818 ASSET MANAGEMENT V. NEIMAN

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State: Florida

Court: Florida Third District Court

Docket No: 08-0097

Case Date: 10/28/2009

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2009
Opinion filed October 28, 2009. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D08-97 Lower Tribunal No. 07-9118 ________________

818 Asset Management, Inc.,
Appellant, vs.

Judy Neiman,
Appellee.

Appeals from the Circuit Court for Miami-Dade County, Michael A. Genden, Judge. Arthur J. Morburger, for appellant. Michael Seth Cohen, for appellee.

Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge. PER CURIAM. Affirmed. WELLS, J., and SCHWARTZ, Senior Judge, concur.

818 Asset Management, Inc., v. Judy Neiman Case No.: 3D08-97 WELLS, J., (specially concurring). I concur in the affirmance of the trial court's order denying 818 Asset Management, LLC's Rule 1.540 motion to set aside a default judgment. I find no merit to the company's claim that it had not been properly served with process, and thus conclude that no abuse of discretion has been demonstrated. See H & F Tires, L.P. v. D. Gladis Co., Inc. 981 So. 2d 647, 649 (Fla. 4th DCA 2008) ("[T]he standard of review for an order denying a motion to vacate a default judgment is abuse of discretion." (quoting Top Dollar Pawn Too, Inc. v. King, 861 So. 2d 1264, 1265 (Fla. 4th DCA 2003))). 818 is a limited liability company which pursuant to section 608.463, Florida Statutes (2007), may be served with process "[i]n accordance with chapter 48 or 49, as if [it] were a partnership." Section 48.061(2), Florida Statutes (2007), governing service of process on partnerships provides that where "service cannot be made on [a partnership] agent because of failure to maintain such an agent or because the agent cannot be found or served with the exercise of reasonable diligence, service of process may be effected by service upon the Secretary of State as agent of the limited partnership as provided for in s. 48.181." The undisputed facts pertinent to this appeal are as follows. In 2004, Judith Neiman sold her condominium to 818, taking back a promissory note in the 2

amount of $115,000 secured by a mortgage on the condominium. 818 defaulted on the note in 2006 by failing to make monthly payments, by failing to pay condominium association assessments, and by failing to pay real property taxes, a failure which resulted in issuance of tax certificates for 2004 and 2005. In February 2007, Neiman sent notices of default to 818 by certified return receipt mail to both the condominium unit purchased by 818 and the address 818 listed with the Secretary of State as the address of its registered agent. Both notices were returned as undeliverable. The following month, Neiman brought suit to collect on the note and to foreclose the securing mortgage. In April, Neiman attempted to personally serve Esther Counn

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