Montes-Mustira v. Aurora Loan Services, L.L.C.

98 So. 3d 778, 2012 Fla. App. LEXIS 18108, 2012 WL 4896734

• Court: District Court of Appeal of Florida
• Decided: October 17, 2012
• Docket: No. 4D11-3853
• Status: Published

Opinion

PER CURIAM.

Approximately one year after entry of a final judgment of foreclosure in favor of Aurora Loan Services, L.L.C., appellants filed a sworn 1.540(b) motion to vacate the judgment, alleging that they had never been served with process and that the company that allegedly served appellants was presently under investigation for sloppy service practices. The trial court summarily denied the motion. Because the allegations of appellants’ motion, if established as true, were sufficient to entitle them to relief, the trial court erred in denying the motion without first affording appellants an evidentiary hearing. See M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 1080 (Fla. 4th DCA 2000) (“[A] judgment entered without service of process on the defendant is void and may be attacked at any time....”); Se. Termite & Pest v. Ones, 792 So.2d 1266, 1268 (Fla. 4th DCA 2001) (“[Wjhere the contents of an affidavit supporting a defendant’s contention of insufficiency of service would, if true, invalidate the purported service and nullify the court’s personal jurisdiction over the defendant, the trial court should hold an evidentiary hearing before deciding the issue.”). The ap-pellee concedes an evidentiary hearing is required.

Reversed and Remanded.

WARNER, STEVENSON and TAYLOR, JJ., concur.