Friday, May 6, 2011

It Is The Plaintiff's Burden To Prove The Validity Of Service Of Process

In Silva v. BAC Home Loans Servicing, L.P. (5D10-3511), the Fifth District reversed an order denying a motion to set aside a default judgment. In this case, the plaintiff served the defendant under section 48.031, Florida Statutes, by serving “Luz Rodriguez,” who was purportedly living at the property. After judgment was entered, the appellant/defendant sought to vacate the judgment and filed affidavits establishing they did not know Luz Rodriguez, that the property had been vacant for "some time" before the purported substituted service, and that they had lived in Miami for at least 18 months.

The Fifth District stated:
The party seeking to invoke the court’s jurisdiction has the burden to prove the validity of service of process. See Torres v. Arnco Constr., Inc., 867 So. 2d 583, 587 (Fla. 5th DCA 2004). This record does not reflect competent evidence that BAC Home Loans Servicing L.P., the plaintiff below, met that burden. The default judgment was, therefore, void and must be set aside. See Alvarez v. State Farm Mut. Auto. Ins. Co., 635 So. 2d 131 (Fla. 3d DCA 1994).
For what it's worth, the appellee did not appear in this appeal.


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