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Get Them On Procedure
A friend of mine has a property in foreclosure, but
never recieved a Summons for a Complaint To Foreclose.
As a favor, I checked at the recorder's office to see if
there were anything on record. Sure enough, a Complaint
to Foreclose had been issued. In reading the Service of
Process, the company hired said they could not locate
the owner at the address, (she does not live there), so
the server left no notice.
Great! I thought. Improper service, so the Complaint is
invalid. I then went to check her file case at city hall.
The attorney did Notice my friend by Publication. So she
was in default, and could not contest the Complaint.
Huge disadvantage against her.
To the law library I went, looking up procedures for
Notice by Publication. The attorney followed all the rules,
except one. When Notice is made by Publication in a
newspaper, the Clerk of Court has to send a copy of the
Notice to the defendant at defendant's last known
address. No such Notice from the Clerk had been mailed.
"Why not?" I asked the Clerk.
"Not our responsibility!" the Clerk replied. "Check with
the Law Bulletin"
"Why didn't you send a copy of the Notice you published
to the defendant, as required by statute?" I asked the
Law Bulletin.
"Hmmmmm. Looks like the attorney did not provide us
with an address." she responded.
"Thank you! Thank you!"
The law books show how to write a Motion To Quash
when improper Summons has occurred. One short paragraph,
but it makes the Complaint invalid.
Last Friday, my friend received a Motion for Summary
Judgement, addressed to HER at the property address.
The attorney set a court date for Wednesday, 2 August.
On Tuesday, the day before court, I had the attorney
served with a Motion To Quash, to be presented in court
next day.
Went to court yesterday, with my friend. I told her to
go up to the judge, say her name and spell it, capital J,
small o,a,n,n,a, last name same way. After spelling her
name, she proceeded with:
"Your honor, I have presented my Motion to Quash. I
stand on my motion, and I have nothing further to say."
[I prepared her to say that, and told her no matter what
the judge says or asks, SAY NOTHING MORE!]
Judge: "Are you representing yourself?"
Me (sitting in the courtroom), to myself, ["Please, please,
don't answer that question!"]
Joanna: [Silence]
Judge: Are you representing yourself? [Followed by more
silence] Okay!
Judge: I am giving defendant 28 days to file an appearance
and a response.
Opposing Attorney: "But your Honor, we only received this
Motion To Quash yesterday. It was not presented as an
Emergency Motion."
[If a Motion does not allow for at least three day's notice,
it should be labled an "Emergeny" motion.]
Judge: "Well, you have it right now, don't you!
Joanna: "Thank you, your Honor."
---
Afer the fact, I explained to Joanna that the question by
the judge was a trick to get her into his jurisdiction.
In filing the Motion to Quash, as long as there are no other
arguements presented, the court does not have any
jurisdiction over the defendant. If something else is added
to the motion, like "the attorney failed to follow procedure,
and then cite a previous case that perfectly supports
your position, you have just entered the court's jurisdiction.
Read all the rules, follow the procedures, do your homework,
and maybe you can catch the opposition sleeping over a
little detail.
Now she can respond to the Complaint and not be in
jeopardy of losing her house. That is the short version
of her situation, without getting into details/reasons why
she was in FC.
The point behind posting this in Success Stories is to let
everyone know that you have to check every little detail
to see if all procedures have been followed, to see if every
requirement of a Statute is being met.
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