Is Verbal Authorization to Accept Service by a Roommate a Valid Method of Service?

Last month, a defendant appealed a default judgment saying she was never served.

In TN Farmers Mutual Insurance v. Johnson, a Deputy testified that the Defendant (Ms. Johnson) gave him verbal authorization to leave the documents at her residence with an individual who she identified as James Johnson. Deputy Thompson followed her directions. (Legally, as long as the recipient provides verbal authorization of service, this is a valid method of service). Ms. Johnson said she had no recollection of this authorization. The court ruled that Ms. Johnson should not be considered a reliable witness due to the emotional trauma she endured. Deputy Thompson's recollection of events was considered credible. 

The Appeals Court distinguished another case.

In Watson v. Garza, two separate individuals were served for their equal involvement in an accident. The suit was filed against both Garza and Harber but only Harber was served. Garza appealed because he never received notification of the suit and did not authorize Harber to accept the process on his behalf. No evidence was presented or found against this claim. 

According to the Tennessee Rule of Civil Procedure 4.04(1), service is achieved “by delivering a copy of the summons and of the complaint to the individual personally, or if he or she evades or attempts to evade service, by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, whose name shall appear on the proof of service, or by delivering copies to an agent authorized by appointment or by law to receive service on behalf of the individual served.

Verbal authorization by the defendant to leave with a roommate is valid. Although it can well lead to a messy factual dispute.

When do you need a Quiet Title Action?

In short, the answer is when the title insurance company says so. The lender won’t lend you money because of an issue raised by the title insurance company.

A Quiet Title action is typically needed by individuals or entities who have a disputed or unclear title to a property. This legal process helps "quiet" any challenges or claims against the property title, ensuring clear ownership.

Most quiet titles that I’ve handled stem from a tax sale in the chain of title. In Georgia, insurers generally won’t insure for 20 years after a tax sale without an order from a court quieting title. In Tennessee, it’s shorter, around 7 years. These time periods are set by the insurers to minimize risk.

Besides tax sales, quiet titles arise when there are two parties claiming title. I’ve seen this when the same seller has deeded the property to two different purchasers and the first didn’t record the deed. This usually comes form inherited property and situations when there are other issues with title.

Lastly, I see quiet titles when there is unclaimed property and the owner is claiming adverse possession.

In these cases, a Quiet Title action helps the property owner confirm clear, undisputed ownership, enabling them to sell, mortgage, or enjoy the property without legal concerns.

I handle a lot of these in Tennessee and Georgia. Please contact me if you need counsel.

Al Roker and Gaining Ground

Al Roker (yes, that Al Roker) is the executive producer of a new documentary on heirs property. Heirs property refers to property owned by the descendants of the deceased persons listed on the deed, where the estate was never probated or administered. This land very often involves substantial title issues impeding selling the land for value or borrowing against it.

Gaining Ground: The Fight for Black Land tells the story of land loss among black farmers since the Civil War. One study showed that black farmers lost $326 billion worth of land in the 20th Century.

One of the proposals to ameliorate and correct this loss is the Uniform Heirs Property Act.

You can read my article in the Tennessee Bar Journal about Tennessee’s implantation of the Act.

Georgia Quitclaim Deed with possible forms

Here’s how to prepare a quitclaim deed in Georgia.

At the very top you must have the address for where to return the deed to after it’s recorded. The clerk will often return it if you don’t have this.

The deed must identify the seller whose name goes first. The seller is often identified as the Grantor or Party of the First Part. This seller should be all the owners, all the names listed as buyers on the prior deed. Use the full name of the seller (and the buyer) including Jr., Sr. etc.

The buyer’s name goes next. The buyer is often identified as the Grantee or Party of the Second Part

 THE MOST OFTEN SCREWED UP PART is the legal description. You can’t just put the address. If you do, the deed will likely have to be redone or a court action will have to be filed to clear up the property.

Most often, you can use the legal description from the prior deed. It usually begins “all that tract or parcel of land…”

After the legal description, do everyone a favor and identify the previous deed by deed book and page number. This also helps identify the property if there is an error in the legal description.

Below (sometimes above) the legal description, language indicates that the seller is transferring what interest she has (if any) in the property. There is no “warranty” language so the seller is not promising she necessarily has an interest in the property.

The Seller (not the buyer) must sign at the bottom in the presence of a witness and notary public.

When you file this deed, you must file it with a PT-61. Go here to do this. You will need the addresses for the buyer and seller as well as the county tax parcel number. Print this form out and take or mail it with the deed to be filed. It currently costs $25 throughout the state to file a deed.

Below are links for quitclaim deeds approved by some county clerks. These aren’t the forms I use, but are similar and should work state-wide.

https://www.maconbibb.us/wp-content/uploads/2020/05/FILLABLE_QUIT_CLAIM_DEED.pdf

https://www.cobbsuperiorcourtclerk.com/wp-content/uploads/2017/07/Approved-Quit-Claim-Deed-e.pdf

A quitclaim deed is very handy for a lot of purposes. However, there are definitely times it should not be used. Contact a real estate lawyer for help.

How to Get Access to Deceased’s Cell Phone

Apple wants a court order from a probate court giving them authority to provide access to a cell phone. The order requires

§  The name and Apple ID of the deceased person.

§  The name of the next of kin who is requesting access to the decedent’s account.

§  That the decedent was the user of all accounts associated with the Apple ID.

§  That the requestor is the decedent’s legal personal representative, agent, or heir, whose authorization constitutes "lawful consent.”

§  That Apple is ordered by the court to assist in the provision of access to the decedent’s information from the deceased person's accounts. The court order should be addressed to the relevant Apple entity.

 See more information here.

It’s also quite easy to add a “Legacy Contact” in your phone that grants access to your phone after your death. this only requires a death certificate instead of a court oder.

Go to settings, tap your name, tap “Password & Security” then tap “Add Legacy Contact” and go from there. Again, go here for more information.

OTHER: Information about how to access a Google account can be found here.

Tennessee: A “residential use only” restriction on restrictive covenant prohibits short term rentals, like AirBNB

In the April, 2022 decision, Pandharipande v. FSC Corp, the Tennessee Court of Appeals held that the real property was subject to a declaration of restrictions and an amendment. The first prohibited non-residential renting and the amendment prohibited leasing for less than 30 days.

The case relied on an older case where a real property was being used like a hotel; that was stipulated to. The Court said this distinction didn’t matter.

The case is likely to be appealed to the Tennessee Supreme Court.

The case is here and you can watch the oral argument here.

Remote Video Notarization in Georgia was good while it lasted

Although I didn’t use remove video notarization very much, I found it really helpful at times. I hoped that it would be a reform that would last past the COVID era.

It looks like the Emergency Order from the governor of Georgia is going to end as of April 15, 2022 and with it, the end of remote video notarization.

Per the State Bar of Georgia:

On Monday, March 21, Gov. Kemp issued a final renewal of the State of Emergency for Continued COVID-19 Economic Recovery (Executive Order 03.21.22.01), which will terminate on April 15, 2022. Accordingly, the provisions of the State of Emergency for Continued COVID-19 Economic Recovery – Regulatory Suspensions, Executive Order 09.20.21.02, will terminate on April 15 as well.

As you may recall, Executive Order 09.20.21.02 includes suspension of or revised requirements for compliance with statutes related to notarization (page 5), attestation (page 6), surety bonds (page 8), oaths for grand juries (page 9), attendance for grand juries (page 10) and the renewal of weapons carry licenses (page 10). Please be advised of these areas impacting the judicial system and begin to prepare for these suspensions to be lifted.

View Executive Order 03.21.22.01 here.
View Executive Order 09.20.21.02 here.

For your reference, all Executive Orders may be accessed on the governor’s website.

How much does it cost for a real estate attorney?

The classic answer is, “it depends,” but I’ll try to give you a better idea.

Real estate attorneys perform a variety of services. Many real estate attorneys perform only “transactional” work which means preparing documents and conducting real estate closings (where the property is sold or transferred form seller to buyer).

Other real estate attorneys handle litigation which are lawsuits. For instance, and to simplify matters greatly, when a seller decides to sell her property, she finds out through the sale process that there is a problem that prevents the land from being sold. She would hire an attorney to fix that issue. This might be that there isn’t access to the road. Or there was a prior owner that had a loan that wasn’t paid off and fell through the cracks. Or a prior owner died and her estate wasn’t handled property. There are many tools to fix these problems, but it often requires a lawsuit and the litigation process.

For transactional attorneys, prices can often be given as flat fee costs. For instance, if you need an attorney to review title (the transfer history) of your property, many will do so for around $250.

If all you need is a quitclaim deed, for instance to transfer a property to a child or spouse, then that can be handled for around $200. I’ve heard of attorneys in town that do it for $100.

If you need an attorney to prepare deeds and closing documents, this will depend on what documents you need. If there is a lender involved, then a title company will work with the lender and agents and add this to the closing costs. It then comes out of the proceeds at closing. You can contact the title company to get the exact fees they charge.

If you are trying to handle a “cash” sale, without a lender, an attorney will often prepare a deed and a closing statement, a seller’s affidavit and a few other typical documents for $600-$1000.

For litigation, it really depends on the circumstances. Attorneys that handle a lot of these types of cases may still quote flat fees. For instance, a quiet title action, which is a very useful lawsuit to resolve a host of issues, might run about $3500. Of course, this still depends on how many defendants are involved and the likelihood of lengthy litigation.

In other situations, attorneys will just bill you their hourly rate. For instance, my current rate is $250. Although that sounds like a lot, an experienced attorney can do a lot of work in a few hours. The costs really increase when there is a trial, so that’s a good thing to avoid if possible.

I hope this gives you some idea of the costs you’re looking at with your real estate issue. Feel free to call or email with specific questions.

Here’s a summary table. Please understand this is just a general idea; these are not necessarily the prices I charge or anyone in particular charges.

Quitclaim Deed	Transfers property when no money changes hand, like to child or spouse	$200
Cash closing (no title insurance)	Transfers property when money is paid, but no lender is involved and title insurance is not purchased	$600-$1000
Quiet title action	Lawsuit that resolves title issues resulting in court order	$3500 and up
Basic probate	Transfers property at death of owner	$750 and up
Title search/abstract	Shows transfer history and identifies title issues with property	$250

Watch those process servers! How to kick out a judgment

Tennessee process servers can sometimes play fast and loose with the rules of service. Here are a few things to look for to make sure you have good service (or ways to get out of a judgment!).

1. The return of service must have the server’s name and address.

2. The return must have the name of the person served and the manner of service.

Simply writing “served defendant” is not enough.

In Cornerstone Financial Credit Union vs. Joshua Mundy, the trial court dismissed the action of the lender trying to collect after a default judgment. In doing so, the court noted that the return of process did not have the process server’s address and did not describe the manner of service. Instead, it just said “J. Smith” had “served Joshua Mundy.” This wouldn’t do.

The Court of Appeals affirmed the trial court. It listed the relevant Tennessee statutes as to proper service:

Tennessee Code Annotated section 16-15-901(b):

A civil warrant, attachment or any other leading process used to initiate an action in general sessions court and subpoenas or summons may be served by any person designated by the party or the party’s attorney, if represented by counsel, who is not a party to the action and is not less than eighteen (18) years of age. Service of other process and orders of the courts of this state shall be by sheriffs, constables or as provided by law. The process server must be identified by name and address on the return.

Tennessee Code Annotated section 16-15-902(a):

Any person serving the process from the general sessions court shall promptly and within the time during which the person is served must respond, make proof of service to the court and shall identify the person served and shall describe the manner of service.

Courts will stick to these requirements.

In Apexworks Restoration Vs. Derek Scott, a man and woman lived together. The process server met the man, served him and the man signed the warrant. The woman wasn’t there, but the process server entered a return of service stating that she was (perhaps thinking he served her through her roommate).

The man later contested service when the plaintiff pursued collection efforts. The man argued that the service return did not have the server’s address and was therefore deficient. However, the man had signed the warrant as having received it.

Does the technical defect render the service void? No. The court mentioned that “it is the service of process – rather than the return of service – that must be accomplished before a court obtains personal jurisdiction.” The man had adequate notice of pending judicial proceedings to satisfy the applicable law.

Watch those process servers! A judgment entered without jurisdiction is no judgment at all.

Georgia Foreclosures during COVID-19

There is a 60-day foreclosure moratorium on most mortgages. How does that affect the purchase of foreclosed properties in Georgia?

Several very important federal departments that back home mortgages, have issued letters or bulletins prohibiting foreclosing on properties for the 60 days after March 18, 2020. These include the Department of Housing and Urban Development, the Department of Veterans Affairs, the Department of Agriculture and Fannie Mae. There are some exceptions, particularly for properties that have been determined to be vacant or abandoned.

All in all, this covers about two thirds of all mortgages. There are big penalties for violating these rules, even if the property is not ultimately sold at foreclosure.

All this to say, you may not be able to obtain title insurance on a property bought at foreclosure if the foreclosed security deed was federally insured. Even if the note and security deed are privately held, title companies may give you a hard time. With so many foreclosures being prohibited, they may not want to look into the gritty details to make sure your foreclosure purchase was done just right.

It’s a risky business out there, so be careful.

You can find more information here, and specifically HUD’s Mortgagee Letter 2020-04 here.