THE ESTATE OF RUTH TORRES,
v.
U.S. BANK, N.A., ETC.,
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Evidence consisting of the personal representative's self-serving denial of service and a neighbor's vague account of an unknown person at the property is insufficient as a matter of law to invalidate a facially valid return of service.
[1] Where a defendant's evidence challenging service of process consists of self-serving denials and vague third-party accounts insufficient to impeach a facially valid retur…
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“[W]here the allegations of the motion to quash service of process, if true, would entitle the movant to relief.”
Statement of the general rule that a party contesting service of process is ordinarily entitled to an evidentiary hearing, citing Talton v. CU Members Mortg.
The Estate of Ruth Torres was sued in foreclosure by U.S. Bank, N.A. The personal representative claimed she did not see or speak to the process serve…
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Third District Court of Appeal State of Florida
Opinion filed May 25, 2022. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-1334 Lower Tribunal No. 10-35457 ________________
The Estate of Ruth Torres, Appellant,
vs. U.S. Bank, N.A., etc., Appellee.
An appeal from a non-final order from the Circuit Court for Miami-Dade County, Antonio Arzola, Judge.
Troy Nader (Flushing, NY), for appellant.
McGuireWoods LLP, and Sara F. Holladay, and Emily Y. Rottmann, and Kathleen D. Kilbride (Jacksonville), for appellee.
Before FERNANDEZ, C.J., and EMAS, and MILLER, JJ.
MILLER, J.
Appellant, the Estate of Ruth Torres, appeals an order denying a motion to quash service in a foreclosure lawsuit filed by appellee, U.S. Bank, N.A. On appeal, the Estate contends the trial court erred in failing to conduct an evidentiary hearing. Ordinarily, a party contesting service of process is entitled to an evidentiary hearing, even in the absence of a request for the same, “[w]here the allegations of the motion to quash service of process, if true, would entitle the movant to relief.” Talton v. CU Members Mortg., 126 So. 3d 446, 447 (Fla. 4th DCA 2013); see Travelers Ins. Co. v. Davis, 371 So. 2d 702, 703 (Fla. 3d DCA 1979); Lilly v. Bank of Am., N.A., 267 So. 3d 452, 452 (Fla. 4th DCA 2019). Here, however, the sum of the evidence submitted by way of affidavit to the trial court as clear and convincing consisted of self-serving allegations by the personal representative that she did not see or speak to the process server, and she discovered the process documents in her mailbox. Although she contends this testimony was corroborated by a neighbor, the neighbor’s affidavit falls short of any such conclusion. Instead, the neighbor’s affidavit merely indicates that, on the morning service was supposedly effectuated, an unknown person banged on the neighbor’s windows and then drove away. This showing was substantially weaker than that found to be insufficient as a matter of law to impeach the return of service in several decisions, including Slomowitz v.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Slomowitz v. E.O. Walker and Geneva Walker, 429 So. 2d 797 (Fla. 4th DCA 1983)
- Telf Corp. v. Ivon Gomez, 671 So. 2d 818 (Fla. 3d DCA 1996)
- Fla. Nat'l Bank v. Leyda Halphen, 641 So. 2d 495 (Fla. 3d DCA 1994)
- NEW Port Largo, Inc. v. Mary Anne Munz and substitute trustee, 498 So. 2d 450 (Fla. 3d DCA 1986)