Frank Romeo and Connie Yang v. US Bank National Association
144 So. 3d 585
| Fla. Dist. Ct. App. | 2014Background
- Appellants Frank Romeo and Connie Yang appeal a non-final order denying their motion to quash service of process.
- US Bank National Association filed a verified foreclosure complaint; alias summonses were issued September 12, 2013.
- Affidavits of service claimed service occurred September 16, 2013, with service on September 16.
- Affidavits claim the process server received the summonses on September 10, two days before issuance.
- Lena Romeo, stated as Frank’s wife, is actually Frank’s mother and not residing at the residence; Connie Yang is Frank’s wife.
- The trial court denied the motion to quash; the issue on appeal is whether service was regular on its face and thus valid.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether affidavits of service are regular on their face. | US Bank: affidavits are presumed valid if regular on face. | Appellants: affidavits are defective on their face (dates before issuance; Lena is mother, not wife). | Affidavits defective on their face; service must be quashed. |
| Whether substitute service on a spouse was properly effected given the facts. | US Bank contends substitute service on the spouse complies with statute. | Lena is not Frank's spouse and not residing there; service improper. | Substitute service improper; service cannot be valid based on these affidavits. |
| Who bears the burden to prove valid service when affidavits are defective on their face. | Bank bears burden to prove valid service. | Defendants argue service cannot be presumed valid. | Burden shifts to Bank to prove valid service; here it did not. |
Key Cases Cited
- Sunseeker Int’l Ltd. v. Devers, 50 So. 3d 715 (Fla. 4th DCA 2010) (strict construction of service rules; burden on plaintiff to prove proper service)
- Brown v. U.S. Bank Nat’l Ass’n, 117 So. 3d 823 (Fla. 4th DCA 2013) (defective face of service requires quashing)
- Re-Employment Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So. 2d 467 (Fla. 5th DCA 2007) (return of service defective on its face cannot presume validity)
- Vives v. Wells Fargo Bank, N.A., 128 So. 3d 9 (Fla. 3d DCA 2012) (defective on its face defeats presumption of validity; burden on plaintiff)
- Thompson v. Dep’t of Revenue, 867 So. 2d 603 (Fla. 1st DCA 2004) (service defective on face based on facts in affidavits)
- Koster v. Sullivan, 103 So. 3d 882 (Fla. 2d DCA 2012) (regular-on-face inquiry governed by 48.21; not requiring close reference to all service statutes)
- Gonzalez v. Totalbank, 472 So. 2d 861 (Fla. 3d DCA 1985) (discussion of service deficiencies and face-of-record implications)