Florida Appeals Court: Presenting Meritorious Defense In Foreclosure Action Unnecessary Where Notice Of Lawsuit Not Properly Served On Homeowner

A recent ruling by a Florida appeals court hopefully serves as a reminder to the rubber-stamping trial judges intent on pushing as many foreclosure judgments through the rocket dockets as quickly as possible to slow down when defects in the process by which notice of the lawsuit was purportedly served on the homeowner are apparent on the face of the affidavit of service filed in court by the process server. Apparently, trial judge Ronald M. Friedman of the Miami-Dade County Circuit Court believed that it is legally acceptable to rubber-stamp a judgment in a foreclosure action when notice thereof was not properly served on the homeowner if the homeowner has not presented a meritorious defense to the lawsuit.(1)

According to the appeals court:

• Where no in personam jurisdiction is obtained over a defendant, the defendant is not required to demonstrate a meritorious defense to set aside the default. Ubilla v. L&W Supply, 637 So. 2d 994 (Fla. 3d DCA 1994); Gamboa v. Jones, 455 So. 2d 613 (Fla. 3d DCA 1984). The trial court should not have required Ms. Bennett to demonstrate a meritorious defense to the action once it became clear that the summons and complaint were never properly served.(2)

For the ruling, see Bennett v. Christiana Bank & Trust Co., No. 3D09-2653 (Fla. App. 3d DCA, December 1, 2010).

(1) Judge Friedman entered an order actually finding that the service of process was “questionable,” but because there was no meritorious defense to the foreclosure, he denied the motion to vacate the foreclosure judgment.

(2) To the uninitiated, this would appear to be a pretty basic and fundamental precept of law. Apparently not, at least not for Judge Friedman. Either that or maybe he wasn't expecting that the financially strapped homeowner would be able to afford the cost (ie. attorney fees) of filing an appeal of his ruling. As trial judges ponder this ruling, they may also want to consider whether presenting a meritorious defense to a foreclosure action by a homeowner is necessary where the party initiating the action has failed to prove that it has standing to bring the lawsuit in the first place.

By the way, where a foreclosure sale has already taken place with the property being purchased by an unwitting third party, the situation illustrated by this case could result in the foreclosure sale being voided and, consequently, the title to the property held by the third party purchaser (and any other property interest holders - ie. downstream buyers, mortgage holders, etc. - claiming under the 3rd party buyer) being voided as well.