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Have rental home in FC process. We were never served. Now has Affidavit of Avoidance filed. What happens now?

Fort Myers, FL |

In Lee Cty, FL. Had FC filed on SFH rental 6/12/2008. Lender lost mtg documents, so we objected & asked bank to provide original doc's. On 11/9/09 court ordered dismissed for lack of prosecution. Lender filed new FC 2/22/2013. They still do not have original documents. We were not served. On 6/27/13 lender filed with court: Affidavit of Diligent Search and Inquiry, Affidavit of Constructive Service, Notice of Action without Mailing, Affidavit of Avoidance, Copy of Complaint. Is there something we should do now or do we just wait it out? Original FC action was over 5 years ago (6/12/08) & they still don't have the original loan doc's. I do not want them to be able to take it by default if we do nothing. Could we file complaint that they have no orig doc's again? Thx in advance.

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Attorney answers 3


The documents that were filed are evidence of actions that the lender took when they could not find you to personally serve you with the summons and complaint. If done properly, in the eyes of the court, you have been served. The worst thing you can do is nothing. You need to hire an attorney experienced in foreclosure law to help defend your mortgage foreclosure action.

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Your question, and the attorneys' responses, are all addressing how you can fight the foreclosure. However, in all likelihood, the mortgage company will eventually gets its ducks in a row, and foreclose. At that point, you could be liable for a substantial deficiency. You may want to think about filing bankruptcy right now, depending on the rest of your financial situation.


In a legal proceeding it's rarely advisable to "wait it out". The lender will likely produce the original note or file an Affidavit of Lost Note and proceed with the foreclosure. Lenders have options as to service and depending on whether they seek an in rem judgment or monetary relief their methods may vary. There are many variables involved. It's in your best interest to consult with an attorney to discuss your specific facts and legal options.