Homeowner’s motion to quash service that worked – period

This is a relatively new case. The bank commenced the foreclosure, but the homeowner could not be served. The process server filed an affidavit of avoidance, stating that he made 8 attempts. The bank’s attorneys started service of process by publication.

It’s a standard procedure. This is what the banks’ attorneys do all the time. But the savvy homeowner went to the legal aid, and procured an attorney who filed a motion to quash service. She argued Florida law does not authorize service of process by publication in cases where plaintiff seeks monetary relief. Section 49.011, Florida Statutes. Also, Huguenor v. Huguenor, 420 So. 2d 344 (Fla. 5th DCA 1982).

She argued further that the bank failed to allege in the body of the complaint the facts stated in the affidavit of avoidance. Monaco v. Nealon, 810 So. 2d 1084 (Fla. 4th DCA 2002); Drake v. Scharlau, 353 So. 2d 961 (Fla. 2nd DCA 1978).

The judge sided with the homeowner. He said 8 attempts to serve do not equal an allegation that a person is concealing himself. He also asked the homeowner’s attorney: you are not authorized to accept the service of process on behalf of your client, are you? She said: no. The court quashed the service of process by publication. The bank has to start it all over again. I can imagine how difficult it will be to serve this person.

The only comment is that motion to quash service is the only motion that can be filed under the circumstances. If you respond in any other way, that would mean you accepted service.

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