Requirement To Be Personally Served Lis Pendens In Florida
Does the defendant in a lis pendens have to be personally served the lis pendens recorded against him? I understand that if he is unable to be located then a newspaper notification must be done. But what if a lis pendens is filed but the defendant only receives his notification by way of US mail? Is it not true that he has the right or more accurately the requirement to be personally served at his house, or business, or whereever and sign that he has received the notice?
After being served then he must respond to the court within 20 days to contest the claim or require more evidence or request a copy of the note, etc. The crux of my question is if there is not record of him actually signing for a process server or any newspaper notices and if there is further action in court being taken against him (summary judgement, etc) does the defendant have the right to demand that he be personally served as a matter of due process and thereby void all previous action taken against him so the plaintiff must begin the process again.
Thanks,
Robert
Thanks Bargain King,
1) The defendant probably would not want to wait until his house has been auctioned to file his claim of "improper service". Kind of late in the process and a bit risky. Can this be done earlier?
2) If the defendant refused service (or in truth never was approached for service) then I would think that the court docket would have to show that newspaper filings were made as official public notice. if this was not done then I believe the defendant would again have the right to request personal service?
3) If the defendant receives and "amended complaint" in the mail and responds to one of the allegations in this "amended complaint" can he still use the "improper service" defense. By responding to an allegation in the "amended complaint" he has shown knowledge of a suit having been filed however he was never served and the court records show he was never personally served.
What is comes do is there a legal requirement that he be personally served the lis pendens for the case to progress validly in court?
Thanks kindly,
Robert
Thank you commercial king,
No real need to be mean spirited here. This is the legal forum and in my opinion no sincere question should be demeaned. FYi I have successfully completed a couple of dozen short sales over the years but there is always more to understand. I would guess with your years involved in these matters and your name on the marque of this page you know that there are varieties of strategies that can and should be used in the courts. Perhaps you are a lawyer, it does not really matter because much of this business can be done without an esquire in the game.
I was attempting to draw on the experience of others who may have knowledge here. If that is not available then so be it. There are other ways to find out the answers to my question so I have more complete knowledge of the best approach to take here. Being dismissed and sent to the sidelines was not what I was hoping for.
Kindly yours,
Robert
Great... thank you Bargain King,
The court record does not show a return of summons or any affidavit of service.
There has been no service of the original complaint but there has been an "amended complaint" received by mail. Based on the amended complaint a response has been sent demanding written verification of reinstatement and payoff figures per the FDCPA but nothing back yet.
In fact I have talked with the Clerk of Court twice on the matter of personal service. The first time I was advised that all that was needed was receipt by mail of the "Amended Complaint"; the second time I was advised that personal service should be effected and probably was delayed because of a back up in the system (6 weeks ago).
I am not trying to split hairs so much as to determine what requests will likely be acceptable to the court. There is procedure and I do appreciate your comment about the discretion of the judge in determining what is proper service. Since there is a right to answer allegations in a complaint it may be best to write the judge and point out that there has not been any personal service of the original complaint so affirmative responses cannot really be made, and request that the original complaint actually be served.
I posted here thinking that maybe someone had encountered this failure to be served situation and had insight. Thank you for what you have to offer.
Best,
Robert
My experience with service is related to Eviction cases mostly. In my jurisdiction, personal service is required only if monetary damages are sought. These rules are set not by the judge, but by the appropriate statutes governing the case at hand. Judge can not change the rules, the judge can only enforce them.
On a side note, I do understand Roberts comments. A number of well intentioned and experienced people answer a majority of the questions asked here with "Get a Lawyer". The main point of posting on websites such as these is to share experiences and receive others input. In my opinion, "Get a Lawyer" is simply stating the obvious and not helping the OP in getting an answer to their question.
Good luck.
JS.
Because you are asking the question, we all assume that you are not an attorney, and are not licensed to practice law in the state of FL.
May be a minor point, but noone asked who owns the property in question. Are you personally named on the title, or is your business entity the owner?
If the answer is your business entity, then the only meaningful response to your question is to get a lawyer. Representing your business in court proceedings is practicing law without a license. Even if you know what to do, you still need a licensed attorney to do it for your business..[ Edited by NewKidInTown3 on Date 10/02/2009 ]
Who manages all the LLCs? If your child LLC holds rental property and you personally manage the property, then you can be held personally liable for your actions in your role as property manager. This exposes yourself to personal liability exposure, regardless of the number of entities layered above the child LLC.
This is a question to be addressed by your attorney who will be most familiar with the case law in your state.
The lenders know that things in life sometimes make us change our plans. You may not always occupy this property as your primary residence. You may move and convert the property to a rental.
Should this happen, and you later default on your mortgage, the rider says that the lender has a right to an assignment of rents. This is pretty standard in mortgage loan packages today.
If you never use the property as a rental, then the rider does not apply.
Thank you I did not know that.
So just to make sure if this property never becomes a rental than the rider does not take affect. Do you know if that includes everything listed on the rider such as Paragraph A. Additional Property Subject to the Security Instrument?
Thank you
CA has a non-recourse rule for purchase money mortgages. Talk with a CA real estate attorney to see what the ramifications of forecosure or short sale would be in your circumstances.
Chances are you have nothing to worry about.
Transferring an asset out of your name just to hide it from your creditors is a fraudulent transfer. Speak with a local attorney about fraudulent transfers and how the provisions of the Uniform Fraudulent Transfer Act might apply to the actions you propose.