Third District Court of Appeal
State of Florida, July Term, A.D. 2010
Opinion filed December 1, 2010.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D09-2653
Lower Tribunal No. 08-71936
________________
Debbie Bennett,
Appellant,
vs.
Christiana Bank & Trust Company, etc.,
Appellee.
A Pro-Vest employee, filed a verified return of service on December 29, 2008. The return indicated that individual service was accomplished on December 20 at 4:13 p.m. The return further indicated that “DEFENDANT REF– USED TO DISCLOSE MILITARY STATUS; PROPERTY IS NOT A MOBILE HOME. I asked the person spoken to if the person served is married and I received a negative reply.”
However, the front and reverse sides of the summons attached to the return were covered with the process server’s notes. These notes reflected the server’s attempts to serve Ms. Bennett at her house to no avail. The notes disclosed that on two occasions he left “cc” of the summons and complaint in the mailbox at the home. Finally, after several more attempts, on December 20, the process server wrote that he left the papers at the door. His notation for that date states: “12/20/08 – 4:13pm Saw Curtains Move, Read Aloud Docs, SVP Docs at Door.”
The return does not identify the name or age of any individual supposedly served or identified within the premises. The time, however, is precisely the time identified on the face of the return of service.
Ms. Bennett stated in her affidavit that she had undergone surgery the day after Thanksgiving and was convalescing at her mother’s home the next six weeks.
On September 2, Ms. Bennett, through counsel, filed a motion to vacate the judgment and to stay the foreclosure sale. The trial court denied the motion to stay the sale, but granted Ms. Bennett a hearing on the motion to vacate. Ms. Bennett filed an affidavit to support her motions asserting that the only notice she had of the foreclosure was the copy of the final foreclosure judgment received by mail at her home on August 20, 2009.
After the hearing, the court entered an order finding that the service was “questionable,” but that there was no meritorious defense to the foreclosure. The court denied the motion to vacate. This appeal followed.
And it can be read in its entirety below…
~
4closureFraud.org
~
FL 3rd DCA Debbie Bennett, Appellant, vs. Christiana Bank & Trust Company, etc., Appellee
There’s nothing new here.
I have a case in my file, where a defendant we were attempting to serve in Florida, was located in Pa. I found the Pro-Vest return of service in the court file from a mortgage foreclosure, and contacted the defendant who related to me that he was divorced, and that his ex-wife (our co-defendant), still lived in Florida.
What I found intersting was the “rest of the story.”
The defendant stated that “a guy” (process server) came to the house, with foreclosure papers for he and his wife.
He advised the server that they were divorced, and that she was living in Florida, and currently on Active Duty with the Air Force, stationed at MacDill AFB, Tampa, Fl.
He stated that the server continued to server both copies to him regardless.
The affidavit indicates that the parties (Defendant and Co-Defendant) are “MARRIED”, and that neither party is on Active Duty with the United States Military.
I suggested to the defendant that he contact an attorney, and have them move to quash service based on ineffective service. I didn’t follow up, so I have no idea how it all ended.
We contiunued on and served the Defendant/ex-husband in PA, and the Co-Defendant/ex-wife in Florida.
What the server did, was not only unprofessional and unethical, it was ILLEGAL.
The same applies to the Forida server.
They have both provided false information in the form of an affidavit/return of service to the courts, period!
Both servers should have their licenses revoked, and be criminally prosecuted for perjury!
Unfortunately, all of these cases are the direct result of greed on several levels.
The company is well known for underpaying and overworking process servers.
From multiple conversations I’ve had with those that do or did serve for Pro-Vest, the demands and time constraints placed upon the servers on residential; services, were unreasonable and did not lend themselves to a true diligent effort and professional service on behalf of the process server.
If/when the server could not meet the demands, the threat of discontinuing work would then be raised by the company.
The servers however, have only themselves to blame for this mess.
As long as servers are willing to whore themselves out at sub-standard rates, and be taken advantage of by the likes of Pro-Vest, and “mills” like them, this sort of problem will continue to exist.
Pro-Vest is mentioned here, but there are several “process service mills” still out here, some spin offs of Pro-Vest, others simply their own “mill”, doing the same thing that Pro-Vest did/does.
Low pay, unreasonably high expectations. It’s a formula that does not work for anyone other than the parent company (Pro-Vest, etc).
Over the years, when interviewing a potential server or contractor, I ask them if they do/did work for any of the companies known to me to operate in this fashion. If the answer it yes, I generally thank them for their time and discontinue the conversation, without offering them the work.
I simply don’t want people with that mindset, that money over people and professionalism matters, working for/with me!!
Many servers and smaller agencies, would set aside or backburner work from other, smaller clients, to ensure that the Pro-Vest work was handled first.
Due to the massive volumes generated, the vendor would become “addicted” and later, sometimes after losing smaller accounts because of it, couldn’t afford to lose the account. After all, losing the income generated by Pro-Vest, may mean the difference between remainign in business or closing the shop.
While contacted several times over the last several years by representatives from Pro-Vest, stating that they were “expanding” in our area (hell, they’re based here-LOL), I have always refused their offer. Having some idea what they were charging the clients (having read court files, etc), and what they wanted to pay, it wasn’t worth it.
There is simply not enough time in the day/week, to handle the volume, along with the “requirements” as set forth by the company.
At some point, something obviously has to give. It is usually the quality of the service that suffers.