Regions Bank v. Buoncervello
220 So. 3d 1225
| Fla. Dist. Ct. App. | 2017Background
- Regions Bank obtained a final foreclosure judgment against Becky Buoncervello in May 2010 and later sought a deficiency of $1,346,771.48 in May 2014.
- The Bank's initial summons (May 7, 2014) and an alias summons (Sept. 26, 2014) were returned unserved.
- Buoncervello moved to dismiss the deficiency action in Oct. 2015 for failure to serve within 120 days under Fla. R. Civ. P. 1.070(j).
- The Bank did not file a written response to the motion; counsel attended the dismissal hearing but no transcript is in the record.
- The trial court dismissed the complaint without prejudice in Apr. 2016.
- The appellate record contains a return of service affidavit showing Buoncervello was personally served on May 14, 2015, which she did not contest.
Issues
| Issue | Plaintiff's Argument (Bank) | Defendant's Argument (Buoncervello) | Held |
|---|---|---|---|
| Whether dismissal for failure to serve within 120 days was appropriate | Service occurred (return of service shows May 14, 2015) and dismissal was improper | Summons attempts earlier were unserved; moved to dismiss under Rule 1.070(j) | Reversed: dismissal was an abuse of discretion given unchallenged proof of service |
| Whether trial court abused discretion by not extending service time after statute of limitations concerns | Bank implied service was timely or excusable; record supported extension | Sought dismissal under the rule; did not dispute later return of service | Court emphasized broad discretion to extend time and favored extension when refiling is barred; here service was shown |
| Whether untranscribed hearing affects review | Bank lacked transcript but appellate record includes unchallenged return of service | Buoncervello relied on court's dismissal and lack of timely service | Absence of transcript did not cure the inconsistency between dismissal and the return of service; reversal required |
| Presumption of validity of return of service | Return of service presumed valid unless rebutted | Argued no valid service earlier; did not dispute the May 14, 2015 affidavit | Court applied presumption and considered the unchallenged affidavit controlling |
Key Cases Cited
- Wagner v. Strickland, 908 So. 2d 549 (Fla. 1st DCA 2005) (standard of review for dismissal for failure to timely serve)
- Roberts v. Stidham, 19 So. 3d 1155 (Fla. 5th DCA 2009) (trial court has broad discretion to extend service time)
- Bacchi v. Manna of Hernando, 743 So. 2d 34 (Fla. 5th DCA 1999) (Rule 1.070(j) is a case-management tool and courts may extend service period)
- Brown v. Ameri Star, Inc., 884 So. 2d 1065 (Fla. 2d DCA 2004) (where statute of limitations has run, dismissal that precludes refiling is ordinarily an abuse of discretion)
- Chaffin v. Jacobs, 793 So. 2d 102 (Fla. 2d DCA 2001) (Rule 1.070(j) should not be used as a severe sanction)
- Lazo v. Bill Swad Leasing Co., 548 So. 2d 1194 (Fla. 4th DCA 1989) (a facially regular return of service is presumed valid absent clear and convincing evidence to the contrary)
- Magazine v. Bedoya, 475 So. 2d 1035 (Fla. 3d DCA 1985) (presumption of validity for a return of service)