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Attorney Arcadier
Attorney Arcadier, Attorney
Category: Business Law
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Experience:  Contract questions and Incorporation questions answered.
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RE: Florida Law - breach of contract complaint, collection

Resolved Question:

RE: Florida Law - breach of contract complaint, collection matter. Improper service- Non-waiver of right to dismiss.

Defendant was served by retail mailbox. Summons and complaint were handed to owner of retail mailbox to place into defendant's private mail box. Defendant's residential address can be found in the public record. However, no attempt was made to effect service on Defendant individually.

Rather than respond to complaint and improper service with an immediate MTQ service.... Can defendant respond by providing a response and affirmative defenses, plus an affidavit from Mailbox store owner, and state that defendant does not waive right to due process and proper service by responding to complaint... then describe the improper service, attach exhibit of affidavit, and state as an AFF. Def. that as such the court does not have personal jurisdiction over defendant (re cite case law showing FL requires strict compliance regarding due process) and therefore complaint should be dismissed.... and then proceed with other Aff. Defenses, which would include failure to state to state a claim, and violation of FL RCP by Plaitiff's failure to provide a copy of the alleged contract, etc.?

Can the response be in this manner and still preserve right for Defendant to later file MTD on improper service, etc?

Thank you.
Submitted: 2 years ago.
Category: Business Law
Expert:  Attorney Arcadier replied 2 years ago.

Attorney Arcadier : If service of process has not been achieved. Defendant can ignore complaint.
Customer:

By responding to complaint and indicating service has not been proper is that a drawback?

Attorney Arcadier : if you did a motion to dismiss for the limited purpose to challenge service, then thats ok, but you will be served at tie that you have hearing. What is your goal?
Customer:

Defendant has been a Florida homeowner for over a decade. Her name would therefore be discoverable in the eh in the publ the be in thedl

Customer:

oops disregard

Customer:

Defendant's residential address has been found in the public record without going through FL property records. However in Florida, if one is a homeowner the owner's address is the residential address of the homeowner, then isn't this address discoverable in the Public record?

Customer:

If Defendant responds to complaint... can one of the Affirmative Defenses

Customer:

If Defendant responds to complaint... can one of the Affirmative Defenses be improper service?

Customer:

If Defendant responds to complaint... and doesn't set a hearing for MTD... then Plaintiff would have to set hearing, correct? And if there was hearing and improper service is ruled to have occurred then isn't Plaintiff required to re-file a new case. Or can Plaintiff simply serve process on the same case, and proceed with the same case?

Attorney Arcadier : Plaintiff can correct service at any time within 180 days of filing. While yes, it can be an affirmative defense, it does not work that way in practical terms because service can easily be corrected.
Attorney Arcadier : And yes, if mtd is not set by defendant, the. plaintiff must do it otherwise case just lingers.
Customer:

If defendant does not respond at all (from the mailbox service), then what is likely to occurr? Plaintiff could file for a default judgement, correct? Then where does defendant stand at that point in time?

Attorney Arcadier : No. Judge can not grant default unless there is proper service. If no service, then defendant can ignore complaint without harm to him or her.
Attorney Arcadier : And forget about mailbox service, thats meaningless.
Customer:

I have seen the rule that says mailbox service is acceptable as substitute service if defendants address cannot be found in public record... but this seems very odd in Defendant's case since she is, and has been a homeowner with her husband co-owners of a homestead property and the address of the owners (the couple) is their residential address..... so therefore aren't they "discoverable in the public record" ? ie. so that pocess server/plaintiff cannot say that "service by mailbox was proper"

Attorney Arcadier : There is a process called substitude service, but first, you must be able toprove defendant is unavailable. Forget about the public record, that wont get you service. You hire a process server, costs $35 and they serve defendant. If they are unable to serve, then you will have to prove that service is not possible and must be gotten through publication and some other means.
Customer:

OK... thank you for your patience, I think I am understanding but want to make sure....

Customer:

just a minute didn't finish....

Customer:

OK... thank you for your patience, I think I am understanding but want to make sure....


The process server handed summons and complaint to the owner/manager of the retail mailbox store and told him to place process in Defendant’s private mail box. Defendant has since obtained a sworn affidavit from the store owner testifying that that is what happened.


Defendant found summons/complaint in her mailbox. It is dated and appears to have initials (of process server?) next to date. There is a handwritten case number XXXXX the summons. And when you look in th online county court records the docket is saying that process server served summons. Can’t see any more than that information as it is blocked from public online viewing.


No attempt was ever made to serve Defendant individually.


 


So therefore due to the above, you are saying the Summons can be completely ignored and that no response from Defendant is legally necessary. Is that correct?


 


So then what is likely to happen to the case when it comes up for hearing? Won’t Plaintiff just file for Default judgment? And if Plaintiff does so, how will defendant be notified of whatever transpires?


 

Attorney Arcadier : If process server says he has served, then he has served. Once served, then defendnat can chose to answer complaint or do a mtc.
Customer:

MTC -- motion to compel? or Motion to Quash?

Attorney Arcadier : sorry... I meant, mtd...
Customer:

So you are saying there Does have to be an answer or MTD ...can't just ignore, correct?

Attorney Arcadier : correct, if you have process service.
Customer:

due to having to answer (even the invalid service).... That is why I was asking if the answer could list as an Aff. def the invalid service, along with other Aff deff without motioning for a hearing ....

Customer:

is that possible

Attorney Arcadier : yes its possible, but silly to do.
Customer:

Plaintiff has alleged breach of contract, but failed to attach copy of contract or any contract terms, which appears to violate the FCP rule that says contracts must be attached to complaint... otherwise there failure to state a claim. and if so, then should the answer be a Motion to Dismiss for Failure to state a claim?

Attorney Arcadier : yes... that makes sense to do.
Customer:

If Defendant still prefers to respond in this case with MTQ service then .... If hearing is set for MTQ and service is ruled invalid then does Plaintiff have legal right to serve defendant at that point i.e.there in the Courthouse ... or would the case have to be re-filed and sent out for service once new case is filed? If service is allowed to be effected on Defendant at the MTQ hearing, then does Defendant again have 20 days in which to respond? Defendant currently has affidavit from store owner... the title at top of Affidiavit says it is Affidavit in Support of Defendant's Answer and Affirmative Defenses. -- If Defendant is going to move for Motion to Quash is that Affidavit "title" a problem in attaching the Affidavit to a Motion to Quash Service? Or is the Affidavit testimony acceptable regardless of the title at the top?

Attorney Arcadier : Yes. can serve right then and there and part of same case. Up to judge to allow how much time. 10 days is typical at that point. title does not affect the substantive motion.
Attorney Arcadier, Attorney
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Experience: Contract questions and Incorporation questions answered.
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