MR. MARTINEZ OF MIAMI, INC., A FLORIDA CORPORATION, LEONEL MARTINEZ AND MARGARITA MARTINEZ, APPELLANTS,
v.
PONCE DE LEON FEDERAL SAVINGS AND LOAN ASSOCIATION, A FEDERAL SAVINGS AND LOAN ASSOCIATION, APPELLEE
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Mr. Martinez appealed the trial court's denial of his motion to set aside a clerk's default entered in a mortgage foreclosure case. The dispute centered on whether a postal cancellation date two days later than the service date stated in Martinez's certificate of service was sufficient to rebut the prima facie evidence of timely mailing under Florida Rule of Civil Procedure 1.080(f).
No. The court held that service by mail is considered complete upon mailing, and a certificate of service is prima facie proof of the date sworn to by counsel. A postal cancellation date two days later than the certificate date is not sufficient to rebut this prima facie proof without an evidentiary hearing.
[1] Service by mail is complete upon mailing, even if the document has not yet been received by the clerk or opposing party.
[2] A certificate of service is prima facie proof of service on the date sworn to by counsel.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is agreed that service of a paper, other than a complaint, is complete on mailing and that the certificate of service is prima facie proof that service was effectuated on [*154] the date sworn to by counsel.”
Establishes the foundational rule that service by mail is complete upon mailing and the certificate provides prima facie evidence of the date of service.
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Join FLexlaw to unlock all legal intelligencePonce De Leon Federal Savings filed a foreclosure action against Mr. Martinez. Mr. Martinez mailed a motion to stay proceedings on the twentieth day a…
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PER CURIAM.
Ponce De Leon Federal Savings sued Mr. Martinez to foreclose a mortgage. Mr. Martinez filed, by mail, a motion to stay proceedings which, according to the certificate of service, was served by mail on the twentieth day following service of the complaint. On the twenty-first day, and before Mr. Martinez’s motion to stay reached the clerk, the bank filed a motion for a clerk’s default. The default was entered on the twenty-second day. Mr. Martinez’s motion to stay was received by the clerk on the twenty-third day. The postal cancellation stamp also bears a date of the twenty-third day following service of process. This appeal is brought from an order of the trial court denying Mr. Martinez’s motion to set aside the clerk’s default.
It is agreed that service of a paper, other than a complaint, is complete on mailing and that the certificate of service is prima facie proof that service was effectuated on the date sworn to by counsel. Fla.R.Civ.P. 1.080(f). The question presented by this appeal is whether the cancellation date on the envelope, which is two days later than the attested-to date in the certificate, without more, is sufficient to overcome the prima facie case made by the certificate.
We agree with Gavin v. Gavin, 456 So. 2d 535 (Fla. 1st DCA 1984), to the extent that ease holds that service by mail is considered complete on mailing even though a copy has not been received by either the clerk or the opposing party. See also Myerson v. Block, 404 So. 2d 807 (Fla. 3d DCA 1981). We disagree with the trial court’s implicit determination, made without the benefit of an evidentiary hearing, that a postal cancellation date two days later than the certificate date is sufficient to rebut the prima facie proof of compliance with Rule 1.080(f).1
Reversed and remanded.
. It is not necessary to decide whether we will follow the five-day rule which was adopted in Gavin v. Gavin, 456 So. 2d 535 (Fla. 1st DCA 1984) (to avoid premature entry of default, at least five days should be allowed by clerk for mail delivery after a return date, before default is entered). See also Nemeth v. R.B. Shore, 511 So. 2d 1118, 1119 (Fla. 2d DCA 1987) (rejecting five-day waiting period and recognizing that "there are known delays in mail delivery and should the clerk receive a timely-served response on the sixth, seventh, or eighth day (or later) his properly-entered default would suddenly become improper. Thus, adding an arbitrary number of days for mail delivery is not a complete solution”).
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Citator
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Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013)…ously rejected claims of untimeliness based upon a postmark that falls after the deadline of service where a certificate of service indicates that the motion was timely served. See Mr. Martinez of Miami, Inc. v. Ponce De Leon Fed. Sav. & Loan Ass’n, 558 So. 2d 153, 154 (Fla. 3d DCA 1990) (“We disagree with the trial court’s implicit determination, made without the benefit of an evi-dentiary hearing, that a postal cancellation date two days later than the certificate date is sufficient to rebut the prima facie…
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Jpmorgan Chase Bank v. Svitlana Bigley, 120 So. 3d 1265 (Fla. 3d DCA 2013)…ion may not have been received by either the clerk or the opposing party before the expiration of the ten-day time limit. Nesslein v. Nesslein, 672 So. 2d 582 (Fla. 3d DCA 1996); Mr. Martinez of Miami, Inc. v. Ponce De Leon Fed. Sav. and Loan Ass’n, 558 So. 2d 153, 154 (Fla. 3d DCA 1990). Moreover, the date set forth by counsel in the certificate of service “creates a rebuttable presumption which may be overcome by competent evidence to the contrary.” Migliore v. Migliore, 717 So. 2d 1077, 1079 (Fla. 4th DCA…
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Brem C. Nesslein v. Nesslein, 672 So. 2d 582 (Fla. 3d DCA 1996)…ervice was effectuated on the date sworn to by counsel. Fla. R.Civ.P. 1.080(f). A postal cancellation date is not sufficient to rebut the prima facie proof of compliance with Rule 1.080(f). Mr. Martinez, Inc. v. Ponce De Leon Fed. Sav. & Loan Ass’n, 558 So. 2d 153,154 (Fla. 3d DCA 1990). Reversed.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gavin v. Gavin, 456 So. 2d 535 (Fla. 1st DCA 1984)
- Sol W. Meyerson and Bernice Ann Meyerson v. Block, 404 So. 2d 807 (Fla. 3d DCA 1981)
- Nemeth v. R.B. Shore, 511 So. 2d 1118 (Fla. 2d DCA 1987)