Recent reports indicate that approximately 462,339 foreclosure cases were pending in Florida as of June 30.
Following foreclosure moratoriums by Ally Financial, Bank of America, JP Morgan Chase, and PNC Bank, Wells Fargo’s settlement of deceptive marketing charges, and the Attorney General’s investigation into flawed foreclosure practices in Florida Default Law Group, The Law Offices of David J. Stern, Pennsylvania; 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 to support personal service in foreclosure matters.
Foreclosure defense attorneys claim to have documented a number of cases in which process servers submitted false affidavits. While investigating law firms that employed “robo-signers,” state investigators are also taking a close look at service of process in several cases.
Recent foreclosure defense cases allege homeowners never received a court summons despite still occupying their home, while others allege process servers failed to take steps to locate them or filed false affidavits as to who or when. They delivered the documents.
According to the lawsuits, some process servers violated rules related to personal service of legal documents. Like auto-signing foreclosure documents without reviewing them for accuracy, several homeowners now claim they never received foreclosure documents.
Once rare, the “poor service” of the process has become more common as lenders and their attorneys expedite thousands of foreclosure cases through “fast files” that are designed to eliminate an ever-increasing backlog.
“With the foreclosure debacle, it’s gotten more complicated,” says Carlos J. Reyes, a foreclosure defense attorney with the Reyes Law Group in Fort Lauderdale. “In the interest of convenience, process servers are being rushed. Since they are paid by the piece, they have an interest in earning more.”
Homeowners involved in foreclosures must receive a summons and complaint hand-delivered by a process server. Repeated attempts at personal delivery are required before court permission can be obtained to post a legal notice in the alternative.
Some notifiers have allegedly taken shortcuts. One recently claimed that she could not find a homeowner facing foreclosure on a second home, despite conducting extensive record checks. This was true even though the foreclosure lawsuit clearly provided a primary address in Connecticut.
Lenders and attorneys often outsource their subpoena service work to large process service companies, which outsource to independent private servers. In her statement to state investigators, Stern’s former paralegal, Tammie Lou Kapusta, testified that citation service procedures were a “complete mess,” with homeowners routinely complaining that they never received the 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 regarding billing practices that involved servicing multiple parties at one address and billing for each.
“Good process service is crucial,” Reyes said. He has heard of homeowners who lost their home because they never received a summons and missed filing dates or court hearings.
Although a summons must be accepted by an adult, state law does not require that it be served on the property owner. Nobody has to sign, verifying the receipt, “which makes it easier to say that the person was served, 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 the law firms’ ownership interest has been denied, 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 properly licensed or licensed independent contractors” and require them to “comply fully with state and local guidelines.”
For more information about the foreclosure crisis or to file a complaint with the Office of the Attorney General, 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, a Tampa Tribune Edition (General Media Group) – http://www2.highlandstoday.com/content/2010/nov/07/foreclosure-defense-process-servers- reportedly -fili/
