Bevilacqua v. U.S. Bank, N.A.
194 So. 3d 461
| Fla. Dist. Ct. App. | 2016Background
- U.S. Bank sued Bevilacqua in 2009 in Florida for foreclosure; a default final judgment was entered after he did not initially respond.
- Bevilacqua later moved to vacate the default, alleging he lived in Italy and had not been served; the trial court vacated the default and ordered service in Italy.
- The Florida court appointed an international process server who submitted documents to the Court of Appeals of Rome (Italy’s Hague Convention Central Authority).
- The Italian Central Authority returned a certificate stating service was effected under Italian law (Article 140) after posting notice at the residence, filing with the town hall, and mailing by registered letter.
- Bevilacqua moved to quash/dismiss, arguing Article 140 service was improper because Articles 138–139 (other attempts) were not tried; he also submitted an affidavit denying receipt of any papers.
- The trial court denied the motion to quash; the appellate court affirmed, holding the Central Authority’s certificate is prima facie evidence of proper service and Bevilacqua failed to show lack of actual notice or prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hague Convention Central Authority certificate is prima facie evidence of valid service | Bevilacqua: Italian service was defective under Article 140 and Articles 138–139 were not attempted | U.S. Bank: The Central Authority’s certificate and the process server’s return show service complied with Italian law and the Hague Convention | Held: Certificate is prima facie evidence; court will not look beyond it absent proof of lack of notice or prejudice |
| Whether service comported with Italian law (Article 140 requirement vs. prior attempts under Articles 138–139) | Bevilacqua: Article 140 is only available after attempts under Articles 138–139, which were not made | U.S. Bank: Process server attempted personal service and, when unsuccessful, used Article 140 methods as allowed | Held: Court accepted Central Authority attestation; did not reexamine underlying Italian procedural sequence |
| Whether Bevilacqua rebutted the prima facie showing by lack of actual notice or prejudice | Bevilacqua: Affidavit denying receipt and asserting no attempts via callbox/neighbors | U.S. Bank: Bevilacqua had actual knowledge (had previously appeared and obtained vacatur of default) and failed to show prejudice | Held: Bevilacqua failed to show lack of actual notice or prejudice; prima facie evidence stands |
| Appealability of denial of motion to dismiss for failure to serve within Rule 1.070(j) time limits | Bevilacqua: also sought dismissal under Rule 1.070(j) for failure to timely serve | U.S. Bank: argued order was not appealable | Held: That portion of the appeal was dismissed for lack of jurisdiction because such denials are nonfinal nonappealable orders |
Key Cases Cited
- Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So. 3d 177 (Fla. 3d DCA 2011) (procedural law decisions cited by court)
- Koechli v. BIP Intern., Inc., 861 So. 2d 501 (Fla. 1st DCA 2003) (Central Authority certificate is prima facie evidence of service)
- Semet Lickstein Morgenstern Berger Friend & Gordon, P.A. v. Sawada, 643 So. 2d 1188 (Fla. 3d DCA 1994) (declining to impose requirements beyond Hague return)
- Northrup King Co. v. Compania Productora Semillas Algodoneras Selectas, S.A., 51 F.3d 1383 (8th Cir. 1995) (Central Authority certification precludes looking beyond compliance with state law)
- MacIvor v. Volvo Penta of Am., Inc., 471 So. 2d 187 (Fla. 3d DCA 1985) (Supremacy Clause bars state requirements beyond Hague)
- Alvarado-Fernandez v. Mazoff, 151 So. 3d 8 (Fla. 4th DCA 2014) (Hague Convention is federal law of the land)
- Nat’l Powerboat Ass’n, Inc. v. Calabro, 652 So. 2d 508 (Fla. 3d DCA 1995) (order denying dismissal under rule 1.070(j) is nonfinal, nonappealable)