Recent reports indicate that approximately 462,339 foreclosure cases were pending in Florida as of June 30.
Following Ally Financial, Bank of America, JP Morgan Chase, and PNC Bank foreclosure moratoriums, Wells Fargo’s settlement of misleading marketing charges, and Attorney General’s investigation into Florida Default’s flawed foreclosure practices Law Group, The Law Offices of David J. Stern, PA; the Law Offices of Marshall C. Watson, PA; and Shapiro & Fishman, LLP, researchers have discovered a new problem.
Process servers are now alleged to have submitted false affidavits in support of personal service in foreclosure matters.
Foreclosure defense attorneys claim to have documented several cases in which process servers submitted false affidavits. While investigating law firms that employed “automatic signatures,” state investigators are also closely examining the service of process in several cases.
Recent foreclosure defense cases allege that homeowners never received a subpoena even though they were still occupying their home, while others allege that process servers did not take the necessary steps to locate them or submitted false affidavits about who or when. they delivered the documents.
According to the lawsuits, some process servers violated the rules related to the personal delivery of legal documents. Like auto-signing foreclosure documents without checking for accuracy, several homeowners now claim they were never served foreclosure documents.
Once rare, the “bad service” of the process has become more common as lenders and their attorneys expedite thousands of foreclosure cases through “rocket files” that are designed to clear an ever-growing backlog.
“With the foreclosure debacle, it’s gotten more complicated,” says Carlos J. Reyes, a foreclosure defense attorney at Reyes Law Group in Fort Lauderdale. “For the sake of convenience, process servers are being rushed. Since they are being paid by the piece, they have an interest in earning a higher income.”
Homeowners involved in foreclosures should receive a summons and complaint personally delivered by a process server. Repeated attempts at personal service are required before court permission to post alternative legal notice can be obtained.
Some process servers have supposedly taken shortcuts. One recently claimed that he was unable to find a homeowner facing foreclosure on a second home, despite conducting a thorough record check. This held true even though the foreclosure lawsuit clearly provided a primary residential address in Connecticut.
Lenders and attorneys often contract their subpoena service work to large process service firms, which they outsource to independent private servants. In her statement to state investigators, Stern’s former paralegal, Tammie Lou Kapusta, testified that the subpoena procedures were a “complete disaster,” and homeowners routinely complained that they never received documents.
She and another former employee, Kelly Scott, said their managers told them to go ahead with the foreclosures anyway.
Investigators also questioned staff at Stern’s firm about billing practices that involved serving multiple parties at one address and billing for each.
“Good service of process is crucial,” Reyes said. You have heard that homeowners lost their home because they never received a subpoena and did not meet filing dates or court hearings.
While a subpoena must be accepted by an adult, state law does not require that it be served on the property owner. No one has to sign, verifying the receipt, “which makes it easier to say that the person was treated, when he was not,” Reyes said.
Laws governing service of process vary from state to state. In Florida, there is no statewide licensing or regulatory body for process servers, and the rules vary widely among the 20 judicial circuits.
Among the largest with operations in ten states is Tampa-based ProVest. Although ownership interest has been denied by the law firms, they maintain support staff at the Law Offices of David J. Stern and Shapiro & Fishman in Boca Raton. Marshall C. Watson also uses ProVest.
While ProVest declined to comment on specific cases, company president James Ward stated that they “use licensed or duly licensed independent contractors” and require them to “fully comply with state and local guidelines.”
For more information on the foreclosure crisis or to file a complaint with the Attorney General’s Office, visit their website at http://www.myfloridalegal.com or call (866) 9-NO-SCAM (866- 966-7226).
Source: The Credit Report with Bill Lewis – Highlands Today, an issue of the Tampa Tribune (Media General Group) – http://www2.highlandstoday.com/content/2010/nov/07/foreclosure-defense-process-servers- supposedly -fili /