Was I Properly Served With a Mortgage Foreclosure Complaint?

If papers are not served properly upon a Defendant, the Court is not able to rule on a case relating to an individual if they were not legally made aware of it. Thus, when a foreclosure lawsuit is filed, a copy of the lawsuit must be served on the homeowner. If a homeowner is not properly served a Summons and Complaint, their legal rights have not been upheld and the lawsuit can be thrown out of court.

The Service of Process Is Not a Simple Procedure

There are various requirements process servers must adhere to or the Plaintiff risks having their Complaint dismissed by the Judge. According to § 48.031(1)(a) of the Florida Statutes, “service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section.”

Therefore, if you decide to step out of the house for a minute to run a few errands and a process server shows up at your front door while you are not home and hands your friend, neighbor, visiting relative or son or daughter who is unmarried and under the age of 15 your lawsuit papers, you can file a Motion to Quash for Improper Service of Process.

On the other hand, let’s say you were served properly – the process server served you personally or served an individual over the age of 15 that resides with you. Now, take a closer look at the complaint. Does the first page or somewhere on the complaint contain the date and time of service and the process server’s identification number and initials? If not, this is an additional requirement process servers must comply with for proper service.

Although Section 48.031(5) of the Florida Statutes provides “[a] person serving process shall place, on the first page of at least one of the processes served, the date and time of service and his or her identification number and initials for all service of process,” it was not until recently that the Court in Schofield v. Wells Fargo, N.A. actually held that failure of a process server to denote the date and time on the first page of the papers served on the defendant is defective service.

Make sure your due process rights have not been violated!