EAST COAST RECOVERY, INC.
v.
PATRICIA HOLMES, A/K/A PATRICIA HEVIA
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A return of service that is regular on its face under the statute in effect at the time of service creates a presumption of valid service, which the challenging party must overcome by clear and convincing evidence; the trial court erred in applying a later statutory version requiring a signature when the 2006 statute contained no such requirement.
[1] A return of service that contains all elements required by the statute in effect at the time of service is regular on its face and creates a presumption of valid service,…
[2] When a return of service is regular on its face, the party challenging service bears the burden of overcoming the presumption of valid service by presenting clear and con…
Previewing 2 of 5 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“If the return is regular on its face, then the service of process is presumed to be valid and the party challenging service has the burden of overcoming that presumption by clear and convincing evidence.”
Establishes the burden-shifting framework: a facially valid return creates a presumption that the challenging party must rebut with clear and convincing evidence.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEast Coast Recovery obtained a default judgment against Patricia Holmes in 2006 for credit card default based on a return of service dated January 24,…
The full statement of facts, procedural history, and disposition for this case are member content.
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Third District Court of Appeal State of Florida
Opinion filed August 20, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-2024 Lower Tribunal No. 05-26630-CC-23 ________________
East Coast Recovery, Inc., Appellant,
vs.
Patricia Holmes, a/k/a Patricia Hevia, Appellee.
An Appeal from a non-final order from the County Court for Miami- Dade County, Linda Singer Stein, Judge.
Shafritz and Associates, PA, and Hugh Shafritz, and Aaron F. Miller (Delray Beach), for appellant.
Patricia V. Hevia Holmes, in proper person.
Before SCALES, C.J., and LOBREE and GOODEN, JJ.
GOODEN, J.
2
Appellant East Coast Recovery, Inc. appeals an order granting a motion to vacate a default judgment under Florida Rule of Civil Procedure 1.540. Because we find that the trial court applied the wrong version of the statute and Holmes did not present clear and convincing evidence that she was not served, we reverse and remand.
I.
In 2005, East Coast Recovery filed suit against Appellee Patricia Holmes for defaulting on a credit card. The lower court progress docket reflects service was returned on January 24, 2006. But Holmes did not respond to the lawsuit. Consequently, the trial court entered default final judgment. At some point, the court file was destroyed due to its age.
Seven years later, the judgment still had not been satisfied. In aid of execution, East Coast Recovery served written discovery on Holmes. Receiving no response, the trial court ordered Holmes to respond within thirty days. Holmes again failed to respond. East Coast Recovery moved for an order to show cause. The trial court ordered Holmes to appear. Holmes was served with the order by a process server.
In February 2015, Holmes moved to stay post-judgment discovery. In that motion, she fully recognized that a final judgment had been entered against her. She also filed a suggestion of bankruptcy. The bankruptcy was eventually dismissed. Nine years later, garnishment proceedings were launched. Holmes’ banking institution was served with a writ of garnishment for the debt. Funds were garnished from Holmes’ account.
Holmes then moved to vacate the default judgment asserting it was void. For the first time, she alleged that she was not personally served and was not given notice of the proceedings. She claimed that she first learned of the judgment after the bank garnished her bank account.
East Coast Recovery responded: (1) Holmes failed to rebut the presumption that she was properly served; (2) the return of service shows Holmes was personally served; and (3) Holmes’ post-judgment participation
1 We have not been provided with a copy of the transcript from this hearing. As a result, we do not know what Holmes argued.
Due to the allegations, the trial court conducted an evidentiary hearing. Holmes focused on the fact the return was not signed. She testified she does not remember being served. Holmes’ son, who was a teenager at the time, testified that “[t]here is no way that . . . that [the 2006] service occurred. It simply did not occur. . . . [T]here is no way that someone came to our house at 9:00 p.m. at night on that date and that I wouldn’t know about it.” East Coast Recovery countered that the return of service was regular on its face, and therefore, the presumption applies. It maintained that Holmes did not meet her burden to overcome the presumption.
The trial court granted the motion and vacated the judgment. Analyzing the statute in effect at the time of the hearing, it found that the return of service was defective on its face because it did not have a signature. It then ruled that East Coast Recovery failed to show that Holmes was validly served and that it did not present any testimony or evidence to rebut Holmes’ claim she was not. This appeal followed.
5
II.
Generally, an order granting a Rule 1.540 motion is reviewed for an abuse of discretion. Rinconcito Latino Cafeteria, Inc. v. Ocampos, 276 So. 3d 525, 527 (Fla. 3d DCA 2019). But where the motion asserts that the judgment is void, we review the trial court’s legal determination de novo. First Call 24/7, Inc. v. Rios, 373 So. 3d 1176, 1178 (Fla. 3d DCA 2022); Nationstar Mortg., LLC v. Diaz, 227 So. 3d 726, 729 (Fla. 3d DCA 2017).
III.
The Florida Constitution mandates that “[n]o person shall be deprived of life, liberty or property without due process of law.” Art. I, § 9, Fla. Const. To ensure due process, the court “must have jurisdiction of the subject matter and of the persons affected. A defect in the jurisdiction of the court may render its proceedings void.” Standley v. Arnow, 13 Fla. 361, 366 (Fla. 1869). “The return of service is the instrument a court relies on to determine whether jurisdiction over an individual has been established.” Koster v. Sullivan, 160 So. 3d 385, 388 (Fla. 2015). “If the return is regular on its face, it serves ‘as a virtual basis for the Court to assume that it has lawfully obtained jurisdiction over the person of the defendant’ for the purpose of entering judgment by default against such defendant.” Klosenski v. Flaherty, 116 So. 2d 767, 769 (Fla. 1959) (internal citation omitted).
§ 48.21, Fla. Stat. (2006).
This plain text only requires the return to contain: (1) the date and time when the complaint comes to hand or is received by the process server; (2) the date and time when it is served; (3) the manner in which it served; and (4) the name of the person on whom it was served and the position of the person, if served if their representative capacity. Id. See also Koster, 160 So. 3d at 389.
The trial court, however, required the return to be signed. But the 2006 statute simply does not require a signature to be valid. Indeed, the Legislature added the signature requirement in 2011—five years after Holmes was served with process. See Ch. 11-159, Laws of Fla.
To this end, the attorney’s copy of the return of service readily meets the 2006 statute’s requirements. It is facially valid and regular. And so, there is a presumption that service was valid. Holmes was required to overcome that presumption by clear and convincing evidence. Koster, 160 So. 3d at 389. Based on the record before this Court, Holmes failed to do so. She
Reversed and remanded with instructions.
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- Klosenski v. Flaherty, 116 So. 2d 767 (Fla. 1959)
- Re-Employment Servs., Ltd. v. Nat'l Loan Acquisitions Co., 969 So. 2d 467 (Fla. 5th DCA 2007)
- Gonzalez v. Totalbank, 472 So. 2d 861 (Fla. 3d DCA 1985)
- Telf Corp. v. Ivon Gomez, 671 So. 2d 818 (Fla. 3d DCA 1996)
- Koster v. Sullivan, 160 So. 3d 385 (Fla. 2015)
- Penelope L. Standley v. Arnow, 13 Fla. 361 (Fla. 1869)
- Nationstar Mortg., LLC v. Diaz, 227 So. 3d 726 (Fla. 3d DCA 2017)