David Davidian and Irma Davidian v. JP Morgan Chase Bank, National Association
178 So. 3d 45
Fla. Dist. Ct. App.2015Background
- Irma and David Davidian executed a mortgage in 2007; JP Morgan Chase filed a foreclosure complaint in 2013 after alleged default.
- Certified process server Timothy Toomey filed returns of service stating both Davidians were personally served on June 25, 2013, with descriptions and a penalty-of-perjury verification.
- The Davidians moved to quash the summons and service of process, asserting multiple defects (hearsay, statutory noncompliance, inaccuracy, failure to inform of contents).
- The trial court held an evidentiary hearing (including Toomey’s testimony) and denied the motions to quash; the Davidians appealed the nonfinal order.
- The Fourth District affirmed, finding the returns regular on their face, admissible under hearsay exceptions, and supported by substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of returns of service (hearsay) | Returns are inadmissible hearsay | Admissible under public records and business records exceptions; Toomey testified to regular practice | Admissible; trial court did not err |
| Compliance with §48.21 and §48.031 formalities | No evidence returns complied with statutory form requirements | Returns contained required dates/times/manner/identification and summons showed server initials | Returns complied with statutes; regular on face |
| Presumption of valid service / burden of proof | Returns not regular; Davidians presented affidavits denying presence | Regular returns create presumption of valid service; Davidians must overcome with clear and convincing evidence | Returns were regular; Davidians failed to overcome presumption |
| Requirement to inform served person of contents under §48.031(1)(a) | Server failed to orally inform them of the contents | Statute’s oral-notification requirement applies to substitute service; returns and server testimony state he informed them | Court accepted server testimony/return; Davidians’ claim rejected |
Key Cases Cited
- Bank of Am., N.A. v. Bornstein, 39 So. 3d 500 (Fla. 4th DCA) (regular-on-face return creates presumption of valid service)
- Re-Employment Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So. 2d 467 (Fla. 5th DCA) (burden to overcome regular return presumption)
- Cordova v. State, 675 So. 2d 632 (Fla. 3d DCA) (returns of service admissible under public records exception)
- Romeo v. U.S. Bank Nat’l Ass’n, 144 So. 3d 585 (Fla. 4th DCA) (affidavits not regular on face if internally inconsistent/inaccurate)
- Vidal v. SunTrust Bank, 41 So. 3d 401 (Fla. 4th DCA) (statutory requirement to inform recipient of contents when served by substitute service)