GROSS, J.
James and Roberta Matthews appeal the September 22, 2015 order denying their motion to quash service of process in a foreclosure case. We affirm the circuit court and hold that the return of service complied with the applicable Florida Statute.
U.S. Bank filed an action to foreclose a mortgage against the Matthews and two other defendants in March 2014. On April 12, 2014 at 1:15 p.m., a process server served James personally with the summons and complaint in Rumson, New Jersey and served him with substituted service for his wife, Roberta, who resides with him.
On December 15, 2014, the Matthews filed a verified motion to quash service of process. The motion mistakenly avers that the alleged service of process occurred in Michigan. Also, a paragraph in the motion stated that "the purported service [was] upon VIRGINIA SORY BROWN." In their verification to the motion, James and Roberta stated "[u]nder penalties of perjury" that the facts stated in the motion were "true."
On September 15, 2015, the court conducted an evidentiary hearing on the motion to quash service of process. The circuit court began by observing that the returns of service were regular on their face, so the burden had shifted to the movants. The Matthews objected that the returns were hearsay, a proposition that this Court later rejected in Davidian v. JP Morgan Chase Bank, 178 So.3d 45, 47-48 (Fla. 4th DCA 2015). The circuit court properly rejected the hearsay roadblock and ruled that the returns were regular on their face.
James testified that he was served in his driveway. A car pulled up. A man walked up and asked if he was James Matthews. After James confirmed his identity, the man handed him a pile of papers. He said nothing further except "have a good day."
Matthews identified the summons he received from the process server and the handwritten notations on it. He could not read the first notation, but the date and time were noted. He testified similarly as to the notations that were on the summons for his wife.
On cross-examination, the bank's counsel questioned James about the misstatements in the sworn motion-that service occurred in Michigan and the reference to an unknown person, Ms. Virginia Sory Brown. James admitted that he "most likely" had not read the document. "I just signed it because my attorney said it's something that needs to be signed." He confirmed that the verification stated, "under penalty of perjury," that he had read the document. On redirect, James blamed the misstatements in the sworn motion on "scrivener's errors" attributable to his attorneys.
The circuit court denied the Matthews' motion to quash. By written order, the court ruled that the returns were regular on their face, which placed the burden on the movants to establish by clear and convincing evidence that service was invalid.
The order further found that the handwritten notations on the summonses were proper, as they contained the initials of the process server, along with the time and date of service. No identification number was noted, but process was served out-of-state. There was no indication that New Jersey law required a process server to have an identification number. No testimony was presented on this issue, so the court concluded that defendants had failed to meet their burden of establishing invalid service.
As to the process server's supposed failure to advise James of the contents of the papers, the court concluded that this requirement applies only to substituted service, not personal service. The return specifically states that James Matthews was informed of the contents when he was served with substituted service for his wife. The court found James's contrary testimony to lack credibility.
The service of process statutes are "strictly construed and enforced" consistently with their purpose, which "is to give the person affected notice of the proceedings
"The return of service is the instrument a court relies on to determine whether jurisdiction over an individual has been established." Koster v. Sullivan, 160 So.3d 385, 388 (Fla.2015), cert. denied, ___ U.S. ___, 136 S.Ct. 164, 193 L.Ed.2d 45 (2015). Section 48.21, Florida Statutes (2014), identifies "four facts that a return of process shall note:"
Koster, 160 So.3d at 389 (emphasis in original).
A plaintiff seeking to "invoke the court's jurisdiction bears the burden of proving proper service," which requires a showing that the return of service is "facially valid or regular on its face." Id. "If the return is regular on its face, then the service of process is presumed to be valid and the party challenging service has the burden of overcoming that presumption by clear and convincing evidence." Id. (quoting Re-Emp't Servs., Ltd. v. Nat'l Loan Acquisitions Co., 969 So.2d 467, 471 (Fla. 5th DCA 2007)). Thus,
Lazo v. Bill Swad Leasing Co., 548 So.2d 1194, 1195 (Fla. 4th DCA 1989).
Here, the returns of service are regular on their face as they contain the four facts required by section 48.21:(1) the process server received the pleadings on March 28, 2014 at 10:30 a.m.; (2) process was served on April 12, 2014 at 1:15 p.m.; (3) & (4) James Matthews was individually served and Roberta Matthews was served by substituted service on James Matthews, her spouse. Pursuant to Koster, nothing more was required of the returns. 160 So.3d at 389.
The returns gave rise to a presumption of valid service, and the burden was on James and Roberta to present clear and convincing evidence that service was invalid.
On appeal, Matthews raises four claims:
Our discussion of the first three claims establishes that the trial court properly shifted the burden of proof because the
Section 48.194, Florida Statutes (2014), provides:
(Emphasis added).
Appellants argue that the returns of service, which are titled "Affidavit of Service," cannot be relied on "because they are not sworn, and because the declarant does not assume the obligations of an oath."
This claim is belied by the affidavits, which are signed by the process server and state: "I hereby certify that I am not a party to the above action or suit and I am over the age of 18 years and the above affidavit is true and correct." Additionally, each affidavit is notarized by a New Jersey Notary Public, Dawn Rodrigues, who states that the document was "[s]worn to or affirmed and signed before me this 13 day of April 2014." New Jersey notary publics are authorized to administer oaths. N.J. STAT. ANN. § 41:2-1 (West 2015).
Appellants rely on Placide v. State, 189 So.3d 810 (Fla. 4th DCA 2015), but that case concerned an unnotarized affidavit claimed as newly discovered evidence in a postconviction relief proceeding under Florida Rule of Criminal Procedure 3.850. The statement in Placide was not sworn before a notary public and did not qualify as an unnotarized, written declaration under section 92.525(2), Florida Statutes. Id. The statement was deficient because it did not state that it was made under penalty of perjury and used the qualifying language that the information was true "to the best of my information, knowledge, and belief." Id. Unlike the affidavit in this case, the document in Placide was not sworn before a person authorized to administer oaths. Id.
Appellant's argument on this point is frivolous. There is no arguable basis for an attorney to contend that the affidavit here, which was sworn before a notary public, is not an "affidavit" under the above statute.
Appellants' next argument concerns section 48.031(5), which provides: "A person serving process shall place, on the first page of at least one of the processes served, the date and time of service and his or her identification number and initials for all service of process." § 48.031, Fla. Stat. (2015). Appellants contend that the summonses contain illegible handwritten notations.
Our review of the notations reveals that the initials begin with the letter "R" and end with the letter "C," which correspond to the process server's name.
Appellants insist that service should be invalidated because the process server's initials are illegible and because no identification number was noted. They rely on
In Vidal, this Court recognized that this requirement has no due process implication but nevertheless required strict compliance with this aspect of the service of process statute.
Id. at 403. Vidal, however, does not support invalidating service because the process server has poor penmanship.
Regarding the lack of an identification number, we note that process was served in New Jersey. There is nothing in the record to indicate that New Jersey licenses process servers or that the process server had an identification number. See N.J. CT. R. 4:4-3 ("Summonses shall be served, together with a copy of the complaint, by the sheriff, or by a person specially appointed by the court for that purpose, or by plaintiff's attorney or the attorney's agent, or by any other competent adult not having a direct interest in the litigation.") (emphasis supplied).
The burden was on appellants to show by clear and convincing evidence that service was invalid. The trial court properly concluded that appellants did not carry that burden as to this claim.
Appellants next claim that the process server failed to advise them of the content of the papers. Section 48.031(1)(a) provides in pertinent part:
(emphasis supplied). Appellants recognize that Davidian v. JP Morgan Chase Bank, 178 So.3d at 49, rejected the argument that this requirement applies when an individual is personally served. 178 So.3d at 49.
Nevertheless, they contend that it applies to the substituted service on Roberta. However, the return of service states that the server served James Matthews with the papers and informed him "of their contents, pursuant to F.S. 48.031."
Although James testified that the process server said nothing else other than "have a nice day," the trial court was not required to believe this testimony. As the trial court delicately put it, James' "credibility was lessened" by his admission that his affidavit contained a false statement. Appellants failed in their burden to overcome the presumption of valid service by clear and convincing evidence. We note that the statutory requirement of informing about the "contents" of the "complaint, petition, or other initial pleading" requires nothing more than saying that the papers contain a lawsuit and not a microanalysis of the causes of action or other legal issues involved. See Mauro v. Wells Fargo
Affirmed.
DAMOORGIAN and GERBER, JJ., concur.