UNPUBLISHED AZ APPELLATE DECISION ON IMPROPER SERVICE VOIDS FORCIBLE DETAINER

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SEE FHLM V TIETJEN LACK OF PROPER SERVICE OF PROCESS CV20100212

Before you start thinking that this decision is of little consequence, consider this: First Magnus cases are riddled with service problems just as most of the cases are filled with fabrications, forgeries and misrepresentations. This Court might reconsider its decision to make this case unavailable to be cited as precedent when it starts seeing more of these appeals. I know of one case where the Judge actually threatened to cuff the party and wait for service in court.

But read the case carefully because it is correct as to its reasoning. You can easily waive service of process by asking for anything other than dismissal for lack of jurisdiction. The converse mistake is also being made where once the Judge has ruled, the homeowner fails to assert defenses for fear of it being construed as a waiver of the original objection to service. Once the Judge rules, all defenses should be raised.

While this case is NOT some great victory for homeowners across the state of Arizona nor anywhere else, it is another incremental step of the court system in scrutinizing the actions of the supposed lenders. It also reveals some pique by the appellate judges about the cavalier attitude of trial judges towards homeowners in ignoring the express public policy of the State of Arizona that foreclosures are a bad thing for the state as well as the homeowners. The legislature passed that language, not some wild-eyed blogger. Look it up.

 

6 Responses

  1. @A Man – the article is a little dumbed down as newspaper articles tend to do when reporting on case developments, but it actually does key in on some important issues. the claims of fraud are very hard to prove. and most of the discussion here and elsewhere ignores key components of fraud : a representation of an existing fact; its materiality; its falsity; the speaker’s knowledge of its falsity; the speaker’s intent that it shall be acted upon by the plaintiff; plaintiff’s ignorance of its falsity; plaintiff’s reliance on the truth of the representation; plaintiff’s right to rely upon it; and consequent damages suffered by plaintiff.

    The great MERS fraud in the DOT never tricked people to sign the DOT, nor did it, in and of itself, result in damages. The word fraud is thrown around too often and too easily. It’s actually quite difficult to adequately plead in a complaint and even harder to prove. The claim is usually thrown in a complaint as an additional claim as opposed to the primary claim, since practitioners understand the issues with it.

  2. it’s an unpublished AZ opinion, so be careful trying to use it. not worth much in AZ and worth nothing elsewhere, but the principals are sound. check local listings though as things are different all over. in some states, posting it on the door is sufficient service for possession of the property. publication may also be an option. almost universally you must be personally served to have a money judgment taken against you, but eviction is much less stringent.

  3. Unfortunately, trial court judges are cavalier about service of process all day long. The refusal to conform with the legislative requirements of Service (as set forth by Statute) is a consistent failure of the lower courts. Some judges will call the “Commencement of Action” Statutes “primarily a Notice provision” and take the position that the whole idea of service is to give the defendant some “notice.” That argument is utter rubbish, of course, yet it demonstrates the abusive nature of many courts. A sad commentary, to be sure.

  4. I think you will find that many cases will be decided for the homeowner in appellate court. The appellate court is somewhat removed from the day-to-day issues in the lower court. Some of those issues are that the lawyers must appear before the lower court judges on a regular basis and need the approval of those judges. Not to say that this is the way the courts are supposed to be run, but they are anyway. The lawyers and judges are all in it together.

  5. In September 2008 I sought two orders to show cause to mark vacated

    two void Judgments ad initio dated June 30 1997 for lack of NY State

    Court Jurisdiction.

    (the case was REMOVED to Federal Court on May 8, 1997 , upon Federal Question, started and then with pressure from the Bank remanded on July 29 1997, by the Federal Judge saying Federal Court does not have jurisdiction of who can create money.)

    pursuant to the United States Supreme Court Case Elliot v. Piersol.

    Elliot v. Piersol is the Supreme Court case that states:

    ” Under Federal Law which is applicable to all States, the US Supreme Court stated that is a Court is “without Authority, the judgments and orders are regarded as nullities. They are not voidable but simply void and form no bar to recovery sought, even prior to reversal in opposition to them. …”

    In my particular case Judge Alice Schlesinger at war with the US Constitution refused to follow the Supremacy Clause of the US Constitution. and ruled against the Supreme Court case.of Elliot v. Piersol.

    For all of you with insufficient process, and a Judge that follows the Constitution, I think the law of Jurisdiction applys. Without legal process served a Court does not get Jurisdiction.

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