Opella v. Bayview Loan Servicing, LLC
48 So. 3d 185
| Fla. Dist. Ct. App. | 2010Background
- On Nov. 20, 2006, 21 NW 59th Street, Inc. executed a note and mortgage securing the commercial property; Opella signed as an officer/director and personally guaranteed the note.
- Bayview presently holds the mortgage and note.
- Feb. 17, 2009, Bayview sued 21 NW 59th Street, Inc., Opella, and others to collect on the note and foreclose; Bayview attempted to serve Opella but failed.
- Bayview moved for summary judgment against both defendants, asserting service of process was properly perfected on the defendants.
- A final summary judgment of foreclosure was entered, stating service of process was duly and regularly obtained over 21 NW 59th Street, Inc. and Steven R. Opella.
- Opella, proceeding pro se, appealed, arguing lack of service; the court held Opella was not served and did not waive service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judgment is void for lack of service on Opella | Bayview contends service was perfected on the defendants. | Opella asserts he was never served and did not waive service. | Judgment void for lack of service on Opella |
| Whether Opella waived service by appearance or filing | Bayview argues pro se answer implied waiver. | Opella did not appear or waive service; no proper pro se answer was filed. | No waiver; no valid appearance to waive service |
| Whether Bayview’s conduct with a purported pro se answer affected jurisdiction | Purported answer was filed by Bayview’s counsel without authority. | No genuine answer from Opella or 21 NW 59th Street, Inc.; no jurisdictional waiver. | No effect; defense of service remains unwaived |
Key Cases Cited
- M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079 (Fla. 4th DCA 2000) (judgment entered without service is void)
- Del Conte Enters., Inc. v. Thomas Publ’g Co., 711 So.2d 1268 (Fla. 3d DCA 1998) (void for lack of service)
- Johnson v. State, Dep’t of Revenue ex rel. Lamontagne, 973 So.2d 1236 (Fla. 1st DCA 2008) (jurisdictional voidness of judgment without service)
- Caldwell v. Caldwell, 921 So.2d 759 (Fla. 1st DCA 2006) (general appearance may waive service deficiencies)
- Solmo v. Friedman, 909 So.2d 560 (Fla. 4th DCA 2005) (participation in proceedings can waive objections to jurisdiction)
- Lennar Homes, Inc. v. Gabb Constr. Servs., Inc., 654 So.2d 649 (Fla. 3d DCA 1995) (failure to contest service at inception constitutes waiver)
- Parra v. Raskin, 647 So.2d 1010 (Fla. 3d DCA 1994) (waiver by failing to timely object to service)
- Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So.2d 247 (Fla. 3d DCA 1985) (corporation cannot appear without counsel)
- Bussey v. Legislative Auditing Comm. of Legislature, 298 So.2d 219 (Fla. 1st DCA 1974) (jurisdictional indispensability of service)