Foreclosure Defense Florida

Service of Process Problems Are The Next Boot To Drop- Excellent 3rd DCA Opinion

If you’re not already examining them closely, make it a habit of getting out the magnifying glass and scrutinizing all documents related to service of process.   Have a read on this new opinion and consider how we’ve just ignored one of the most important players in all of this…and particularly so in the case of defaulted defendants. What’s astonishing to me is how lax the regulation is for process serving…and how ripe the whole process is for abuse.   No rush though, there will be plenty of time to review all those constructive service affidavits, void judgments can be attacked any time…..


We all need to start thinking about the consequences of cut corners related to service of process.   Are these judgements void or merely voidable?   In the context of foreclosure, either one of the options will be terribly troubling to the new third party purchaser of the foreclosed home when the disposssed homeowner starts making claims.

647 So.2d 211

19 Fla. L. Weekly D1693

Barry BATCHIN, Appellant,

No. 93-02186.

District Court of Appeal of Florida ,
Second District.

Aug. 5, 1994.

Mr. Batchin argues that the service of process by publication in this action was defective and that the trial court could not, therefore, enter a valid judgment of foreclosure. We agree with Mr. Batchin and reverse.

625 So.2d 1219

18 Fla. L. Weekly D911

Mark H. DEMARS, Appellant,
Gaetan J. Gagne, Inc., Appellees.

No. 91-3504.

District Court of Appeal of Florida ,
Fourth District.

April 7, 1993.

On motion for rehearing we allowed the Real Property Probate and Trust Law Section of the Florida Bar to file an amicus brief addressing the question of whether a judgment is void (not merely voidable) when jurisdiction is based on a “bare bones” affidavit for constructive service. Our original opinion declared that such a judgment was void. We now conclude that we were in error. We grant rehearing and withdraw our prior opinion”¦..The affidavit itself listed only two attempts by a process server to serve appellant at the town home.


No. 4D08-4362.

District Court of Appeal of Florida , Fourth District.

April 7, 2010.

Because the Elliotts demonstrated the elements necessary to set aside the default, the trial court abused its discretion in denying their motion and subsequently entering the final judgment of foreclosure.   Accordingly, we reverse the final judgment of foreclosure and order denying the Elliotts’ motion to vacate the default.

10 So.3d 164

Jordan Joseph GUGGINO, Appellee.

No. 3D08-1199.

District Court of Appeal of Florida , Third District.

March 25, 2009.

Constructive service of process is proper only if the party cannot obtain personal service of process. See § 49.011, Fla. Stat. (2005). If the constructive service is disputed, then the trial court has the duty of determining: (1) if the affidavit of diligent search is legally sufficient; and (2) whether the plaintiff conducted an adequate search to locate the defendants. . . . .                Here, the record is clear that the affidavit of diligent search was legally sufficient and that the lender conducted an adequate search to locate the homeowner prior to constructive service. Therefore, the trial court erred in vacating the final judgment and foreclosure sale.

993 So.2d 1162

Michael HITT; MJD Group, Inc.; MJD Properties, LLC; MJD Enterprises, LLC; MJD Group, LLC; and Hitt Holdings 1, LLC, Appellants,

No. 2D08-223.

District Court of Appeal of Florida , Second District.

November 7, 2008.

[993 So.2d 1164]

In contrast to subject matter jurisdiction, a nonfinal order that determines jurisdiction over the person is appealable. Fla. R.App. P. 9.130(a)(3)(C)(i). Subsumed under the general rubric of personal jurisdiction are the issues of process and service, which are Hitt’s concerns here.. . . .                Hitt next argues that because constructive service does not confer personal jurisdiction, the trial court erred by failing to dismiss the claim for money damages in count II. We agree. “If constructive service must be used, then it confers only in rem or quasi in rem jurisdiction upon the court. A personal judgment against a defendant based upon constructive service of process would deprive a defendant of his property without due process of law.” Bedford Computer Corp. v. Graphic Press, Inc., 484 So.2d 1225, 1227 (Fla.1986);

973 So.2d 1236

Timothy D. JOHNSON, Appellant,
STATE of Florida , DEPARTMENT OF REVENUE, on behalf of Daishai D. LAMONTAGNE, Appellee.

No. 1D07-3302.

District Court of Appeal of Florida , First District.

January 24, 2008.

[973 So.2d 1237]

Although a motion to set aside a judgment must be filed “within a reasonable time,” see Fla. R. Civ. P. 1.540(b) (2007), because the mere passage of time cannot make a void judgment valid, a motion to vacate a judgment as void may “reasonably” be filed many years after the judgment was entered. . . .   . Because a judgment entered by a court lacking jurisdiction over the person of the party against whom the judgment purports to run is a legal nullity, it may be set aside as void at any time.

Dian Lewis, a/k/a Diane Lewis, a/k/a Diane Lewis, a/k/a Judith L. Bourne, a/k/a J. Dian Bourne Lewis, Appellant,
Fifth Third Mortgage Company, BVK Investments, Ltd. Appellees.

No. 3D09-294.

District Court of Appeal of Florida , Third District.

Opinion filed February 10, 2010.

The process server’s testimony along with his affidavit and return of service substantiate that Lewis did not reside at the addresses of her property where service was attempted and that she did reside at an undisclosed and unknown address in the Bahamas . Ms. Lewis never provided any of her tenants, the mortgage company, the IRS, other interested parties or business contacts, including the Florida Bar, with her current physical address.6 The evidence shows that Lewis received numerous letters from her mortgage company advising her of her default status and was notified, as of November 16, 2007, before the foreclosure was filed, that a collection attorney was in the process of filing suit. Lewis’s subsequent correspondence in response to that very letter provided substantial competent evidence from which the trial judge could correctly conclude that Lewis had notification that she was being foreclosed upon. She even admits in the affidavit she filed in support of her motion to vacate that she received the letter, yet she proceeded to negotiate with her mortgagor through email and P.O. Box number, contending now that, although no one had her Bahamian address, she would have given it to her mortgage company and collection firm had they asked for it.

1 So.3d 1278

John W. MILLER, Appellant,
Jay PREEFER, Richard Preefer, Jay L. Starr, Compromised Management, Inc., Palm Beach Ale House and Raw Bar, Inc., Appellees.

No. 4D07-2930.

District Court of Appeal of Florida , Fourth District.

February 18, 2009.

[1 So.3d 1279]

When it did, the settlement agreement, even though it contained an illegal covenant restraining trade, essentially became sheltered within the judgment. To undo the settlement agreement, or even just the covenant not to compete recited within it, Miller was required to undo the judgment itself. However, because

[1 So.3d 1283]

the trial court had jurisdiction over the subject matter of the 1992 litigation and personal jurisdiction over the parties, the inclusion of an illegal or void provision in the settlement agreement resolving that litigation does not render the final judgment incorporating that settlement agreement void per se; such a judgment is merely voidable.

NB:   The motion was filed THIRTEEN YEARS after judgment was entered.

968 So.2d 658

U.S. BANK NATIONAL ASSOCIATION; Dean N. Meyers, a/k/a Dean Meyerson, a/k/a Dean Meyer; Deborah C. Meyers; Daniel W. Nester; and United States of America, Department of the Treasury-Internal Revenue, Appellees.

No. 2D06-3762.

District Court of Appeal of Florida , Second District.

November 2, 2007.

[968 So.2d 660]

To the extent that the trial court ruled it had no jurisdiction to set aside the foreclosure judgment once the sale occurred based upon its interpretation of section 702.07, Florida Statutes (2005), the trial court erred. . . .                We therefore conclude that section 702.07 cannot be interpreted as depriving a circuit court of jurisdiction to set aside or reconsider a foreclosure judgment upon a proper motion once a foreclosure sale has been held. . . .                Although the case law on the void/voidable distinction could draw clearer lines, generally so long as a court has jurisdiction over the subject matter and a party, a procedural defect occurring before the entry of a judgment does not render a judgment void. See, e.g., Demars v. Village of Sandalwood Lakes Homeowners Ass’n, 625 So.2d 1219 (Fla. 4th DCA 1993) (concluding that plaintiff’s failure to allege sufficient facts supporting diligent search to permit constructive service did not make subsequent default judgment entered upon such service void, but rather voidable on presentation of proof that a diligent search was not made); . . . Procedural defects not affecting jurisdiction must be addressed by a timely motion for rehearing, an appeal, or a timely motion for relief from judgment pursuant to rule 1.540(b)(1), (2), or (3).

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