Foreclosure & Service of Process continued–Gated Communities, Service on Others.
I’ve recently written about the correct (versus the incorrect!) means for a lender to serve foreclosure court papers on homeowners/borrowers. (Actually this applies to any kind of civil law suit). I get a lot of questions about gated communities. Florida Statute 48.031, subsection (7) says: “A gated residential community, including a condominium association or a cooperative, shall grant unannounced entry into the community, including its common areas and common elements, to a person who is attempting to serve process on a defendant or witness who resides within or is known to be within the community.”
Therefore, I don’t believe that leaving court papers with a gate keeper or security guard is proper service of process. Where that happens, the service (ie the right of the bank and the court to proceed with the foreclosure case) is subject to attack.
Another frequent question concerns what attorneys call “substituted service.” This occurs when the person to be served isn’t home and the process server leaves the foreclosure papers with another person at the home, usually whoever opens the door. Is this good service? Sometimes, sometimes not.
On March 23, 2012, the Second District Court of Appeal for Florida emphasized yet again that the laws concerning service of process must be strictly construed. Failure to do so results in service being ‘quashed’ or thrown out. Baker v Stearns Bank NA.rtf In Baker, the court said service on a house guest IS NOT GOOD SERVICE.
FS 48.031 (1)(a) provides: “Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section.”
Caution…There’s a lot more to this Florida statute, so you must discuss the details with a Florida attorney.
Naples, Fort Myers, Punta Gorda are all in Florida’s Second District, so any case out of the Second District Court is of particular importance to us.