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.

For example, Florida Statutes Section 48.194(1) requires that service outside the State of Florida be made “in the same manner as service within this state by any officer authorized to serve process in the state where the person is served.”
Florida Statutes Section 48.031(5) states that service in Florida requires the person serving process to place on the copy served “the date and time of service and his or her identification number and initials for all service of process.”
Florida Rules of Civil Procedure 1.070(e) provides that “[t]he date and hour of service shall be endorsed on the original process and all copies of it by the person making the service.”

Florida Rules of Civil Procedure 1.070(e) provides that “a copy of the initial pleading shall be delivered to the party upon whom service is made.”

The courts have held that these requirements “that govern service of process are to be strictly construed to insure that a defendant receives notice of the proceedings . . . [T]he burden of proving the validity of the service of process is on the plaintiff.” Anthony v. Gary J. Rotella & Associates, P.A., 906 So.2d 1205, 1207 (Fla. 4th Dist. App. 2005), quoting Carter v. Lil’ Joe Records, 829 So.2d 953 (Fla. 4th Dist. App. 2002). “Absent strict compliance with the statutes governing service of process, the court lacks personal jurisdiction over the defendant.” Anthony v. Gary J. Rotella & Associates, P.A., 906 So.2d 1205, 1207 (Fla. 4th Dist. App. 2005), quoting Sierra Holding v. Inn Keepers Supply, 464 So.2d 652 (Fla. 4th Dist. App. 1985).

Improper service of process should be raised at the first opportunity by the defendant’s Florida lawyer.

Process servers outside Florida must follow Florida laws when serving a summons and complaint for a Florida lawsuit in another state.