Brown v U.S. Bank | FL 4DCA - Bank's process server placed the wrong date

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Brown v U.S. Bank | FL 4DCA – Bank’s process server placed the wrong date

Brown v U.S. Bank | FL 4DCA – Bank’s process server placed the wrong date

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

January Term 2013

FRED BROWN and MARGARET CRONEY-BROWN,
Appellants,

v.

U.S. BANK NATIONAL ASSOCIATION, as Trustee for the Structured
Asset Investment Loan Trust, 2005-9; TRAILWOOD HOMEOWNERS
ASSOCIATION, INC.; JOHN DOE and JANE DOE, as unknown tenants
in possession; and ANY AND ALL UNKNOWN PARTIES CLAIMING BY,
THROUGH, UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL
DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE,
WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS
SPOUSES, HEIRS, DEVISEES, GRANTEES OR OTHER CLAIMANTS,
Appellees.

No. 4D12-4612

[June 26, 2013]
PER CURIAM.

This appeal arises from the trial court’s denial of appellant Margaret
Croney-Brown’s motion to quash service of process in the underlying
foreclosure proceedings. In their initial brief, appellants (Mrs. Croney-
Brown a n d her husband) argue that appellee U.S. Bank National
Association (the “Bank”) failed to meet its burden of showing that it
effectuated valid service of process by strictly complying with the service
of process statutes. Section 48.031(5), Florida Statutes (2009), requires
the process server to note the actual date and time of service on the
summons. See also Fla. R. Civ. P. 1.070(e) (requiring that the “date and
hour of service shall be endorsed on the original process and all copies of
it by the person making the service”). When a process server fails to
strictly comply with these rules, service must be quashed. See Kwong v.
Countrywide Home Loans Servicing, L.P., 54 So. 3d 1033, 1034 (Fla. 4th
DCA 2011); Schupak v. Sutton Hill Assocs., 710 So. 2d 707, 708 (Fla. 4th
DCA 1998) (“Strict compliance with the statutes governing service of
process is required.”). In this instance, the Bank’s process server placed
the wrong date on Mrs. Croney-Brown’s summons,1 a fact which the
Bank never disputed.

Appellants further contend that Mrs. Croney-Brown did not waive the
defect in service by making discovery requests and moving for sanctions
(for failure to comply with court order compelling discovery).2 These
motions, which were purely defensive in nature, could not be maintained
“independently of plaintiff’s claim,” and thus, were not requests for
affirmative relief. See Heineken v. Heineken, 683 So. 2d 194, 197 (Fla.
1st DCA 1996) (“‘[A]ffirmative relief’ [is] ‘[r]elief for which defendant might
maintain an action independently of plaintiff’s claim and on which he
might proceed to recovery, although plaintiff abandoned his cause of
action or failed to establish it.’”) (quoting Grange Ins. Ass’n v. State, 757
P.2d 933, 940 (Wash. 1988) (en banc) (quoting Black’s Law Dictionary 56
(5th ed. 1979))); see also Babcock v. Whatmore, 707 So. 2d 702, 704 (Fla.
1998).

Appellee advises this court that, in lieu of filing an answer brief, it
concedes that the denial of Mrs. Croney-Brown’s motion to quash service
was reversible error. We accept the appellee’s confession of error, and
reverse and remand this cause to the trial court for further proceedings
consistent herewith.

Reversed and Remanded.
STEVENSON, GROSS and TAYLOR, JJ., concur.
* * *
Appeal of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Susan R. Lubitz, Judge; L.T. Case
No. 50 2009 CA 029344 XXXX MB.
Thomas Erskine Ice of Ice Appellate, Royal Palm Beach, for
appellants.

1 When the Bank served Mrs. Croney-Brown, the process server listed the date
and time of service on the Summons as September 1, 2009, at 9:40 p.m.
Contrastingly, the date and time on the return of service indicated not only a
different time, but a different date—September 2, 2009, at 9:40 a.m.2 The Bank has apparently abandoned the waiver argument, which appellants
assert was its only argument below—and the argument upon which the trial
court relied in denying the motion to quash.

Dean A. Morande and Michael K. Winston of Carlton Fields, P.A.,
West Palm Beach, for appellee U.S. Bank National Association.
Not final until disposition of timely filed motion for rehearing.

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