Lilly v. Bank of Am., N.A., 267 So. 3d 452 (2019)

April 10, 2019 · District Court of Appeal of Florida, Fourth District · No. 4D18-2483

267 So. 3d 452

Roy L. LILLY, Appellant,
v.
BANK OF AMERICA, N.A., Appellee.

No. 4D18-2483

District Court of Appeal of Florida, Fourth District.

[April 10, 2019]

Michele K. Feinzig of Law Offices of Robin Bresky, Boca Raton, for appellant.

Mary J. Walter of Liebler Gonzalez & Portuondo, Miami, for appellee.

Per Curiam.

We reverse the circuit court's denial of appellant's motion to quash service of process and remand for an evidentiary hearing on the motion.

The circuit court failed to set an evidentiary hearing on appellant's facially sufficient motion to quash service of process. A defendant is entitled to an evidentiary hearing on a motion to quash service of process if the motion and accompanying affidavit, if proven by clear and convincing evidence, would show that the plaintiff failed to effect valid service. Linville v. Home Sav. of Am. , FSB , 629 So.2d 295, 296 (Fla. 4th DCA 1993). Appellant's motion to quash and accompanying affidavit adequately challenged the process server's failure to comply with section 48.031, Florida Statutes (2015). See Nirk v. Bank of Am., N.A. , 94 So.3d 658, 659-660 (Fla. 4th DCA 2012) (holding that section 48.031(5), Florida Statutes (2010) required the information to appear on the copy of the summons); see also Romeo v. U.S. Bank Nat'l Ass'n , 144 So.3d 585, 586 (Fla. 4th DCA 2014) ("When a process server fails to strictly comply with [statutes governing service of process], service must be quashed." (quoting Brown v. U.S. Bank Nat'l Ass'n , 117 So.3d 823, 824 (Fla. 4th DCA 2013) ) ).

Reversed and remanded .

Gross, Damoorgian and Ciklin, JJ., concur.