Appeals Court Gets Tired of Foreclosure Service Challenges

Samantha Joseph, Daily Business ReviewOctober 7, 2015


The Fourth District Court of Appeal is tired of repeatedly addressing the same issues from homeowners looking to prove they weren’t properly served court documents in foreclosure cases.

A Fourth DCA panel Wednesday upheld Palm Beach Circuit Senior Judge Eli Breger’s finding that certified process server Timothy Toomey followed state law when he served a foreclosure lawsuit on homeowners Irma and David Davidian.

But the court took an extra step in its critique.

“We … write to address the issues raised here because this court has received numerous other appeals raising the same or similar issues recently,” Judges Robert Gross, Spencer Levine and Alan Forst wrote in the unsigned opinion.

The Davidians want to quash the summons and return-of-service documents Toomey filed with the court to confirm he properly delivered the papers and informed the homeowners of the litigation filed against them by JPMorgan Chase Bank N.A., which inherited the account from Washington Mutual.

The couple raised five challenges to service, insisting Toomey never served Irma Davidian even though he said otherwise, there was no evidence to show the return-of-service documents were properly executed and complied with Florida law, and the documents were inadmissible hearsay.

“Case law is very clear what the purpose of process service is: to make sure that the people who are being served understand that this is a lawsuit filed against them and they have to do something quickly to defend themselves,” the Davidians’ former attorney, Margery Golant, said after Wednesday’s ruling.

The Florida Rules of Civil Procedure allow private companies and deputies to provide service of process. Under the rules, process servers must provide a return-of-service form with several details, including when the process server received the court documents, the date and time the papers were served, the manner of service and the name of the person served.

“Private process service companies get paid by the piece and have incentive to deliver as many as possible, unlike the sheriff’s office,” Golant said. “We’ve seen many cases when they didn’t do it right but claimed they did.”

Golant & Golant in Boca Raton represented the homeowners until April when Golant said the firm withdrew after losing contact with the clients. Her firm got an extension to allow the Davidians to retain other counsel or reply to JPMorgan’s response to the initial appellate brief, but no other attorney appeared in the case.

“The issue really wasn’t fully briefed,” Golant said. “All the court had to go on was the argument presented in the initial brief. It may have been different and the court may have felt differently about it if there had been an answer brief.”

Either way, the appellate panel suggested the Davidians’ arguments were far from unique and had been resolved by at least seven previous rulings.

It rejected the couple’s argument that the documents were hearsay.

William Grimsley of McGlinchey Stafford in Jacksonville, who represented JPMorgan, had no comment after the decision. In court documents, Grimsley contended the documents qualified under the hearsay exception for records of regularly conducted business activity.

The appellate panel also found the documents complied fully with state law.

It also rejected claims in Irma Davidian’s affidavit and testimony that she was not home when Toomey served the papers because the process server “described the Davidians by race, height, weight and hair color.”

“That’s not the issue. The issue isn’t whether he saw the people. The issue is what he did when he delivered the papers,” Golant said. “What we often see on these forms is the process service companies have access to background information software. It’s easy for them to run that software, which has access to driver’s license information and get a description. It doesn’t mean you actually saw the person.”


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