5D10-3547 Palm Bay v. First Bank

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D10-3547

Case Date: 01/30/2012

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2012

PALM BAY 17, LLC, Appellant, v. FIRST BANK OF PUERTO RICO, ETC., ET AL., Appellees. ________________________________/ Opinion filed February 3, 2012 Appeal from the Circuit Court for Brevard County, Robert Wohn, Jr., Judge. Regen J. Shanzer and Joseph L. Rebak, P.A., of Tew Cardenas LLP, Miami, for Appellant. No Appearance for Appellee. Case No. 5D10-3547

EVANDER, J. Palm Bay 17, LLC ("Palm") appeals from a final judgment of foreclosure, contending that the trial court erred in determining that First Bank of Puerto Rico ("First Bank") had properly effected service of process on Palm. We conclude that the

statutory conditions for mailbox service upon Palm were not met and, accordingly, reverse. First Bank filed a verified complaint alleging, inter alia, that Palm, a Florida corporation, had defaulted on its mortgage with First Bank by failing to make its monthly

payments.

Palm's registered agent was Julio Quintana.

Florida's Division of

Corporation's website listed a private mailbox at a United Parcel Service (UPS) store located in Miami Lakes, Florida, as Quintana's address. First Bank purported to effect service on Palm by having a copy of the summons and complaint delivered to the manager of the UPS store. Subsequently, pursuant to section 702.10, Florida Statutes (2009),1 First Bank filed an Ex Parte Motion for an Order to Show Cause for the Entry of a Foreclosure Judgment Against Commercial Real Property. Palm responded to the verified complaint and the ex parte motion by filing a Motion to Quash Service of Process and an Amended Motion to Quash Service of Process. In these motions, Palm argued that its registered agent had a physical address discoverable through Florida's public records and, therefore, pursuant to section 48.031(6), substitute service of process was improper. The trial court rejected Palm's argument and entered a final judgment of foreclosure in favor of First Bank.

Section 702.10. Order to show cause; entry of final judgment of foreclosure; payment during foreclosure (1) After a complaint in a foreclosure proceeding has been filed, the mortgagee may request an order to show cause for the entry of final judgment and the court shall immediately review the complaint. If, upon examination of the complaint, the court finds that the complaint is verified and alleges a cause of action to foreclose on real property, the court shall promptly issue an order directed to the defendant to show cause why a final judgment of foreclosure should not be entered. . . . . Any final judgment of foreclosure entered under this subsection is for in rem relief only. Nothing in this subsection shall preclude the entry of a deficiency judgment where otherwise allowed by law. . . . 2

1

A trial court's ruling on a motion to quash service of process is a question of law subject to a de novo standard of review. Hernandez v. State Farm Mut. Auto. Ins. Co., 32 So. 3d 695, 698 (Fla. 4th DCA 2010). Because a statute allowing substitute service is an exception to the general rule requiring a defendant to be personally served, there must be strict compliance with the statutory requirements so as to protect a defendant's due process rights. Id. In Florida, domestic and foreign corporations qualified to do business in the state are required to designate a registered agent and a registered office. 607.0501, 607.1507, Fla. Stat. (2009).

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