Improper Service

Improper Service

Have you received a Notice of Default from your mortgage servicer? Has a foreclosure been file against you, but you do not remember being served or receiving any paperwork from the court?  First, do not panic as there is a good possibility the Plaintiff who filed the foreclosure may have failed to properly serve you. In order to be properly served, the Plaintiff must serve a copy of the summons, along with a copy of the complaint, petition, or any other of the initial foreclosure paperwork by leaving the copies with any person residing at the property, or to their last known mailing address. In many states, the paperwork cannot be left with any person(s) under the age of 15, and they must inform the person of its contents.

If you were not personally served, the process server may have given the paperwork to someone at your home that wasn’t the person intended to be served. At this point, you should do some investigating. You can go onto your county’s clerk of court website in the “Civil” division and look up the case. Look at the document entitled “Return of Service”. This is an affidavit of the process server filed by the Plaintiff. The Return of Service will tell you what day and time you were actually served. It will also tell you which person the paperwork was given to. You may see more than one Return of Service depending on how many people are named as defendants. However, if someone other than a resident of your home was served, then you need to act quickly as there is a chance it can be overturned due to “Improper Service”. These motions are technical, and you will need an attorney who knows the law and can effectively argue the validity of your case. The attorney will also be able to advise you on any other potential defenses you may have to fight the foreclosure and help you keep your home.