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Emergency Motion to Cancel Sale, Vacate Final Judgment and Set Asise Default

Emergency Motion to Cancel Sale, Vacate Final Judgment and Set Asise Default

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Published by winstons2311

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Published by: winstons2311 on Aug 28, 2010
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05/29/2013

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________________________________
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA SUNTRUST BANK, CASE NO.
2009-CA-013333-0
PLAINTIFF,
v. 
SCOTT SCOVIL AND LIA SCOVIL, 
ETAL.
DEFENDANTS.
~I
DEFENDANT'S EMERGENCY MOTION
TO
CANCEL SALE SCHEDULED FOR AUGUST 4, VACATE FINAL JUDGMENT, AND SET ASIDE DEFAULT 
COME NOW, the Defendants, SCOTT SCOVIL AND LIA B SCOVIL by and throughthe undersigned counsel and hereby files this Emergency Motion to Cancel Sale Scheduled forWednesday, August 4, 2010, Vacate Final Judgment, and Set Aside Default and states asfollows:
FACTS
1. 
This is an action to foreclosure upon real property. The Complaint was filed by thePlaintiff on or around April 29, 2009.
2. 
On or around May
1,
2009, Plaintifflssued a 20 Day Summons to Defendants Scottand Lia Scovil
3. 
A mere 6 (six) days later on or around May 7, 2009 the Summons were returnedunserved as to the Defendants.
4. 
On or around May 15,2009, Plaintiff filed an Affidavit
of
Constructive Servicestating in relevant part that a diligent search and inquiry has been made to discoverthe name and residence
of
SCOTT and LIA
B.
SCOVIL.
  e   F   i   l  e   d   i  n   t   h  e   O   f   f   i  c  e  o   f   C   l  e  r   k  o   f   C  o  u  r   t ,   O  r  a  n  g  e   C  o  u  n   t  y   F   l  o  r   i   d  a   2   0   1   0   J  u   l   3   0   0   5  :   0   9   P   M    L  y   d   i  a   G  a  r   d  n  e  r
 
8.
Moreover, during the pendency
of
this lawsuit, Defendants were renting the propertyto a tenant who was in regular communication with them. Defendants could haveeasily been located
by
Plaintiff
by
contacting the renters
of
the property, but
no
request
of
the tenants was ever made by any agent acting on behalf
of
Plaintiff.
9. 
First Attorney engaged and regular and frequent communication with the Plaintiff orits agents which communications Defendants reasonably believed represented aresolution
of
the issues contained within the instant lawsuit.
10. 
Defendants honestly believed that: (1) First Attorney was acting on their behalf in theinstant action; and (2) First Attorney represented to them at a successful resolution
of
this case was on the horizon.
11. 
But for First Attorney's fraudulent misrepresentations, the Defendants would haveadequately responded
to
the instant lawsuit. Therefore, the Defendants' completeinaction with respect
to
this lawsuit was one
of
reasonable misunderstanding on thepart
of
an uninformed consumer who was relying on the representations
of
a member
of
the legal community which should render summary judgment at this stage proper.
12. 
Upon realizing that they were going to lose their home, Defendants retained theundersigned attorney Matthew Weidner and provided the above-referenceddocumentation and the attorney filed these pleadings with this Court within ten days
of
being hired by the Defendant.
13. 
The Defendant was totally unaware that the foreclosure case was proceeding againstthem, believing instead that his First Attorney was working with the lender for amortgage modification and that this resolved the issues contained within the lawsuit.The Defendant reasonably believed that work done by First Attorney fulfilled his
 
obligations to respond to the lawsuit.
See
the Defendant's Affidavit labeled Exhibit
"A."
14. 
On August 31, 2009 the Clerk
of
entered a Default Judgment for the Plaintiff. TheCourt set a Sale Date
of
the property at issue
in
the instant action for August
4,
2010.
15. 
Your undersigned counsel has directed the defendant to file complaints with theFlorida Bar and with the Florida Attorney General's Office to investigate the exactnature
of
the services rendered
by
First Attorney. Your undersigned respectfullyrequests that default and summary judgment be set aside until such time as factsrelated
to
this out
of
state lawyer's representation are fully developed.
I.
SETTING ASSIDE DEFAULT AND SUMMARY JUDGMENT FORIMPROPER SERVICE OF PROCESS
16. 
Statutes governing service
of
proves are to
be
strictly construed to assure thatdefendants are notified
of
the proceedings and have the opportunity to protect theirrights. Shurman
v.
Alt. Mortgage
&
Inv. Corp.,
795
So. 2d 952 (Fla. 2001);Shepheard
v.
Deutsche Bank Trust Co. Ams., 922 So.2d 340 (Fla. 5
th
DCA 2006); seealso Redfield Inv. A.V.V.
v.
ViII.
Of
Pinecret, 990 So.2d
1135
(Fla. 3d DCA 2008)(holding that because lack
of
personal service implicates due process concerns, theplaintiff must strictly comply with the statutory requirements); Floyd
v.
Fed. Nat'lMortgage Ass'n, 704 So.2d 1110 (Fla. 5
th
DCA 1998) (holding that constructiveservice statutes require strict compliance). Additionally, "[t]he failure to strictlyadhere to the statutes' required deprives the court
of
jurisdiction over the defendantimproperly serviced." Shepheard, at 343.
17. 
Although service
of
process
by
publication
in
a foreclosure action is permitted(Florida Statutes 49.011), a mortgage holder may only resort to service
of
process by

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