Vives v. Wells Fargo Bank, N.A.
2012 Fla. App. LEXIS 10393
| Fla. Dist. Ct. App. | 2012Background
- Foreclosure action filed March 4, 2009 by Wells Fargo against Ms. Vives (Count I: re-establish promissory note; Count II: foreclose mortgage).
- Process server left copies with an unnamed adult at Ms. Vives’s home on March 19, 2009; return described unnamed person as brown-haired woman 35–49, etc. (Ms. Vives is 31, blonde, different physical description).
- Ms. Vives did not respond; Wells Fargo moved for summary final judgment of foreclosure (May 28, 2009).
- Wells Fargo filed documents later including original note and mortgage; a letter purported to be Ms. Vives’s “Pro Se Answer” was filed by Wells Fargo from a Kahane & Associates employee.
- Judgment: Final Judgment of Foreclosure entered December 2, 2010; sale set for January 21, 2011; sale postponed after service questions; sale occurred May 2, 2011.
- Ms. Vives moved to vacate the final judgment and cancel sale; argued lack of service and lack of personal jurisdiction; remand ordered with instructions to assess service validity on evidence on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service of process was valid and obtained personal jurisdiction | Vives did not receive proper service; return defective | Wells Fargo proved service or Ms. Vives waived defenses by appearance | Remanded for evidentiary showings on service validity; if not proven, vacate judgment. |
| Whether Wells Fargo waived lack of service by filing a pro se letter as an answer | Letter not an answer; no waiver | Letter purported as pro se answer valid for waiver | Letter not an answer; no waiver; burden shifts on remand to prove valid service. |
| Whether the process server’s return was regular on its face | Return appears regular; service presumed valid | Return defective on its face for missing required details | Return defective; burden shifts to Wells Fargo to prove valid service on remand. |
| Remand instructions addressing potential vacatur of judgment | If service invalid, vacate final judgment | Judgment may stand if service eventually proven | Remanded with instructions to determine validity of service and vacate if necessary. |
Key Cases Cited
- Opella v. Bayview Loan Servicing, LLC, 48 So.3d 185 (Fla. 3d DCA 2010) (pro se letter not an answer; requires proper pleading)
- Bennett v. Christiana Bank & Trust Co., 50 So.3d 43 (Fla. 3d DCA 2010) (strict construction of service of process; regular-on-face rule)
- Re-Employment Sens., Ltd. v. Nat’l Loan Acquisitions Co., 969 So.2d 467 (Fla. 5th DCA 2007) (if return is defective, burden shifts to party asserting service)
- Gonzalez v. Totalbank, 472 So.2d 861 (Fla. 3d DCA 1985) (return defects affect validity of service)