Foreclosure Defense: Process Servers Allegedly Filing False Affidavits
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, J.P. Morgan Chase, and PNC Bank, the settlement of deceptive marketing charges by Wells Fargo, and the Attorney General’s investigation into faulty foreclosure practices at the Florida Default Law Group, the Law Offices of David J. Stern, P.A.; the Law Offices of Marshall C. Watson, P.A.; and Shapiro & Fishman, LLP, investigators have turned up a new problem.
Process servers are now alleged to have filed false affidavits in support of personal service in foreclosure matters.
Foreclosure defense attorneys claim to have documented a number Process server of cases where process servers filed false affidavits. While investigating the law firms that employed “robo-signers,” state investigators are also closely examining service of process in a number of cases.
Recent foreclosure defense cases allege homeowners never received a court summons even though they still occupied their home, while 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.
According to the lawsuits, some process servers 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.
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.
Among the largest with operations in ten states is Tampa-based ProVest. Although ownership interest by the law firms 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 they “utilize properly licensed or authorized independent contractors” and require them to “fully comply with state and local guidelines.”