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My Mortgage Lender Never Served The Lawsuit On Me, Now What?

James W. Martin

So, the latest news on the Florida mortgage foreclosure debacle is property owners claiming they never got served with court process for the mortgage foreclosure on their Florida real estate. Can they undo the foreclosure? What if the lender says it tried to serve them but could not find them? Who’s right?

It’s not a new problem. It’s been around as long as lawsuits. It’s just more frequent now because of the huge number of lawsuits on file in Florida due to the economic calamity of the last three years that culminated in mortgage foreclosure suits being filed by “foreclosure mills” that churn out case after case so that we have tens of thousands of pending cases in Florida.

In all those cases, it’s bound to happen that some borrowers cannot be found to serve with court process in the foreclosure case. Does that mean the foreclosure cannot go forward? If it did, then all you would have to do to avoid the foreclosure would be to avoid the process server.

But, it’s not that easy. Foreclosure is what is called an “in rem” proceeding, meaning that it is against the property and not against the person. The mortgage holder can proceed with the foreclosure if it cannot find the mortgage borrower after undertaking diligent search.

Florida law allows for alternative forms of service of process, such as constructive, substituted, etc. That’s why you read notices published in newspapers stating that such-and-such is suing so-and-so in some other state. They could not find that person and are using an alternative form of process to obtain “in rem” jurisdiction over the property in the lawsuit. It’s done all over the country, not just in Florida.

So, unless the U.S. Supreme Court find this concept, which has been around for many generations, to be unconstitutional, I suspect the lenders will win. (Of course, the robosigner defense might help some borrowers undo mortgage foreclosure.)

As a Florida lawyer, it’s interesting to read on the front page of the morning newspaper about service of process and other legal concepts I thought no one else cared about. Unfortunately, if you’re the one we’re reading about, then it’s more than interesting.

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