Sewer Service | FL 5th DCA Default Judgment Reversed, ABNER SILVA v. BAC HOME LOANS SERVICING, L.P., ETC.

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT JANUARY TERM 2011

ABNER SILVA,
Appellant,
v.
BAC HOME LOANS SERVICING, L.P., ETC.,
Appellee.

________________________________/

Opinion filed May 6, 2011

Non Final Appeal from the Circuit Court for Orange County,
Emerson Thompson, Jr., Senior Judge.

Matthew D. Valdes, Kaufman, Englett &
Lynd, PLLC, Orlando, for Appellant.

No Appearance for Appellee.

PER CURIAM.

Abner Silva, the defendant below, seeks review of an order denying his motion to set aside a default final judgment entered against him. We reverse.

In this foreclosure case, substituted service of process was secured on Silva under section 48.031, Florida Statutes (2010), by serving a “Luz Rodriguez”, who purportedly lived at the mortgaged property. However, the affidavits and other information submitted in support of Silva’s motion below established that the mortgaged property had been vacant for some time prior to the purported service, that he did not know anyone by the name of Luz Rodriguez, and that his usual place of abode was, and had been for eighteen months prior to the purported service, in Miami.

The party seeking to invoke the court’s jurisdiction has the burden to prove the validity of service of process. See Torres v. Arnco Constr., Inc., 867 So. 2d 583, 587 (Fla. 5th DCA 2004). This record does not reflect competent evidence that BAC Home Loans Servicing L.P., the plaintiff below, met that burden. The default judgment was, therefore, void and must be set aside. See Alvarez v. State Farm Mut. Auto. Ins. Co., 635 So. 2d 131 (Fla. 3d DCA 1994).

REVERSED.

MONACO, C.J., SAWAYA and ORFINGER, JJ., concur.

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And if you think this is a rare occurrence, you are greatly mistaken…

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4closureFraud.org

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Abner Silva v. Bac Home Loans Servicing, L.P., Etc.


Comments
5 Responses to “Sewer Service | FL 5th DCA Default Judgment Reversed, ABNER SILVA v. BAC HOME LOANS SERVICING, L.P., ETC.”
  1. Lit Gant says:

    I have always said the Appeals judges have brains. The Circuit judges are brainless for the most part. They think the majority of defendants will not appeal their orders. So they issue all kinds of robo orders. Wish there was a way to punish these circuit judges who do these trash robo orders. Said it alreay. These judges need to hand condoms to the attorneys coming in their court rooms.

  2. Meg says:

    According to this Provest Invalid Service – It is very important that if you have not been served properly, you do not file an answer or make an appearance with the court as you can waive your right to object to the improper service.

    If you are not properly served within 120 days of the filing of the complaint, your case can be dismissed.

    Gotta love this story – http://www.floridaforeclosuredefenselawyersblog.com/2010/10/more-invalid-service-of-process-by-provest-in-clay-county-foreclosure-cases.html

    • JamesM says:

      Meg is right. If you go file something in the court, you have made a general appearance, and in almost all cases have waved objections to service.

      There are ‘special appearances’ but these are best handled by a lawyer. Moreover I think paying a lawyer to do a ‘special appearance’ to quash sewer service, prior to any ruling by the court, is mostly a waist of time and money, for the court will say, now you know about the action, file an answer.

      If you were never served, and the court has made findings or rulings, then attacking service makes sense, so as to put aside the orders entered by the court that you were not party too.

      In Florida (and many other states), If, after diligent attempts, Plaintiff is unable to prefect service on you in person, service can be done by of a legal notice in an advertisement. This takes longer but the court is able to obtain jurisdiction over you and move forward.

      So just because you have not been served, don’t assume you are in the clear. If you know a case was filed, and you have not been served, you must still keep a sharp eye on the docket sheet .

  3. debi J says:

    Finally some consequence for all they have done wrongly against the homeowners. So unfortunate that this has to be done in appeals. Why is it so hard for the judges in the lower courts to see the fraud that has been brought upon america over and over again? Why are they continuing to give the banks the peoples homes they have no standing to foreclose upon? Why so hard!?. seems to me you either have to have an IQ of about 6 or u r crooked. Both are very bad. Real estate 101 should be a basic understanding before you can be a F ing JUDGE! How can they not see what the banks are doing? Why are they blind or stupid—i thought you had to be brilliant to be a judge–not crooked, deaf,dumb and blind. How can we get these crooked or retarded judges out of the lower courts? Why are they allowed to rob the population and rape the people they are sworn to protect? Since when is the judges portfolio more important than the people? Can we get them out of office or do we have to continue to bring everything to appeals? Seems insane that this is allowed to continue. Our courts are ruined by not only contaminated records filed fraudulently, but by the very judges who are supposed to under stand the law instead of worrying about their own portfolios. Its sick, wrong and needs to stop before the corruption stems too deep to ever recover. Debi

    • marilyn lane says:

      My case Astoria Federal S & L /Successor in Interest to Fidelity NY FSB v. Mariilyn Lane started when
      Fidelity NY hid Four of my mortgage checks in order to fake a default ,accelerate,,foreclose and demand real money for the bank’s fake money ( always remember credit and money are not the same thing.)

      In 2008 I made two motions in New York Supreme Court to vacate two void judgments ab initio of June 30 1997 pursuant to US Supreme Court Case Elliot vs. Piersol. which states:

      Under Federal law which is applicable to all states the US Supreme Court stated that if a Court is “without Authority its judgments and orders are regarded as nullities. They are not voidable but simply void and form no bar to recovery sought even prior to reversal in opposition to them. They constiitute no justification

      Astoria Federal had gotten rid of the very corrupt attorneys Mullooly Jeffrey Rooney and Flynn seven years prior and Astoria’s new attorneys Mr Arthur Walsh of O’Reilly Marsh and Corselli looking at the dates knowing that Astoria sold my two properties without ever owning them stated in front of Jujdge Alice Schlesinger “Its Indemnify Indemnify Indemnify” – we are stepping aside and the title attorneys are stepping in.

      Who steps in but the corrupt attorney Thomas P Malone of Fidelity National Title and corrupt attorney David Fiveson of Coronet Title. They do not want to indemnify but want to be Intervenors instead and be heard and what they told the court is Time makes a Forged deed good, and that they had “equity” (Forged Deeds convey no title) . The only “equity” they were talking of was money under the table for Judge Alice Schlessinger and she ruled against the law of US Supreme Court case Elliot v. Piersol.

      I don’t know if Judge Alice Schlesinger is dumb but she sure is Corrupt.

      I wrote a simple letter to William P Foley CEO of Fidelity National Title and former chair of LPS DOCX “what went wrong that your New Yor attorney Thomas P Malone finds himself fighting for a forged deed?” Fidelity Titles answer to me was “…it is proper…”

      N ow that we all know about LPS Docx it is no wonder William P Foley thinks Forgeries are good.

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