Legal advice appreciated regarding the following scenario:
In March, My ex -husband who resides at my former residence in GA with our teenage son informed me (vis-a-vie the yard man) that a deputy had stopped by house regarding a lawsuit. The yard man informed the deputy that I no longer lived there.
I subsequently found out from the clerk at Fulton County Court that the law firm of MPH had filed a lawsuit on behalf of Wells Fargo. I mailed a certified letter to the law firm as well as Wells Fargo informing them of address in TN where I have been lived for over a year.
I waited … fully expecting … to be served notice of the lawsuit in TN. But 6 weeks went by without any further action/notice. Per the court clerk, the original notice of service was returned to the State Court and marked as un-deliverable on May 30th with a notation the defendant resides in TN.
Upon finding out about the returned notice of service, I (once again) contacted the law firm representing Wells Fargo regarding my address. I received a letter from the law firm representing WF in TN asking to provide documentation of copy of my address.
Hence, I provided them with a copy of my TN driver’s license and TN vehicle registration. The law firm also contacted my employer to verify in attempt to further verify my address. Though in my opinion, this was a violation of my privacy given the law firm had not rendered proper service nor secured any judgment against me, I gave my employer permission confirm the address they had on file for me which of course is the same address I provided previously in TN.
After another 6 weeks pasted, the same deputy who had previously visited my former residence returned this past Wednesday. (The same process server name appears on the notice of service).
On his 2nd attempt, the deputy encountered by teenage son. Upon asking if I was home, my son explained that his parents were divorced and he lives there with his Dad. I, his mother, lives in TN. The deputy requested “he sign a document and give it to his mom.” Though my son expressed concern about signing the document because of his age (16) and because I did not actually live there; the deputy assured him “it was perfectly okay for him to sign the document”… so he did.
Three days letter, I received a letter in TN from the MPH urging me to contact their office to negotiate a settlement of the debt rather than go to court.
1) GA code 40-12-2 clearly provides for serving an out of state residence. So I must be missing the freaking obvious!?! Why in the world did the a law firm NOT serve me at my address in TN when they obviously had the correct/current address for SEVERAL WEEKS?
2) I consulted a real estate attorney post-foreclosure during the confirmation of foreclosure hearing. He informed I had a fairly substantial predatory lending case but that the statue of limitations had expired for filing a case. Because I did default on a promissory note, I doubt there is a legal basis for defending against a deficiency lawsuit in court (though the default was forced by WF in their quest to cover up billions in illegal loans, they hastily foreclosed upon nearly every loan that ballooned (94%) during the economic disaster THEY helped to create. Even loans that people like myself were able to willing and pay, had income galore, stellar credit history, etc.
But given the foreclosure has been confirmed and the statues for any sort of predatory lending or TIL claims on the banks side, it seems futile to attempt to defend against a deficiency judgment. However, I am not an attorney and would like to know if such an assumption about going to court is valid ?
3) Lastly, the best and maybe only recourse at this point is to negotiate a settlement with WF. However I am contemplating whether I should secure an attorney in TN (for my own convenience) or GA to handle the negotiation. Given the lawsuit was filed in GA, does it matter?
I would really appreciate thoughtful, constructive legal advice ... beyond the obvious pearls of wisdom such as "you should consult an attorney". Trust ,me... the obvious has already covered to me! :)
Thanks in advance for taking the time to respond to my post!
Answered on: 7/30/13, 7:20 am by Robert Gardner
I am seeing these more and more lately. I recently had a client served via her 10 year old daughter. Deputies should not be doing this, and service is improper. However, fixing this after the fact is much more difficult than being proactive. You need to hire an attorney in Georgia to file a written response to this lawsuit, bringing up the affirmative defenses of lack of service, improper service, lack of jurisdiction, improper venue, and statute of limitations, in addition to any other defenses related to the confirmation of sale and procedures related to it. What may be happening is that the law firm realizes that, as a Tennessee resident, there may be a statute of limitations applicable to you that renders them unable to file there. It may also be as simple as that they are not licensed in Tennessee and don't want to have to use another firm and sue you there. You have 30 days from the date your son was served to file a response, so take advantage of that asap. You may even be eligible for reimbursement of your attorneys fees and a judgement in the Georgia case which precludes their re-filing elsewhere.
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