In this case, the plaintiff filed a motion to serve a defendant by publication.  The defendant specially appeared in the action and moved to quash the attempted service, claiming that the defendant was residing in Costa Rica.  Defense counsel provided the foreign address at the hearing.  The court denied the motion to quash and allowed service by publication.  Finding that courts should “strictly construe” service of process statutes, the appellate court reversed, holding that “service of process by publication . . . is only permitted when personal service cannot be obtained,” and here, “the trial court has not made a finding that the defendant was attempting to evade service.”  As a result, the plaintiff was required to at least attempt to serve the defendant at the foreign address provided to the plaintiff.

Estela v. Cavalcanti, 36Fla. L. Wkly D2773a (Fla. 3d DCA Dec. 21, 2011)

The mortgage foreclosure cases continue to produce a flood of civil procedure decisions. The latest comes from an appeal to the Florida Supreme Court. At issue in the case is whether a foreclosing bank, BNY Mellon, can be sanctioned for filing an allegedly fraudulent assignment of mortgage. That question was on appeal to the Fourth DCA and then certified as a question of great public importance. The Florida Supreme Court accepted jurisdiction per Art. V, Section 3(b)(4) of the Florida Constitution.

After Pino filed his Inital Brief with the Florida Supreme Court, but before an Answer Brief was filed, the parties reached a settlement and filed a Joint Stipulated Dismissal per Fla. R. App. P. 9.350. The Florida Supreme Court determind that, since the matter was of great public importance, it had the discretion to retain jurisdiction over the case. The Court therefore denied the parties leave to dismiss the case until after the Court issued its opinion.

Pino v. Bank of New York, 36 Fla. L. Wkly s711 (Fla. Dec. 8, 2011).

In this case, the trial court rejected a defaulting party’s claim that the court should vacate a default for lack of subject-matter jurisdiction, but nonetheless granted the motion based on excusable neglect.  The appellate court reversed and remanded, holding, “[T]he trial court could not set aside the default judgment based upon excusable neglect where such an issue was not presented by the pleadings, noticed for hearing, or litigated by the parties.”

 Bank of America, N.A v. Nancy A. Laneand Robert G. Lane, 36 Fla.L. Wkly D2631A (Fla. 1^st DCA Nov. 30, 2011)

In this foreclosure case, Defendants did not file an answer to the complaint.  Instead of moving for default, the bank moved for summary judgment.  One of the defendants filed an opposing affidavit raising various defenses, but still did not file an answer.  The trial granted summary judgment, and the same Defendant appealed.  The appellate court reversed, rejecting the bank’s argument that “affirmative defenses raised in an affidavit opposing the motion for summary judgment cannot be considered by the trial court.”  Rather, citing Rule 1.500(c), the court held, “[A] party may plead or defend at any time before a default is entered. . . . Because the bank failed to refute the affirmative defenses or show they were legally insufficient, it was error for the trial court to grant summary judgment.”

Faythe p. Woodrum, Timothy P. Woodrum and Dawn M. Woodrum v. Wells Fargo Mortgage Bank, N.A., 36 Fla. L. Wkly D2431b (Fla. 4th DCA Nov. 9, 2011)