LIPSONIA MONTES-MUSTIRA AND LUDEN MUSTIRA, APPELLANTS,
v.
AURORA LOAN SERVICES, L.L.C., APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Trial court erred in summarily denying a motion to vacate a foreclosure judgment without holding an evidentiary hearing on allegations of insufficient service of process.
A trial court must hold an evidentiary hearing before denying a motion to vacate a judgment when the movant alleges insufficient service of process, if those allegations, if true, would invalidate service and deprive the court of personal jurisdiction.
[1] A trial court must conduct an evidentiary hearing on a motion to vacate a judgment based on insufficient service of process when the allegations, if proven true, would in…
Previewing 1 of 1 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“[A] judgment entered without service of process on the defendant is void and may be attacked at any time.”
Cited from M.L. Builders, Inc. v. Reserve Developers, LLP for the principle that judgments without proper service are void.
Appellants filed a motion to vacate a final foreclosure judgment approximately one year after entry, alleging they were never served with process and …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Void Judgment cases and more on FLexlaw
Approximately one year after entry of a final judgment of foreclosure in favor of Aurora Loan Services, L.L.C., appellants filed a sworn 1.540(b) motion to vacate the judgment, alleging that they had never been served with process and that the company that allegedly served appellants was presently under investigation for sloppy service practices. The trial court summarily denied the motion. Because the allegations of appellants’ motion, if established as true, were sufficient to entitle them to relief, the trial court erred in denying the motion without first affording appellants an evidentiary hearing. See M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 1080 (Fla. 4th DCA 2000) (“[A] judgment entered without service of process on the defendant is void and may be attacked at any time....”); Se. Termite & Pest v. Ones, 792 So.2d 1266, 1268 (Fla. 4th DCA 2001) (“[Wjhere the contents of an affidavit supporting a defendant’s contention of insufficiency of service would, if true, invalidate the purported service and nullify the court’s personal jurisdiction over the defendant, the trial court should hold an evidentiary hearing before deciding the issue.”). The ap-pellee concedes an evidentiary hearing is required.
Reversed and Remanded.
WARNER, STEVENSON and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Karletta A. Talton v. CU Members Mortg., 126 So. 3d 446 (Fla. 4th DCA 2013)…egations of the motion to quash service of process, if true, would entitle the movant to relief, then the trial court errs in denying the motion without first affording the movant an evidentiary hearing. Montes-Mustira v. Aurora Loan Servs., L.L.C., 98 So. 3d 778, 778 (Fla. 4th DCA 2012). In Montes-Mustira, as in this case, a final judgment of foreclosure was entered in favor of the lender, Aurora Loan Services. The borrowers filed a sworn motion to vacate, pursuant to Florida Rule of Civil Procedure 1.540(b…
-
Barnes v. Cap. One (15th Cir. Ct. App. Div. 2018)
-
Ho v. Fountains of Palm Beach Condo. (15th Cir. Ct. App. Div. 2014)…urt must hold an evidentiary hearing to determine the validity of service. Id. It is reversible error for the trial court to summarily deny the motion without first affording an evidentiary hearing. Id.; Montes-Mustira v. Aurora Loan Servs., L.L.C., 98 So. 3d 778 (Fla. 4th DCA 2012); Benedetto v. U.S. Bank Nat'l Ass'n, Fla. L. Weekly D2765b (Fla. 4th DCA Dec. 16, 2015) (finding that, based on the trial court's order and the lack of a hearing transcript in the record on appeal, a non-evidentiary hearing cons…
Authorities Cited
- Dorsey v. State, 769 So. 2d 1079 (Fla. 2d DCA 2000)
- Southeastern Termite AND Pest v. Aser Ones and Gladys Ones, 792 So. 2d 1266 (Fla. 4th DCA 2001)