FEDERAL NATIONAL MORTGAGE ASSOCIATION, APPELLANT,
v.
JAVIER A. FANDINO, APPELLEE
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The court held that service of process via Federal Express did not strictly comply with the statutory requirement of registered mail, thus the trial court did not abuse its discretion in quashing service and vacating the judgment.
[1] Strict compliance with statutes governing substituted service of process is essential to obtaining valid personal jurisdiction over a defendant.
[2] Service of process via private courier, such as Federal Express, does not satisfy statutory requirements for service by registered mail.
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Join FLexlaw to unlock all legal intelligenceAppellant attempted substituted service of process on appellees residing in Columbia via Federal Express. The trial court initially granted summary ju…
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PER CURIAM.
We grant the appellant’s motion for rehearing, withdraw our opinion of December 8, 1999, and substitute the following opinion in its place.
The appellant appeals a non-final order quashing service of process made pursuant to section 48.194, Florida Statutes (1997), on the appellees who are permanent residents of Columbia. The appellant filed a mortgage foreclosure complaint against the appellees. At the time that the suit was filed, the appellees were residing in Columbia. Thus, the appellant served the appellees via substituted service of process in Columbia pursuant to section 48.194(2), Florida Statutes (1997). Service of the complaint on the appellees was attempted through the use of two Federal Express international air waybills, one addressed to Constanza Fandino and the other to Javier A. Fandino a/k/a Javier Fandino Gonzalez. Both of the air waybills were signed for and accepted by a D. Botacha.
Less than two months after filing the complaint, the appellant moved for summary judgment.
The trial court granted the motion.
However, before the property was foreclosed upon and sold, the appel-lees filed an emergency motion to quash service of process, and to vacate final summary judgment of foreclosure. In this motion, the appellees argued that the summary judgment should be vacated because they were improperly served.
The trial court granted the motion finding that service of process upon the appellees was not in accordance with the law. All judgments, orders and writs were canceled, vacated and declared void ab initio. The appellant has appealed this order. Where substitute service of process is used, strict compliance with the statutes governing this form of service is essential to obtaining valid personal jurisdiction over the defendant(s).
See Linn v. Kidd, 714 So. 2d 1185, 1187 (Fla. 1st DCA 1998); Aero Costa Rica, Inc. v. Dispatch Servs., Inc., 710 So. 2d 218, 219 (Fla. 3d DCA 1998); Corneal v. O’Brien, 707 So. 2d 908, 908 (Fla. 3d DCA 1998); Floyd v. Federal Nat’l Mortgage Assoc., 704 So. 2d 1110, 1112 (Fla. 5th DCA 1998); Wyatt v. Haese, 649 So. 2d 905, 907 (Fla. 4th DCA 1995); Hobbs v. Don Medley Chevrolet, Inc., 642 So. 2d 1149, 1155 (Fla. 5th DCA 1994); Pelycado Onroerend Goed B.V. v. Ruthenberg, 635 So. 2d 1001, 1003-04 (Fla. 5th DCA 1994).
Section 48.194(2)(a) requires, among other things, that the plaintiff serve the defendant, via registered mail, a copy of the original process and complaint. Also, if service of process is made pursuant to section 48.194(2)(a), section 48.194(4) requires an affidavit which must include:
... the nature of the process; the date on which the process was mailed by registered mail; the name and address on the envelope containing the process; the fact that the process was mailed registered mail return receipt requested; who signed the return receipt, if known, and the basis for that knowledge; and the relationship between the person who signed the receipt and the person to be served, if known, and the basis for that knowledge. The return receipt from the registered mail shall be attached to the affidavit.
§ 48.194(4), Fla. Stat. (1997).
Here, we conclude that service upon the appellees was invalid where the appellant sent a copy of the original process and complaint via Federal Express international air waybills. Service of process by a private courier service does not, strictly speaking, satisfy the statutory requirement that substituted service be made by registered mail. See Global Servicios, S.A. v. Toplis & Harding, Inc., 561 So. 2d 674, 674 n. 1 (Fla. 3d DCA 1990)(suggest-ing that the use of a private courier service to send notice of service of process is “questionable”); see also generally Transco Leasing Corp. v. United States, 992 F. 2d 552, 554 n. 2 (5th Cir.1993)(admonish-ing the bar that service via Federal Express is not service via mail); Audio Enterprises, Inc. v. B & W Loudspeakers of Am., 957 F. 2d 406, 409 (7th Cir.l992)(holding that “Federal express is not first class mail.”); Helmers v. Sortino, 545 N.W. 2d 796, 799 (N.D.1996) (holding that “Federal Express delivery is not mail delivery”).
Moreover, the mandatory affidavit requirement of section 48.194(4) contemplates that service of process was made by registered mail.
Accordingly, since the appellant did not strictly comply with section 48.194, we cannot conclude that the trial court abused its discretion by voiding all judgments, orders and writs entered in this case.
Affirmed.
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Rufino Hernandez v. State Farm Mut. Auto. Ins. Co., 32 So. 3d 695 (Fla. 4th DCA 2010)…eard.” Id. at 908. Where a plaintiff resorts to substituted service, “strict compliance with the statutes governing this form of service is essential to obtaining valid personal jurisdiction over the defendants).” Fed. Nat’l Mortg. Ass’n v. Fandino, 751 So. 2d 752, 753 (Fla. 3d DCA 2000). Without such compliance, the trial court does not acquire jurisdiction over the defendant. We reverse and remand for entry of an order quashing service of process on defendant without prejudice to plaintiff seeking to serve…
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Clauro Enters., Inc. v. Aragon Galiano Holdings, LLC, 16 So. 3d 1009 (Fla. 3d DCA 2009)…rictly construed in order to protect a defendant’s due process rights. See Alvarado v. Cisneros, 919 So. 2d 585, 588-89 (Fla. 3d DCA 2006); Torres v. Arnco Constr., Inc., 867 So. 2d 583, 586 (Fla. 5th DCA 2004); Fed. Nat’l Mortgage Ass’n v. Fandino, 751 So. 2d 752, 753 (Fla. 3d DCA 2000), and cases cited therein. Section 48.031(6), states as follows: If the only address for a person to be served, which is discoverable through [*1012] public records, is a private mailbox, substitute service may be made by le…
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Jennings v. Montenegro, 792 So. 2d 1258 (Fla. 4th DCA 2001)…ient.”). Overall, “[wjhere substitute service of process is used, strict compliance with the statutes governing this form of service is essential to obtaining valid personal jurisdiction over the defendant(s).” Federal Nat'l Mortg. Ass’n v. Fandino, 751 So. 2d 752, 753 (Fla. 3d DCA 2000). When these jurisdictional allegations are not made, it is error for the trial court to fail to vacate its order and quash service. 1155 Inv. Co. v. Tamarac Club. Inc., 537 So. 2d 154, 155 (Fla. 4th DCA 1989). Our review of…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wyatt v. Haese, 649 So. 2d 905 (Fla. 4th DCA 1995)
- Shochet v. Amtrust Bank, 704 So. 2d 1110 (Fla. 4th DCA 1998)
- Pelycado Onroerend Goed B.V. v. Ruthenberg, 635 So. 2d 1001 (Fla. 5th DCA 1994)
- Hobbs v. DON Mealey Chevrolet, Inc., 642 So. 2d 1149 (Fla. 5th DCA 1994)
- Linn v. Kidd, 714 So. 2d 1185 (Fla. 1st DCA 1998)
- Aero Costa Rica, Inc. v. Dispatch Servs., Inc., 710 So. 2d 218 (Fla. 3d DCA 1998)
- Global Servicios, S.A. v. Toplis & Harding, Inc., 561 So. 2d 674 (Fla. 3d DCA 1990)
- Corneal v. Margery O'Brien for the Estate of Gaylord J. Hoftiezer, 707 So. 2d 908 (Fla. 3d DCA 1998)
- Audio Enters. v. B & W Loudspeakers OF Am., 957 F.2d 406 (7th Cir. 1992)
- Transco Leasing Corp. v. United States, 992 F.2d 552 (5th Cir. 1993)