I have a foreclosure case in florida, I am the defendent. The case was filed on 09/15/2010.Plaintiff did not serve the compaint for almost a year. on 09/15/2011 Plaintiff requested new summons. I was served an amended compaint by mail on 10/06/2011 and then served the original Compaint on 10/18/2011 by a servicer. Iam so confused which one shall I answer? and is the amended compaint, that was served by mail before I even Knew That someone is suing me since I did not get served original compaint but a week later, considered legal and ligitimate?
the amended compaint was for verification of foreclosure, the original complaint has a floating verification not in the complaint itself .
Which complaint i should answer original or amended or both ?
Thank you for your help
If the only difference between the two pleadings is the verification, then make sure you respond to the Amended Complaint. I suspect though that the Amended Complaint has changes, since service by mail is not proper unless the Plaintiff files an Affidavit of Diligent Search and has a Notice of Action published in the legal ads in a local newspaper.
I urge you to RUN, do not walk, to an attorney's office. If your finances are such that you would qualify, the Jacksonville Legal Aid Society has some nationally known foreclosure defense attorneys.
I see a number of problems for the Plaintiff. By not serving you within 120 days of when the original Summons was issued, the case is subject to dismissal. There is an exception to that--if the Plaintiff can show good cause, it can get an extension, so there may be an Order in the file giving the Plaintiff more time to serve you. However, I doubt that a judge would give them an additional 240 days to serve you, unless they went back to the judge a number of times.
Since you are obviously at an address that the Plaintiff knew about, if I am correct in my supposition that they went through the publication approach to service, then the entire service by publication can be tossed if it can be shown that a diligent search was not performed. If the Affidavit is bogus, the service itself can be quashed. Obviously you could have been served by personal service--hand delivery--because on 10/18/11 you were served.
Your making a response yourself which do not raise these types of concerns will act as a waiver. I suggest that you make a trip to the courthouse to get copies of the pleadings.
You would respond to the amended complaint. However, not serving the original complaint for one year is a violation of the rules. It may entitle you to relief and/or dismissal. You should consult an attorney immediately so as not to waive any of your legal rights.
