JUDY ANN JEAN KEETER, APPELLANT,
v.
THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE ON BEHALF OF THE HOLDERS OF THE ALTERNATIVE LOAN TRUST 2006-0A11, MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-0A11 AND UNKNOWN TENANT IN POSSESSION OF THE SUBJECT PROPERTY, APPELLEE
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A Florida appellate court reversed a foreclosure judgment against a borrower, holding that filing a motion for extension of time to respond does not constitute waiver of service of process defects. The court remanded for the trial court to determine proper procedure given the subsequent service by publication.
Filing a motion for enlargement of time that does not go to the merits of the case does not constitute active participation in the proceedings and therefore does not result in submission to the court's jurisdiction or waiver of objections to service of process. The trial court erred in finding a waiver based on this procedural motion alone.
[1] A motion for an extension of time to respond to a complaint does not constitute an appearance in the case or waive objections to service of process.
[2] Filing a motion for enlargement of time that does not address the merits of the case is not active participation in proceedings and does not waive objections to service o…
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Join FLexlaw to unlock all legal intelligence“a motion for enlargement of time that does not go to the merits of the case is not 'active participation' in the proceedings, and therefore, does not constitute submission to the court's jurisdiction and waiver of any objection to service of process”
Establishes the controlling legal standard that procedural motions for extension of time do not waive service defects
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Join FLexlaw to unlock all legal intelligenceAppellant Keeter was the borrower in a foreclosure case brought by Bank of New York Mellon as trustee. When served with the foreclosure complaint, Kee…
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In this foreclosure case, the trial court determined that Appellant, the borrower, waived any objection to the service of process when she “made an appearance” in the case by filing a motion for an extension of time to respond to the complaint. This was error. See Yelton v. Wells Fargo Bank, N.A., 146 So.3d 1207 (Fla. 1st DCA 2014) (reversing order denying borrower’s motion to quash service in a foreclosure case and holding that “a motion for enlargement of time that does not go to the merits of the case is not ‘active participation’ in the proceedings, and therefore, *860does not constitute submission to the court’s jurisdiction and waiver of any objection to service of process”)(citing DiGiovanni v. BAC Home Loans Serv., L.P., 83 So.3d 934, 935-36 (Fla. 2d DCA 2012); Byers v. FIA Card Services, N.A., 82 So.3d 1166, 1167-68 (Fla. 4th DCA 2012); and Barrios v. Sunshine State Bank, 456 So.2d 590, 590-91 (Fla. 3d DCA 1984)); see also Benedetto v. U.S. Bank Nat’l Ass’n, 181 So.3d 564, 567 (Fla. 4th DCA 2015) (“Where a defendant files a motion for extension of time to answer a complaint, the defendant does not submit to the jurisdiction of the court or waive the defense of lack of jurisdiction for failure of service of process.”). Accordingly, without reaching the other issues raised by the borrower, we reverse the final judgment and remand for further proceedings. We leave it to the trial court to determine how best to proceed on remand in light of the post-trial service by publication effectuated by Appellee based on the borrower’s alleged avoidance of personal service.
REVERSED and REMANDED.
LEWIS, WETHERELL, and JAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Eligio Barrios v. Sunshine State Bank, 456 So. 2d 590 (Fla. 3d DCA 1984)
- DiGIOVANNI v. BAC Home Loans Servicing, L.P., 83 So. 3d 934 (Fla. 2d DCA 2012)
- Byers v. FIA Card Servs., N.A., 82 So. 3d 1166 (Fla. 4th DCA 2012)
- Benedetto v. U.S. Bank Nat'l Ass'n, 181 So. 3d 564 (Fla. 4th DCA 2015)
- Yelton v. Wells Fargo Bank, N.A., 146 So. 3d 1207 (Fla. 1st DCA 2014)