Baker v. Stearns Bank, N.A.
84 So. 3d 1122
Fla. Dist. Ct. App.2012Background
- Bank foreclosure proceedings against Baker in Oct. 2010; process server could not complete personal service; documents left at Baker's front door after failed attempt to contact a resident; Baker moved for emergency quash, vacate default, and set aside judgment prior to foreclosure sale; Baker contends a short-term houseguest, not Baker, received substituted service; Baker testified he was in Europe and not in residence during service; Saitgareev affidavit says he stayed as a houseguest with a Massachusetts address; Court held substituted service invalid and reversed to quash and set aside final judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substituted service under 48.031(l)(a) was valid when a non-resident resided at the home | Baker not residing; service valid by leave at abode | Bank shows recipient resided at abode and was informed of contents | Substituted service invalid; not residing at usual abode |
| Whether Baker provided clear and convincing evidence that substituted service was defective | Baker proved Saitgareev was not residing; houseguest status negates residence | Bank contends stay was temporary but residing enough to receive service | Baker established prima facie defect in substituted service |
| Whether Bank rebutted Baker’s evidence with sufficient competing proof | Bank failed to present longer stay or residence | No further evidence offered beyond affidavits | Bank failed to refute Baker’s evidence; service defective |
| Effect on jurisdiction and outcome of foreclosure proceedings | If service invalid, default/judgment lacks jurisdiction | Court should uphold judgment if service valid | Lack of personal jurisdiction; reverse and remand to quash and set aside judgment |
| Whether Bank’s untimeliness defense based on counsel’s special appearance has merit | Special appearance does not render appeal untimely | Untimeliness argument stands | Argument without merit; untimeliness rejected |
Key Cases Cited
- Shurman v. Atl. Mortg. & Inv. Corp., 795 So.2d 952 (Fla.2001) (notice and jurisdiction primary purposes of service)
- Walton v. Walton, 181 So.2d 715 (Fla. 2d DCA 1966) (strict construction of service statutes)
- Hilltopper Holding Corp. v. Estate of Cutchin ex rel. Engle, 955 So.2d 598 (Fla. 2d DCA 2007) (burden shifting for jurisdictional proof)
- Couts v. Md. Cas. Co., 306 So.2d 594 (Fla. 2d DCA 1975) (short-term stay not resident for substituted service)
- Gamboa v. Jones, 455 So.2d 613 (Fla. 3d DCA 1984) (short-term visitors not substitute recipients)
- Magazine v. Bedoya, 475 So.2d 1085 (Fla. 3d DCA 1985) (visitation duration factors for residency)