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:
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.