Third District Court of Appeal State of Florida
Opinion filed August 20, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-2024 Lower Tribunal No. 05-26630-CC-23 ________________
East Coast Recovery, Inc., Appellant,
vs.
Patricia Holmes, a/k/a Patricia Hevia, Appellee.
An Appeal from a non-final order from the County Court for Miami- Dade County, Linda Singer Stein, Judge.
Shafritz and Associates, PA, and Hugh Shafritz, and Aaron F. Miller (Delray Beach), for appellant.
Patricia V. Hevia Holmes, in proper person.
Before SCALES, C.J., and LOBREE and GOODEN, JJ.
GOODEN, J. Appellant East Coast Recovery, Inc. appeals an order granting a
motion to vacate a default judgment under Florida Rule of Civil Procedure
1.540. Because we find that the trial court applied the wrong version of the
statute and Holmes did not present clear and convincing evidence that she
was not served, we reverse and remand.
I.
In 2005, East Coast Recovery filed suit against Appellee Patricia
Holmes for defaulting on a credit card. The lower court progress docket
reflects service was returned on January 24, 2006. But Holmes did not
respond to the lawsuit. Consequently, the trial court entered default final
judgment. At some point, the court file was destroyed due to its age.
Seven years later, the judgment still had not been satisfied. In aid of
execution, East Coast Recovery served written discovery on Holmes.
Receiving no response, the trial court ordered Holmes to respond within thirty
days. Holmes again failed to respond. East Coast Recovery moved for an
order to show cause. The trial court ordered Holmes to appear. Holmes was
served with the order by a process server.
2 On July 24, 2014, Holmes appeared at the show cause hearing. 1
Holmes was ordered to respond to discovery within thirty days. Again, she
failed to comply and a second show cause hearing was set. But Holmes
failed to appear. The trial court found Holmes in contempt.
In February 2015, Holmes moved to stay post-judgment discovery. In
that motion, she fully recognized that a final judgment had been entered
against her. She also filed a suggestion of bankruptcy. The bankruptcy was
eventually dismissed.
Nine years later, garnishment proceedings were launched. Holmes’
banking institution was served with a writ of garnishment for the debt. Funds
were garnished from Holmes’ account.
Holmes then moved to vacate the default judgment asserting it was
void. For the first time, she alleged that she was not personally served and
was not given notice of the proceedings. She claimed that she first learned
of the judgment after the bank garnished her bank account.
East Coast Recovery responded: (1) Holmes failed to rebut the
presumption that she was properly served; (2) the return of service shows
Holmes was personally served; and (3) Holmes’ post-judgment participation
1 We have not been provided with a copy of the transcript from this hearing. As a result, we do not know what Holmes argued.
3 in the case waived any objections she may have had regarding service of
process. In support, East Coast Recovery provided a copy of the 2006 return
of service. It shows that Holmes was served on January 24, 2006 at 9:10
pm. It is not signed, but reflects a stamp stating: “ATTORNEY’S COPY
ORIGINAL HAS BEEN FILED.”
Due to the allegations, the trial court conducted an evidentiary hearing.
Holmes focused on the fact the return was not signed. She testified she
does not remember being served. Holmes’ son, who was a teenager at the
time, testified that “[t]here is no way that . . . that [the 2006] service occurred.
It simply did not occur. . . . [T]here is no way that someone came to our house
at 9:00 p.m. at night on that date and that I wouldn’t know about it.” East
Coast Recovery countered that the return of service was regular on its face,
and therefore, the presumption applies. It maintained that Holmes did not
meet her burden to overcome the presumption.
The trial court granted the motion and vacated the judgment.
Analyzing the statute in effect at the time of the hearing, it found that the
return of service was defective on its face because it did not have a
signature. It then ruled that East Coast Recovery failed to show that Holmes
was validly served and that it did not present any testimony or evidence to
rebut Holmes’ claim she was not. This appeal followed.
4 II.
Generally, an order granting a Rule 1.540 motion is reviewed for an
abuse of discretion. Rinconcito Latino Cafeteria, Inc. v. Ocampos, 276 So.
3d 525, 527 (Fla. 3d DCA 2019). But where the motion asserts that the
judgment is void, we review the trial court’s legal determination de novo.
First Call 24/7, Inc. v. Rios, 373 So. 3d 1176, 1178 (Fla. 3d DCA 2022);
Nationstar Mortg., LLC v. Diaz, 227 So. 3d 726, 729 (Fla. 3d DCA 2017).
III.
The Florida Constitution mandates that “[n]o person shall be deprived
of life, liberty or property without due process of law.” Art. I, § 9, Fla. Const.
To ensure due process, the court “must have jurisdiction of the subject matter
and of the persons affected. A defect in the jurisdiction of the court may
render its proceedings void.” Standley v. Arnow, 13 Fla. 361, 366 (Fla.
1869). “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). “If the return is regular on its face,
it serves ‘as a virtual basis for the Court to assume that it has lawfully
obtained jurisdiction over the person of the defendant’ for the purpose of
entering judgment by default against such defendant.” Klosenski v. Flaherty,
116 So. 2d 767, 769 (Fla. 1959) (internal citation omitted).
5 “The party who seeks to invoke the court’s jurisdiction bears the burden
of proving proper service. This burden requires the party to demonstrate that
the return of service is, under section 48.21, facially valid or regular on its
face.” Koster, 160 So. 3d at 389. “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. (citation omitted). See also Telf Corp. v. Gomez,
671 So. 2d 818, 819 (Fla. 3d DCA 1996) (“Further, a defendant may not
impeach the validity of the summons with a simple denial of service, but must
present ‘clear and convincing evidence’ to corroborate his denial.”). But if
the return is defective, the burden remains on the plaintiff and he or she must
otherwise prove valid service. See Re-Employment Servs., Ltd. v. Nat’l Loan
Acquisitions Co., 969 So. 2d 467, 471 (Fla. 5th DCA 2007); Gonzalez v.
Totalbank, 472 So. 2d 861, 864 n.1 (Fla.
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Third District Court of Appeal State of Florida
Opinion filed August 20, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-2024 Lower Tribunal No. 05-26630-CC-23 ________________
East Coast Recovery, Inc., Appellant,
vs.
Patricia Holmes, a/k/a Patricia Hevia, Appellee.
An Appeal from a non-final order from the County Court for Miami- Dade County, Linda Singer Stein, Judge.
Shafritz and Associates, PA, and Hugh Shafritz, and Aaron F. Miller (Delray Beach), for appellant.
Patricia V. Hevia Holmes, in proper person.
Before SCALES, C.J., and LOBREE and GOODEN, JJ.
GOODEN, J. Appellant East Coast Recovery, Inc. appeals an order granting a
motion to vacate a default judgment under Florida Rule of Civil Procedure
1.540. Because we find that the trial court applied the wrong version of the
statute and Holmes did not present clear and convincing evidence that she
was not served, we reverse and remand.
I.
In 2005, East Coast Recovery filed suit against Appellee Patricia
Holmes for defaulting on a credit card. The lower court progress docket
reflects service was returned on January 24, 2006. But Holmes did not
respond to the lawsuit. Consequently, the trial court entered default final
judgment. At some point, the court file was destroyed due to its age.
Seven years later, the judgment still had not been satisfied. In aid of
execution, East Coast Recovery served written discovery on Holmes.
Receiving no response, the trial court ordered Holmes to respond within thirty
days. Holmes again failed to respond. East Coast Recovery moved for an
order to show cause. The trial court ordered Holmes to appear. Holmes was
served with the order by a process server.
2 On July 24, 2014, Holmes appeared at the show cause hearing. 1
Holmes was ordered to respond to discovery within thirty days. Again, she
failed to comply and a second show cause hearing was set. But Holmes
failed to appear. The trial court found Holmes in contempt.
In February 2015, Holmes moved to stay post-judgment discovery. In
that motion, she fully recognized that a final judgment had been entered
against her. She also filed a suggestion of bankruptcy. The bankruptcy was
eventually dismissed.
Nine years later, garnishment proceedings were launched. Holmes’
banking institution was served with a writ of garnishment for the debt. Funds
were garnished from Holmes’ account.
Holmes then moved to vacate the default judgment asserting it was
void. For the first time, she alleged that she was not personally served and
was not given notice of the proceedings. She claimed that she first learned
of the judgment after the bank garnished her bank account.
East Coast Recovery responded: (1) Holmes failed to rebut the
presumption that she was properly served; (2) the return of service shows
Holmes was personally served; and (3) Holmes’ post-judgment participation
1 We have not been provided with a copy of the transcript from this hearing. As a result, we do not know what Holmes argued.
3 in the case waived any objections she may have had regarding service of
process. In support, East Coast Recovery provided a copy of the 2006 return
of service. It shows that Holmes was served on January 24, 2006 at 9:10
pm. It is not signed, but reflects a stamp stating: “ATTORNEY’S COPY
ORIGINAL HAS BEEN FILED.”
Due to the allegations, the trial court conducted an evidentiary hearing.
Holmes focused on the fact the return was not signed. She testified she
does not remember being served. Holmes’ son, who was a teenager at the
time, testified that “[t]here is no way that . . . that [the 2006] service occurred.
It simply did not occur. . . . [T]here is no way that someone came to our house
at 9:00 p.m. at night on that date and that I wouldn’t know about it.” East
Coast Recovery countered that the return of service was regular on its face,
and therefore, the presumption applies. It maintained that Holmes did not
meet her burden to overcome the presumption.
The trial court granted the motion and vacated the judgment.
Analyzing the statute in effect at the time of the hearing, it found that the
return of service was defective on its face because it did not have a
signature. It then ruled that East Coast Recovery failed to show that Holmes
was validly served and that it did not present any testimony or evidence to
rebut Holmes’ claim she was not. This appeal followed.
4 II.
Generally, an order granting a Rule 1.540 motion is reviewed for an
abuse of discretion. Rinconcito Latino Cafeteria, Inc. v. Ocampos, 276 So.
3d 525, 527 (Fla. 3d DCA 2019). But where the motion asserts that the
judgment is void, we review the trial court’s legal determination de novo.
First Call 24/7, Inc. v. Rios, 373 So. 3d 1176, 1178 (Fla. 3d DCA 2022);
Nationstar Mortg., LLC v. Diaz, 227 So. 3d 726, 729 (Fla. 3d DCA 2017).
III.
The Florida Constitution mandates that “[n]o person shall be deprived
of life, liberty or property without due process of law.” Art. I, § 9, Fla. Const.
To ensure due process, the court “must have jurisdiction of the subject matter
and of the persons affected. A defect in the jurisdiction of the court may
render its proceedings void.” Standley v. Arnow, 13 Fla. 361, 366 (Fla.
1869). “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). “If the return is regular on its face,
it serves ‘as a virtual basis for the Court to assume that it has lawfully
obtained jurisdiction over the person of the defendant’ for the purpose of
entering judgment by default against such defendant.” Klosenski v. Flaherty,
116 So. 2d 767, 769 (Fla. 1959) (internal citation omitted).
5 “The party who seeks to invoke the court’s jurisdiction bears the burden
of proving proper service. This burden requires the party to demonstrate that
the return of service is, under section 48.21, facially valid or regular on its
face.” Koster, 160 So. 3d at 389. “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. (citation omitted). See also Telf Corp. v. Gomez,
671 So. 2d 818, 819 (Fla. 3d DCA 1996) (“Further, a defendant may not
impeach the validity of the summons with a simple denial of service, but must
present ‘clear and convincing evidence’ to corroborate his denial.”). But if
the return is defective, the burden remains on the plaintiff and he or she must
otherwise prove valid service. See Re-Employment Servs., Ltd. v. Nat’l Loan
Acquisitions Co., 969 So. 2d 467, 471 (Fla. 5th DCA 2007); Gonzalez v.
Totalbank, 472 So. 2d 861, 864 n.1 (Fla. 3d DCA 1985).
To properly analyze this case, we must start with the governing statute
in effect at the time of service. In 2006, section 48.21, Florida Statutes,
provided,
Each person who effects service of process shall note on a return-of-service form attached thereto, the date and time when it comes to hand, the date and time when it is served, the manner of service, the name of the person on whom it was served and, if the person is served in a representative capacity, the position occupied by the person. A failure to state the foregoing facts
6 invalidates the service, but the return is amendable to state the truth at any time on application to the court from which the process issued. On amendment, service is as effective as if the return had originally stated the omitted facts. A failure to state all the facts in the return shall subject the person effecting service to a fine not exceeding $10, in the court’s discretion.
§ 48.21, Fla. Stat. (2006).
This plain text only requires the return to contain: (1) the date and time
when the complaint comes to hand or is received by the process server; (2)
the date and time when it is served; (3) the manner in which it served; and
(4) the name of the person on whom it was served and the position of the
person, if served if their representative capacity. Id. See also Koster, 160
So. 3d at 389.
The trial court, however, required the return to be signed. But the 2006
statute simply does not require a signature to be valid. Indeed, the
Legislature added the signature requirement in 2011—five years after
Holmes was served with process. See Ch. 11-159, Laws of Fla.
To this end, the attorney’s copy of the return of service readily meets
the 2006 statute’s requirements. It is facially valid and regular. And so, there
is a presumption that service was valid. Holmes was required to overcome
that presumption by clear and convincing evidence. Koster, 160 So. 3d at
389. Based on the record before this Court, Holmes failed to do so. She
7 simply asserted that she did not remember being served and generally
denied that she was. This does not carry the day.
In fact, the record evidence shows she was well-aware of the lawsuit
and judgment. She acknowledged as much in her post-judgment motion to
stay discovery and bankruptcy proceedings. She also appeared at the
show cause hearing. Because Holmes did not carry her burden, we reverse
and remand with instructions to reinstate the final judgment for East Coast
Recovery.
Reversed and remanded with instructions.