Case of the Day: Bevilacqua v. US Bank

The case of the day is Bevilacqua v. US Bank, NA (Fla. Dist. Ct. App. 2016). US Bank brought a foreclosure action against a mortgagor, Renato Bevilacqua. The return of service indicated that Bevilacqua was personally served in Miami, Florida. US Bank obtained a default judgment, but Bevilacqua then moved to set aside the judgment, stating that he lived in Italy, had never been served with process, and had had no notice of the action. The court set aside the judgment. The bank then sought to serve process on Bevilacqua via the central authority under the Hague Service Convention.

The Article 6 certificate stated that because Bevilacqua was not found at his home, he was served by leaving the papers at the town hall, with a notice sent to Bevilacqua by mail and also left at his home, pursuant to Article 140 of the Code of Civil Procedure, which provides:

If it is not possible to make service due to unavailability or incapacity or refusal of the persons mentioned in the preceding article, the process server shall deposit a copy at the home where service is to be done, affixing a notice of deposit in a sealed envelope at the door of the recipient’s home, office, or company, notifying service by registered letter with return receipt.

Bevilacqua moved to dismiss, arguing that under Italian law it was improper to resort to service under Article 140 without first attempting other methods of service under Articles 138 and 139.

The court correctly rejected this argument. The Article 6 certificate showed, prima facie, that the service was proper, and in fact, it had something more than prima facie effect:

herefore, the duly executed return of process and certificate of service from the Central Authority is prima facie evidence that service was sufficient, leaving available to Bevilacqua only a claim that he was denied constitutional due process or that he was somehow prejudiced by the allegedly deficient service of process …

But of course, Bevilacqua couldn’t make this showing, as he had actual notice of the action. So the motion was denied.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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