Foreclosure defense attorneys have long alleged that process servers occasionally file false affidavits in support of personal service in foreclosure matters. Some homeowners are defending themselves stating that mortgage lenders did not serve them properly.
Contrary to the sworn affidavit of process server Robin Lucas-Peters in one South Florida foreclosure case, the homeowner was not served at all. Having died on August 4, 2010 “personal service” upon him on April 21, 2011 was simply not possible.
“It’s equivalent to perjury,” said Andrew Dinnerstein, the Sunrise attorney representing the family of the deceased. “The system is being abused to such an extent that people aren’t even being served properly.”
The homeowner has not been identified to protect the family’s privacy.
Foreclosure defense attorneys have documented a number of cases where process servers allegedly filed false affidavits. While investigating the law firms that employed “robo-signers,” state investigators are closely examining the service of process in a number of cases.
The process server in this case said she attempted to serve the homeowner on five separate occasions. On the fifth attempt, the person answering the door said he was the homeowner being sought and accepted the foreclosure papers.
Several recent foreclosure cases allege homeowners never received foreclosure papers even though they still occupied their home. Others allege that process servers did not take the required steps to locate them or filed false affidavits about whom or when they delivered papers.
This is the first reported case of a deceased homeowner being served with foreclosure papers.
Lucas-Peters filed a falsified document, swearing foreclosure papers were properly served when they were not, Dinnerstein said.
When a homeowner is deceased, the mortgage lender must request that the court assign an administrator and then serve foreclosure papers upon them.
Dinnerstein indicates that he will seek sanctions against the lender and ProVest, which is under investigation by the Florida Attorney General for allegations of false returns of service under oath and forged signatures of process servers.
In a number of unrelated foreclosure defense matters, some process servers allegedly violated rules related to the personal delivery of legal papers. Like robo-signing foreclosure documents without reviewing them for accuracy, a number of homeowners are now alleging they were never served with foreclosure papers.Once rare, “bad service” of process has become more common as lenders and their attorneys speed thousands of foreclosure cases through “rocket dockets” that are designed to clear an ever growing backlog.
“With the foreclosure debacle, it’s become more complicated,” says Carlos J. Reyes, a foreclosure defense attorney with the Reyes Law Group in Fort Lauderdale. “For the sake of expediency, process servers are being rushed. As they are paid by the piece, they have an interest in earning a higher income.”
Homeowners involved in foreclosures are required to receive a summons and complaint personally delivered by a process server. Repeated attempts at personal service are required before court permission can be obtained to publish a legal notice in the alternative.
In the case of a deceased homeowner, foreclosure papers are served upon an administrator. Some process servers have allegedly cut corners. One recently claimed she could not find a homeowner facing foreclosure on a second home, despite conducting extensive record checks. This held true even though the foreclosure complaint clearly provided a primary home address in Connecticut.
Lenders and attorneys typically contract their summons delivery work to large process serving firms, who sub-contract to private independent servers. In her deposition to state investigators, former Stern paralegal Tammie Lou Kapusta, testified that summons serving procedures were a “complete mess,” with homeowners routinely complaining they never received papers.
She and another former employee, Kelly Scott, said their managers told them move forward with the foreclosures anyway.
Investigators also questioned staff at Stern’s firm regarding billing practices that involved serving multiple parties at an address and billing for each one.
“Good service of process is crucial”, Reyes said. He has heard of homeowners losing their home because they never received a summons and missed filing dates or court hearings.
While a court summons must be accepted by an adult, state law does not require it to be served upon the property owner. No one has to sign, verifying receipt, “which makes it easier to say the person was served, when they weren’t,” Reyes said.
Laws governing the service of process vary from state to state. In Florida, there is no statewide licensing or regulating body for process servers, and rules vary greatly among the 20 judicial circuits.
While ProVest declined to comment on specific cases, company president James Ward stated they “utilize properly licensed or authorized independent contractors” and require them to “fully comply with state and local guidelines.”
“ProVest is confident the vast majority of notifications are being conducted appropriately and where there are anomalies of inadequate service we strive to learn from those situations,” Ward said.