this the nullity is wholly judged by the mandatory record.
    The coram non judice proceeding is pregnable to collateral attack. To this it is always vulnerable; time or laches will not cure it.Collateral attack is the last stage of the application of the rule that the general demurrer searches the whole record and attaches to the first substantial fault, likewise of the motion in arrest of judgment. This rule of the general demurrer, the motion in arrest of judgment and of collateral attack is not waivable in character. It involves defects that cannot be waived. It involves grave jurisdictional defects that it is contrary to public policy to waive. The parties named upon the record cannot waive where they cannot contract or stipulate; they cannot dispense with the rule that a court is bound by its record; no court can lawfully proceed unrestrained. A court without a right record and bound thereby is without the pale of the law, and then its proceedings are coram non judice; such proceedings need neither objection nor exception in order to predicate objections thereto in .appellate procedure or elsewhere.1″² The coram non judice proceeding so appearing from the mandatory record is worthless for all purposes. It is a nullity, or a void thing. No title or right can be predicated thereon. It cannot be the basis of any substantive right. But it is otherwise with a merely voidable or erroneous judgment. Rights gained or founded thereon by a third person are substantive rights, and he is viewed as a bona fide purchaser, although the judgment is reversed on a direct attack,on appearance or proceedings in error. In the latter case, however, it is the judgment creditor alone who must account for all benefits and advantages derived from the irregular judgment. After its reversal he is liable upon an action for money had and received; he may be liable in many forms of remedy.
    From the foregoing arise many aspects showing the intimacy of what are often called adjective law and substantive law, and which to many appear Inseparable. If so, then there is no such distinction and therefore the ” parol evidence rule” may properly be treated with both evidence and contract discussion.2″²
    If property is sequestered and sold under a coram non judice proceeding no rights whatever are vested or pass thereunder. It now seems that the owner of property may defend it against all claiming under a coram non judice proceeding as he might against an ordinary trespasser.
    Grounds and rudiments of law
    William Taylor Hughes

    IF YOU WANT THIS CRAP TO STOP START ATTACKING THE JUDGE”S, THEY ARE ACCOMPLICES TO THE FRAUD AND ARE DENYING SUBSTANTIAL JUSTICE .
    What will happen to the real estate market when there are millions of homes with a clouded title?
    A complaint without a competent fact witness with first hand information of the truth is a nullity. Void ab initio. CORAM NON JUDICE. The judge is a trespasser as he has not performed a ministerial duty to insure proper pleadings.

  • kneat39 says:

    What options do I have when the bank has proceeded with a foreclosure and they have no proof of claim which I havef asked for on a numerous occasions, can I file a negative avertment and counter claim in the courts or is there something else I can do?

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