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Q: Florida - Nonenforceable service process ( Answered 5 out of 5 stars,   1 Comment )
Subject: Florida - Nonenforceable service process
Category: Relationships and Society > Law
Asked by: flsmallclaims-ga
List Price: $20.00
Posted: 30 Nov 2005 18:33 PST
Expires: 30 Dec 2005 18:33 PST
Question ID: 599774

If an out-of state creditor (Illinois) attempts service process
(summons/complaints) for an Illinois debt in FL through the
appropriate channels (filing summons/complaints with the IL county
court, sending the service process to the FL county the defendant
resides in, etc.) and the defendant can not be reached physically in
person nor any other persons residing at the defendant's residence can
be physically reached by the Sheriff's office process server or
private process server, can the sheriff/process server place the court
order on the defendant's residential door and count it as the
defendant being served or is this falsification of service?

Doesn't the defendant have to sign or someone have to sign to obtain
proof of service for nonenforceable writs/service orders?  I beleive
enforceable writs such as eviction are exempt from signatures but I'm
not sure about nonenforceable.

And if this is a falsification of service, what recourse does the
defendant have  such as will the creditor need to refile an alias
service or will the creditor be able to still initiate court
proceedings based on this service and win if the defendant does not
appear and if this happens and the defendant appeals will/can the case
be dismissed on these grounds?

Please provide links to statutes or cases that reference/evidence your answer.

Subject: Re: Florida - Nonenforceable service process
Answered By: hagan-ga on 01 Dec 2005 08:54 PST
Rated:5 out of 5 stars
Hello, flsmallclaims.  It looks as though service upon the Florida
resident was improperly made under Illinois law.

The following Illinois Statutes discuss the proper methods of service.
 According to Illinois law, personal service outside the state must be
made in the same manner as service within the state.

735 ILCS 5/2-208. Personal service outside State.
"The service of summons shall be made in like manner as service within
this State, by any person over 18 years of age not a party to the
action. No order of court is required. An affidavit of the server
shall be filed stating the time, manner and place of service. The
court may consider the affidavit, or any other competent proofs, in
determining whether service has been properly made."

So we have to look at what the law requires for in-state service.  And
although no signature is required, the process server DOES have to at
least give the document to a person, not just nail it to the door.

735 ILCS 5/2-203. Service on individuals.  
(a)     Except as otherwise expressly provided, service of summons
upon an individual defendant shall be made
 (1)    by leaving a copy of the summons with the defendant personally,  
 (2)    by leaving a copy at the defendant's usual place of abode,
with some person of the family or a person residing there, of the age
of 13 years or upwards, and informing that person of the contents of
the summons, provided the officer or other person making service shall
also send a copy of the summons in a sealed envelope with postage
fully prepaid, addressed to the defendant at his or her usual place of

Statutes are at

Now, that doesn't mean that you should just ignore it.  If you do,
they will probably go on to get a judgment, because the court will not
review the adequacy of service on its own.  And even though the
judgment would be subject to dismissal later, that is still a whole
lot of headache and hassle you're better off avoiding.

The way you challenge adequacy of service is through a Motion to Quash:
735 ILCS 5/2?301) (from Ch. 110, par. 2?301) 
    Sec. 2?301. Objections to jurisdiction over the person.
"(a) Prior to the filing of any other pleading or motion other than a
motion for an extension of time to answer or otherwise appear, a party
may object to the court's jurisdiction over the party's person, either
on the ground that the party is not amenable to process of a court of
this State or on the ground of insufficiency of process or
insufficiency of service of process, by filing a motion to dismiss the
entire proceeding or any cause of action involved in the proceeding or
by filing a motion to quash service of process. Such a motion may be
made singly or included with others in a combined motion, but the
parts of a combined motion must be identified in the manner described
in Section 2?619.1. Unless the facts that constitute the basis for the
objection are apparent from papers already on file in the case, the
motion must be supported by an affidavit setting forth those facts."

NOTE:  the part about ?Prior to the filing of any other pleading or
motion? is VITALLY IMPORTANT.  If you do ANYTHING ELSE FIRST, such as
file an answer, you have WAIVED THE RIGHT TO QUASH SERVICE.

Here is a sample motion to quash:

You then ask, what recourse is there if the plaintiff goes ahead and
proceeds with the lawsuit as if you had been properly served?  And the
answer is, you can have any resulting judgment dismissed at any time.

?It is essential to the validity of a judgment that the court entering
the judgment have jurisdiction of the subject matter of the litigation
and jurisdiction over the parties.  State Bank of Lake Zurich v.
Thill, 113 Ill. 2d 294, 308 (1986).  Absent a general appearance, a
court can obtain personal jurisdiction only after proper service of
process.  State Bank of Lake Zurich, 113 Ill. 2d at 308.  A party over
whom a court fails to acquire jurisdiction may, at any time, either
directly or collaterally, attack and vacate a judgment that the court
enters against the party.  In re Marriage of Verdung, 126 Ill. 2d 542,
547 (1989).?
_Christiansen v. Saylor_ (1998) No. 2--97?0742

(Sorry about the really long link, but that's the way it appears.)

Anyway, good luck, and I hope this was helpful.  Please let me know if
there's any further information you need.

Request for Answer Clarification by flsmallclaims-ga on 01 Dec 2005 13:23 PST
I really loved your detailed answer because while I had found some of
the same information concerning Illinois statutes, I was confused on
interpreting it.

I apologize, I have one more question because I was looking at Broward
county's website,
and for out of state process service, it states the following next to
the $50 fee:

"Out-of-State Non-Enforceable Process: BSO's Civil Division will serve
the process per Florida Statutes unless an explicit letter of
instructions accompanies each document"

And Florida statutes states:

"48.031  Service of process generally; service of witness subpoenas.--

(1)(a)  Service of original process is made by delivering a copy of it
to the person to be served with a copy of the complaint, petition, or
other initial pleading or paper or by leaving the copies at his or her
usual place of abode with any person residing therein who is 15 years
of age or older and informing the person of their contents. Minors who
are or have been married shall be served as provided in this section.

(b)  Employers, when contacted by an individual authorized to make
service of process, shall permit the authorized individual to make
service on employees in a private area designated by the employer.

(2)(a)  Substitute service may be made on the spouse of the person to
be served at any place in the county, if the cause of action is not an
adversary proceeding between the spouse and the person to be served,
if the spouse requests such service, and if the spouse and person to
be served are residing together in the same dwelling.

(b)  Substitute service may be made on an individual doing business as
a sole proprietorship at his or her place of business, during regular
business hours, by serving the person in charge of the business at the
time of service if two or more attempts to serve the owner have been
made at the place of business. "

The only part that I believe pertains to me is section 1, which is
similar to Illinois, but it seems vague because couldn't the process
server say, I taped/nailed the summons to the door because I thought
someone was inside and I spoke to them through the door.  I believe
this is what the sheriff deputy did because my neighbor informed me of
such, but that of course is hersay in the court's eyes. I just need
some clarification to be sure as what my next step is because if
Florida statute is interpreted the same as Illinois as it appears to
be then I believe your initial answer to me will definitely suffice
and I will attempt the Motion to Quash.

Thanks again.

Clarification of Answer by hagan-ga on 01 Dec 2005 14:32 PST
Hello again!  I'm glad you found the information helpful.
Don't worry about the Florida statute.  It doesn't apply.  The
Illinois court will apply Illinois law, NOT Florida law.
Note that the Illinois statute requires not only that the process
server leave it with a person over 15, but he must also mail it to
you.  I didn't get the impression that he had done so.
And in any case, under either Florida OR Illinois law, saying "I
talked to the person through the door" won't cut it -- it has to be
left with a person RESIDING THERE.  How would the process server know
that the person was over 15, and residing there, unless he physically
laid eyes on them and found out who they were?
Best of luck to you, and please don't hesitate to ask again if there's
any more clarification you need.
flsmallclaims-ga rated this answer:5 out of 5 stars and gave an additional tip of: $10.00
Awesome quality work and hagan-ga steered me in the right direction
and is well deserving of a tip :)

Subject: Re: Florida - Nonenforceable service process
From: hagan-ga on 06 Dec 2005 06:08 PST
Many thanks for the kind comments and the generous tip!

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