FL 3rd DCA Pro-Vest Sewer Service REVERSED
Third District Court of Appeal
State of Florida, July Term, A.D. 2010
Opinion filed December 1, 2010.
Not final until disposition of timely filed motion for rehearing.
Lower Tribunal No. 08-71936
Christiana Bank & Trust Company, etc.,
A Pro-Vest employee, filed a verified return of service on December 29, 2008. The return indicated that individual service was accomplished on December 20 at 4:13 p.m. The return further indicated that “DEFENDANT REFUSED TO DISCLOSE MILITARY STATUS; PROPERTY IS NOT A MOBILE HOME. I asked the person spoken to if the person served is married and I received a negative reply.”
However, the front and reverse sides of the summons attached to the return were covered with the process server’s notes. These notes reflected the server’s attempts to serve Ms. Bennett at her house to no avail. The notes disclosed that on two occasions he left “cc” of the summons and complaint in the mailbox at the home. Finally, after several more attempts, on December 20, the process server wrote that he left the papers at the door. His notation for that date states: “12/20/08 – 4:13pm Saw Curtains Move, Read Aloud Docs, SVP Docs at Door.”
The return does not identify the name or age of any individual supposedly served or identified within the premises. The time, however, is precisely the time identified on the face of the return of service.
Ms. Bennett stated in her affidavit that she had undergone surgery the day after Thanksgiving and was convalescing at her mother’s home the next six weeks.
On September 2, Ms. Bennett, through counsel, filed a motion to vacate the judgment and to stay the foreclosure sale. The trial court denied the motion to stay the sale, but granted Ms. Bennett a hearing on the motion to vacate. Ms. Bennett filed an affidavit to support her motions asserting that the only notice she had of the foreclosure was the copy of the final foreclosure judgment received by mail at her home on August 20, 2009.
After the hearing, the court entered an order finding that the service was “questionable,” but that there was no meritorious defense to the foreclosure. The court denied the motion to vacate. This appeal followed.
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