Banks and other lenders who in the face of the robo-signing and incorrect or fraudulent paperwork scandals underwent a self imposed freeze on foreclosure filings are now restarting their foreclosure processes. This increase in foreclosure activity is reflected throughout the country as lenders feel their systems are now meeting the required criteria.

The numbers of foreclosures are still below the levels of the comparable period in the previous year but the CEO of RealtyTrac, James Saccacio, feels that this is a temporary situation and that foreclosures are starting to gradually increase.

House prices will continue to maintain a downward trend because of any increase in foreclosure filings but the court system, which recently received a $45.6 million loan to offset the shortfall in incomes due to the foreclosure filing fees coming in below the estimated targets, should now see their revenues increase in tandem with the rise in filings. For every 130 housing units in Florida there was one foreclosure during the third quarter which marked a decrease of 57 percent from the third quarter in 2010 but signified a rise of 15 percent on the second quarter.

The report also points out that the length of time that foreclosure cases take to come to a conclusion is an additional problem, with foreclosed properties in Florida taking an average of 749 days to process. This delay in processing cases has prompted lawmakers in Florida to propose switching to a non-judicial or a hybrid foreclosure process such as some other states practice. However Sen. David Simmons, R-Maitland, stated that any switch would not affect the current backlog of cases and would solely apply to foreclosures in the future.

In 2009 the legislature diverted court funding to the State Courts Revenue Trust Fund from general revenues. It was estimated that the Trust Fund would generate $432 million this fiscal year but this estimate has since been recalculated to $272.9 million. The failure of mortgage foreclosure filing fees to meet expectations is the main reason for the downgrading of the estimate. A number of banks and loan providers have put a freeze on foreclosures due to the furore caused by the robo-signing scandal.

It is not the case that the court system is overspending on the budget set for it by the legislature rather it is the perhaps over optimistic projections of court incomes that has given rise to this problem. Before an earlier loan of $19.5 million was granted in April this year contingency plans were drawn up to deal with the funding deficit, these measures included unpaid leave for staff, case managers being laid off and closing courtrooms for 14 days during a 2 month period.

Justice and the ability of courts to provide access to it depend upon there being sufficient consistent funding available. Investigations into this are presently being undertaken and recommendations are expected by November 1.

Incorporated into Rule 4(f) are the following means of service on persons in a foreign country. Any
and all internationally agreed means or treaties of service reasonably calculated to give notice.
Where no internationally agreed means of service exists service maybe effected by any means that
conform to the rules and procedures of the foreign country, these may include letters rogatory or
letters of request if applicable in the country of destination, personal delivery or any form of mail.

Rule 4(f)(3) gives a large amount of flexibility to the court and the litigants in serving process in
unforeseen circumstances where a service convention does not provide for a timely or appropriate
method of service. U.S. courts have, within due process, applied this provision with a deal of
flexibility, one instance being the authorising a plaintiff to serve an internet business outside the U.S.
by email. It was deemed that notice by email was reasonably calculated to give notice of action and the opportunity to be heard as the defendant listed no physical address and chose to operate via email.

There are a number of countries that look upon the service of provision as an official act of a foreign sovereign nation that should not happen without treaty within their own borders. This reluctance to accept service is more likely if attempted by foreign nationals. The use of local agents to make service of process outside the United States on behalf of a U.S. litigant is one way of overcoming the objections of the destination state.

Other components of Rule 4 can be referred to where Rule 4(f) does not address the particular
matter under consideration. The provisions contained in Rule 4(l) deal with proof of service
without the United States. Rule 4(h) allows for service of process upon a foreign corporation in a
judicial district in the United States in certain circumstances. Papers may be delivered to an officer,
managing agent or other agent authorised to receive service and is allowable under the laws of the
state in which the District Court is located or in which service is made.

The laws of some states allow for the service upon a foreign defendant through its U.S. subsidiary
as the subsidiary has acted as the agent of the parent company, or because a state statute deems
the subsidiary an involuntary agent on behalf of the parent for service of process. The U.S. Supreme Court has held that the Hague Conventions requirements are not contravened by such service as delivery of the summons to the U.S. subsidiary is sufficient and complete so transmission abroad of a judicial or extrajudicial document is not required.

If you need assistance with International Service of Process –
Call my office at 1-800-852-5002 to get more detailed advice, information and action steps.

Each contracting state has to designate a Central Authority that will receive requests from other
signatory states and which will conform to its own laws. Generally litigants will utilize this Central
Authority for service of process. If the Central Authority is of the opinion that the request does not
comply with the terms of the convention it should speedily inform the applicant and specify why the
request is being refused.

Litigants using the Central Authority to effect service must file a formal request form with the
Authority, in the U.S. using a special form.

The convention does not specify a time frame for service but provides for alternative methods of
service if there has been no response by a Central Authority to a request after six months. Because
there is no specified time frame Rule 4(m) of the Federal Rules of Civil Procedure exempts service in a foreign country from the usual requirement that a summons and complaint must be served within 120 days of filing.

There is provision in Article 10(a) of the convention for the direct service of documents to persons
abroad by postal channels provided this is allowable by the country where the documents are
being sent. There is some argument in U.S. courts whether this provision allows service of process
or judicial documents served after suit has been instituted. It is generally accepted though that
this provision does allow service of process as this is the position taken by a large majority of the
signatory states. Service by registered mail is deemed to be the most effective way of service by
mail as some courts approve of this method while ruling service by ordinary mail to be ineffective.

Article 10 (b) and (c) allows for service between contracting states by direct means provided the
country of destination has no objection to this means of service. The agent ,usually a judicial officer, official or other competent person, will be of the country involved.

The most effective method of service is through the designated Central Authority but where time is
critical direct service, where permitted, may be a faster alternative.

A final warning when serving process abroad; If a plaintiff is seeking monetary damages always use the formal method which is through the central authority – Otherwise your final judgment will not be enforced in the foreign country.

If you need assistance with International Service of Process – Call my office at 1-800-852-5002 to get more detailed advice, information and action steps.

The legal profession at that point was enjoying an unequalled period of prosperity and the hope of many within the industry that was that the recession would be short lived and they would come through it relatively unscathed compared to other industries.

Unfortunately the signs are that this hope will not be realised, not because there will be less need for a recourse to law but more due to an urgent need for improved more economically viable legal services that can be equal to the challenge of a more globally centred world that is changing constantly. This can be an opportunity for a re-assessment of long held views of lawyers and their clients.

Lawyers in the U.S., whatever type of practitioner or practice, face a market that is showing a slowdown in growth. The effect of this may include more competition as weaker firms fall by the wayside and profit margins contract. Opportunities for law students to aspire to large salaries may be limited although there will probably be more openings outside the bigger firms.

Added to all this are technological advances that account for a large chunk of billable work, an international market that that will provide competition and a large store of knowledge available to canny corporate clients via the internet.

A bill sponsored by State Rep. John Patrick Julien, D-North Miami Beach and is in the process serving business, was passed unanimously by the Legislature and signed into law by Gov. Rick Scott. It became effective on 1st July. The bill also allows lawsuits to be served on registered agents or any employee of the registered agent if corporations. The registered agent is most likely to be an attorney in a commercial litigation practice.

Even though gated communities have increased dramatically in recent history Florida becomes on the third state, following California and Georgia, to pass a law that allows for the serving notice of lawsuit on residents of such communities according to the spokesman for the National Association of Professional Process Servers which is based in Oregon.

According to Julien prior to the bill the plaintiff would incur tremendously high amounts of costs and it could even take years to effect service. One alternative to serving the process personally of course is to publish notices but judges recognize the poor likelihood that a defendant will see a public notice. Julien said this is often not the best way to ensure fair due process.

House Bill 59 which was passed unanimously in both houses should end the necessity of process servers undertaking lengthy stakeouts at homes and workplaces.

The law has cleared up a technical issue too. On occasion judges have invalidated service because the process server didn’t initial the documents for recording in the place a judge specified and this led to confusion about where to annotate a document. This is now clarified in the bill in that the initial should be on the front page of the service documents.

Though several attempts to get a bill through the Legislature had been made in the past it is interesting that a freshman Democrat has been the successful one. Julien thinks that the law could help clear the backlog of foreclosure cases too.

Process servers are very resourceful people and will have to be extra resourceful if they are to serve documents on the residents on Fisher Island just off South Beach. Access to the Island is controlled by way of a privately operated ferry by the Islanders who can refuse to take anyone to the Island on the ferry.

So process servers may have to learn to swim or club together and get a boat to take them across the Island should there be a need for effecting service in the future.

As the trend towards more mobility increases and static items such as mail boxes and phone lines are probably on the decline in some countries it is getting harder for serving legal papers.

Although  social media sites already do cooperate with the law enforcers by disclosing information and content about their subscribers, it does make some sort of sense for them to be able to have a method for service of process.

There are good and bad things with this  method of service.  What would be the actual service date?  What if the user who was being served had no means to get onto that social networking site for whatever reason?  There would have to be a specific page that brings to the attention of the user as soon as the logon was initiated that the user was being served.

I wonder if people will be just as keen to log on to their social networking sites once this method of service of process becomes a little more commonplace?

It was noted by Sharon Bock, a member of the authority board and Palm Beach County Clerk, that many paralegals and legal assistants will take over most of the electronic filing duties.

Presently the e-filing system is accessed by lawyers who use their Bar attorney number and possibly because lawyers want their staff to e-file on their behalf they have to give their staff their Bar attorney number to allow them to fulfil this duty.  This is not good security practice.

Sharon Bock who is a member of the sub-committee which has been established also noted that there is a lot of responsibility on anyone using the system and the Authority is responsible for security and management of the system.  However if the Authority had to lay down tight regulations on who can access the system then it could be said that we’re effectively running the different law firms instead of the law firms running the business.

Another member of the sub-committee charged with looking at how e-filing in law firms can be used by non-lawyers is Jim Jett who is a fellow board member.

Another sub-committee member and a Bar Board of Governers member is Laird Lile who serves on the Supreme Court’s Florida Courts Technology Commission and is an informal liaison to the e-filing board.  Lile is seeking opinions from lawyers on who should have access and comments can be sent to him at lile@lairdlile.com.

Lawyers and paralegals are expected to sit on this sub-committee too.

Watch this space!

Scott said that they had a plan to ensure that Florida fairly gets reimbursed for the damages BP has caused.

He also said it would be resolved more quickly this way and less costly.

There are critics who have voiced concern against Scott and Attorney General Pam Bondi  because legal action has not been taken as yet despite being in office for four months.

Steve Yerrid, a Tampa attorney who has served as special counsel on the oil spill to Scott’s predecessor Gov. Charlie Crist, says that caution and prudence are always the best guidelines and although the state has a solid claim against Transocean the governor has an obligation to get as much compensation as is possible and perhaps all avenues of reparation should have been pursued.

The plan Scott is talking about is to file an interim claim this summer under the Oil Pollution Act so that they can obtain economic and environmental damages from BP, Transocean and Halliburton.  It is hoped that this would happen this summer unless BP refuse to cooperate.

However other governments have had good results with a similar approach including Bay County who reached a $2.6 million settlement for its lost tax revenues in 2010 with BP.  The lawyers involved in these negotiations as well as those at Panama City Beach and Walton County congratulated Scott for taking the right course of action.

Carl Nelson, an attorney at Fowler White Boggs in Tampa said “It’s important to follow this claims process” and explained that Wednesday’s deadline for plaintiffs in the Transocean suite is not a deadline for Florida.  The deadline is for those claims under maritime law which deals with death and injury or off shore supply vessels which have been damaged by the explosion.

Carlos Muñiz, deputy attorney general said that the Transocean litigation was limited and meant that Florida would not be choosing the lawyers and would not be in control of the matter either.  Also by being involved in the Transocean litigation it could possibly expose Florida to attorney fees of perhaps hundreds of millions of dollars for not very much.

Muñiz also said that Florida is focused on procedures established through the Oil Pollution Act and that the goal is to get maximum recovery in the shortest possible time.