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Incorrect Name Derails Foreclosure Suit

  • Incorrect Name Derails Foreclosure Suit

    Incorrect Name Derails Foreclosure Suit

    A lender serving foreclosure papers ran into a problem when the defendant argued that no litigation had started because the papers had the name “Fracis.”
    Lender MTGLQ attempted to serve court documents on foreclosure of a two-bedroom condominium against an individual named Nazareth Solomon, but instead filed papers against an individual named Lazareth Fracis. MTGLQ was suing Solomon for defaulting on the mortagage of the condominium in Bay Harbor. However, Nazareth was a relative of the borrowers of the property, Steven and Giselle Francis, likely leading to the issue of incorrect identity.
    The original summons tipped off the Francises, alerting both them and an “unknown person in possession” of the suit by Fannie Mae back in 2011. After years of litigation, the case had still not been resolved because not all of the defendants had responded, been dismissed, or ruled against with a default judgment. When the plaintiffs tried to get a default statement against the original individual “Fracis,” the defense attorney decided to take a closer look at the original process of service documents. By then, the Francises had responded to 18 affirmative defenses, However, Solomon moved to invalidate the court summons on the grounds that you must be notified of when you are being sued in order to satisfy Florida’s Rules of Civil Procedure. The defense raised a challenge before the Third District Court of Appeals.
    In response, the plaintiffs filed a confession of error, leading the Third District Court to reverse a lower court ruling and remand the case. However, the Court did allow the option of an alias summons to follow, letting MTGLQ file a summons in the correct name and allowing the proper defendant a window to respond.