Posted by Barbara A Demonte on 3/27/12 3:34pm
Msg #416213

Rules for process servers in TX on serving deceased persons

Is there anyone from TX that knows if it is legal to substitute serve an ex-husband for a deceased person? They were divorced before her death.

Reply by HisHughness on 3/27/12 4:31pm
Msg #416220

I don't think it's possible to serve a dead person, though..

...I'm always willing to learn something. I think you would have to get an administrator, administrator with will attached, or an executor/executrix appointed by the probabe court. And I don't know what would happen if the decedent's estate has been administered and a final order issued.

Reply by Barbara A Demonte on 3/27/12 7:10pm
Msg #416241

Re: I don't think it's possible to serve a dead person, though..

They actually served papers for my deceased sister last month on a foreclosure to her ex-husband as a substitute service after being informed that she died in 2002. Just curious as to whether it was legal. In Florida, you can't serve civil process to a dead person.

Reply by MW/VA on 3/27/12 5:30pm
Msg #416227

Sorry--I thought this was a joke & was waiting for the

punchline. :-)

Reply by Barbara A Demonte on 3/27/12 7:24pm
Msg #416243

Not a joke Marilynn, got a copy of the affidavit of service.

The process server indicated that the female living in the home with my former brother-in-law wasn't my sister and actually went around asking the neighbors what his current wife's name was, then they wrote on the affidavit that my brother-in-law had a strong smell of alcohol on him. I'm asking because Mom wants to file a grievance with the bar on the lead attorney for not following civil procedure.

What's weird about this is that the law firm and mortgage company know the house is in a trust, they know my mother is the Trustee, they know my sister died in 2002, but they don't serve my mother and substitute serve a dead person and actually file an affidavit of service. The mtg company has refused to accept the payments on the house, forcing it into foreclosure and my mother is fighting them. Less than $25,000.00 is owed on the house and they could actually make money on this foreclosure because the house is worth far more than what is owed. The thing is that since the home is no longer homesteaded they think they can get away with doing this.

Reply by MW/VA on 3/27/12 8:38pm
Msg #416246

Sorry, Barbara. I didn't realize this was a personal

situation. What are the grounds for this? Is your sister's name still on the mtg.?
I certainly hope your family has a good attorney. Care to share who the lender is?

Reply by desktopfull on 3/27/12 9:23pm
Msg #416255

Just thought some of the TX lawyers or paralegals on the

forum might have some idea on this unusual situation. The estate was closed years ago. The home is in a Trust and in 2010 the mtg. company refused to accept anymore payments and have forced the home into foreclosure. They actually took 3 payments and then sent the money back a month later in the form of a check made out to my deceased sister and told my Mom to just endorse and cash the check and she informed them that she would not forge my sister's signature and commit fraud. They refused to re-issue the check or reverse the debit back to her account. This is called conversion of funds and carries a penalty of treble damages here in Florida. They have also violated the Fair Credit Act by refusing to furnish the requested payment history on the house, a copy of the note and mortgage. We have proof that they received many payments on the house over the last 22 years and held posting the payment from 6 to 10 days, which increases the interest they are collecting on the mortgage. They are supposed to post payment within 24 hours of receipt or next business day if received on week-end. And now they have a process server in TX substitute serving a dead person. It can't get much nuttier.

Reply by BrendaTx on 3/27/12 7:02pm
Msg #416240

I don't think so.

I believe that once it is determined the person is deceased, if service is needed, legal eagles must figure out who is authorized. The person is gone...if the estate is the real target, then the administrator or executor, like Hugh said. If it has been several years, the statute of limitations may have elapsed to pursue the issue.

Reply by LKT/CA on 3/27/12 8:51pm
Msg #416250

I believe you sue the deceased person's estate.

http://www.nolo.com/legal-encyclopedia/free-books/small-claims-book/chapter8-10.html

Reply by LKT/CA on 3/27/12 8:51pm
Msg #416251

Correction

You file a claim against the deceased person's estate.

http://www.nolo.com/legal-encyclopedia/free-books/small-claims-book/chapter8-10.html

Reply by John Schenk on 3/28/12 9:57am
Msg #416311

Scire Facias...TRCP Rule 152

TRCP Rule 152. DEATH OF DEFENDANT

Where the defendant shall die, upon the suggestion of death being entered of record in open court, or upon petition of the plaintiff, the clerk shall issue a scire facias for the administrator or executor or heir requiring him to appear and defend the suit and upon return of such service, the suit shall proceed against such administrator or executor or heir.

JJ

Reply by Barbara A Demonte on 3/28/12 2:24pm
Msg #416345

Thanks John, located the TX statutes for process servers

last night and it didn't cover anything about what I was inquiring about.