Chapter 1-3 Service of Process

1-3 Service of Process

Laws regarding service of process in Florida are strictly construed, and a mortgagee who intends to foreclose should be careful to follow service requirements exactly in order for the trial court to obtain jurisdiction over the defendants.¹³

1-3:1 Methods of Service

Upon the filing of a foreclosure Complaint and Lis Pendens, the clerk of court for the county with jurisdiction over the action will issue summonses to each named defendant.¹⁴ As with any lawsuit filed in Florida, each defendant must be served with a summons within 120 days or the action may be dismissed without prejudice.¹⁵ Service of Process on an individual in a mortgage foreclosure action may be effectuated by personal service, which requires delivering a copy of the summons, complaint and lis pendens at the usual place of abode of the intended recipient.¹⁶ The documents may be left with any person residing therein who is at least 15 years old.¹⁷ In lieu of personal service, substitute service may be made on the spouse of the person to be served at any place in the county, as long as the two reside together.¹⁸ If personal or substitute service is not possible, the plaintiff may also be served by publication.¹⁹ Florida Statutes also provide for service upon corporations and LLCs.²⁰

1-3:2 Motions to Quash Service of Process

The party seeking to invoke the court's jurisdiction bears the initial burden of demonstrating that service was valid, but this is a relatively easy burden to meet because if the return of service is regular on its face, a presumption of proper service is achieved.²¹ The burden then shifts to the served party to overcome that presumption.²² The statutes that govern service of process are to be strictly construed, so any defect may result in service being quashed.²³

A defendant wishing to challenge service of process must raise the issue at the first possible opportunity during the lawsuit—either by motion or by responsive pleading.²⁴ However, if personal jurisdiction is challenged by a defensive motion, the challenge may be waived if the defensive motion seeks other affirmative relief, such as damages or an award of attorneys' fees and costs.²⁵ Service is most easily challenged by identifying a deficiency on the face of the service return, as this will shift the burden to the plaintiff to prove that service was proper.²⁶ Ineffective service of process may render a resulting judgment void, so it is critical that the plaintiff ensures perfect service...