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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 118253
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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My name is ***** ***** and my issue is in regards ***** ***** Florida

Customer Question

My name is ***** ***** and my issue is in regards ***** ***** Florida foreclosure
JA: Thanks. Can you give me any more details about your issue?
Customer: I have been out of state taking care of my disabled brother (there's nobody else do this). A foreclosure was filed on my property in Florida in November. They tried to serve me at my home in Florida and my aunts in Massachusetts but I've been taking care of my brother in New Hampshire. I contacted the constable in Massachusetts to obtain the documents who advised they needed to set up service in New Hampshire. After numerous attempts to get the documents I filed an incorrect answer because I did not have access to the documents. My "answer" was a notice of appearance and designation of email address which the courts accepted as an answer. I contacted the plaintiffs counsel who affirmed the case was not ready for a final summary judgment. He then attended the hearing anyways and obtained a final summary judgment against me. I filed a motion for reconsideration, and motion to vacate the final summary judgment. The court has not ruled. The plaintiffs counsel then filed a affidavit of publication of foreclosure sale which had the wrong property address (the legal description was correct but address was not even close). So I filed a motion to strike the publishers affidavit (which also stated it had been published for a full year. How can they have published the notice of sale for a year when date was set in March 2016). Now they're claiming a scriveners error. I don't believe this is fair because it is a foreclosure and the address isn't even close. Also, there is no assignment on record from the lending tree back to citimortgage before citimortgage assigned to wilmington savings bank
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Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
What is your specific question for us about this situation?
Customer: replied 1 year ago.
What is my best course of defense in this case? Should I amend my motion to vacate to include an affidavit of excusable neglect citing my being out of state combined with opposing counsel agreeing the case wasn't ready for final summary judgment and opposing counsel agreed to send me all the documents (although the phone call was recorded I do have record of re-requesting the documents through the attorneys assistant), should I file an objection to opposing counsels request to amend the final summary judgment (entire property address was incorrect so I think this would be more than a simple scriveners error) OR should I file something completely different and if so what?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
Based on what you said, the best recourse is filing a motion to vacate any judgment and dismiss for failure of service of process and improper service of process, which would force them to start all over again. In the same motion you can also pose your alternative argument that even if the court does not dismiss because of the defective service, you should be entitled to answer the case and that there are too many material facts in dispute regarding the case itself to make summary judgment proper in this case.
Quite honestly, and I know money can be tight, I would not suggest doing this without using a local attorney, because having a local attorney involved representing you significantly increases your chances of success.