March 10, 2015
A “default” judgment of foreclosure was vacated today by a Seminole County, Florida Circuit Judge based on lack of proof that the homeowner, who resides in the United Kingdom, was served with the Summons and Complaint. Jeff Barnes, Esq. represents the homeowner, filed the Motion to Vacate the judgment with supporting affidavits, and argued the motion in court this afternoon.
The foreclosing party claimed that it had complied with the requirements for service of court papers on a British subject in England pursuant to the Hague Convention. However, the Judge, in analyzing the law presented to her by the attorney for the foreclosing party, found that service was not proper as the papers were not placed in the homeowners’ drop mailbox but instead into the mailbox of an investment property owned by the homeowner which she had not lived in for years before the Complaint was filed.
The Judge found that the burden to show proper service shifted back to the foreclosing party after the filing of the affidavits of the homeowner and the tenant of the location where the papers were left, which affidavits consistently stated that the homeowner did not live at the property where the papers were dropped off. The Judge found that there was no diligent search for the proper address of the homeowner after the foreclosing party was put on notice by the affidavits (which were filed November 14, 2014) which showed that the homeowner did not live at the address were service was allegedly made.
The foreclosing party had instituted an action on a deficiency judgment in the UK based on the judgment which the Court vacated today, rendering the deficiency action moot. The underlying foreclosure will now be properly litigated with defenses and discovery.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com