ROY L. LILLY
v.
BANK OF AMERICA, N.A.
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The Fourth District Court of Appeal reversed the circuit court's denial of a motion to quash service of process and remanded for an evidentiary hearing. The appellant challenged service of process on the grounds that the process server failed to comply with Florida statutory requirements.
The court held that a defendant is entitled to an evidentiary hearing on a motion to quash service of process when the motion and accompanying affidavit, if proven by clear and convincing evidence, would demonstrate that the plaintiff failed to effect valid service. The circuit court erred by denying the motion without holding such a hearing.
[1] When a motion to quash service of process and accompanying affidavit facially challenge a process server's compliance with statutory service requirements, the defendant i…
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Join FLexlaw to unlock all legal intelligence“When a process server fails to strictly comply with [statutes governing service of process], service must be quashed.”
The court cited Romeo v. U.S. Bank Nat'l Ass'n and Brown v. U.S. Bank Nat'l Ass'n to establish the strict compliance standard for service of process.
The appellant filed a motion to quash service of process with an accompanying affidavit challenging the process server's compliance with Florida Statu…
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Appeal of a non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No. CACE 16-011132 (11).
Michele K. Feinzig of Law Offices of Robin Bresky, Boca Raton, for appellant.
Mary J. Walter of Liebler Gonzalez & Portuondo, Miami, for appellee. PER CURIAM. We reverse the circuit court’s denial of appellant’s motion to quash service of process and remand for an evidentiary hearing on the motion. The circuit court failed to set an evidentiary hearing on appellant’s facially sufficient motion to quash service of process. A defendant is entitled to an evidentiary hearing on a motion to quash service of process if the motion and accompanying affidavit, if proven by clear and convincing evidence, would show that the plaintiff failed to effect valid service. Linville v. Home Sav. of Am., FSB, 629 So. 2d 295, 296 (Fla. 4th DCA 1993). Appellant’s motion to quash and accompanying affidavit adequately challenged the process server’s failure to comply with section 48.031, Florida Statutes (2015). See Nirk v. Bank of Am., N.A., 94 So. 3d 658, 659-660 (Fla. 4th DCA 2012) (holding that section 48.031(5), Florida Statutes (2010) required the information to appear on the copy of the summons); see also Romeo v. U.S. Bank Nat’l Ass’n, 144 So. 3d 585, 586 (Fla. 4th DCA 2014) (“When a process server fails to strictly comply with [statutes governing service of process], service must be quashed.” (quoting Brown v. U.S. Bank Nat’l Ass’n, 117 So. 3d 823, 824 (Fla. 4th DCA 2013))).
Reversed and remanded. GROSS, DAMOORGIAN and CIKLIN, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.
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Citator
Cited By
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Meredyth Capasso v. Buchanan (Fla. 4th DCA 2024)
Authorities Cited
- Chi Luu Linville v. Home Sav. OF Am., FSB, 629 So. 2d 295 (Fla. 4th DCA 1993)
- Brown v. U.S. Bank Nat'l Ass'n for the Structured Asset Inv. Loan Tr., 117 So. 3d 823 (Fla. 4th DCA 2013)
- Mardie Holloway v. Tangan Holloway, 117 So. 3d 823 (Fla. 4th DCA 2013)
- Romeo v. U.S. Bank Nat'l Ass'n For BNC Mortg. Loan Tr. 2007-2, 144 So. 3d 585 (Fla. 4th DCA 2014)
- Nirk v. Bank OF Am., N.A., 94 So. 3d 658 (Fla. 4th DCA 2012)