Cepero v. Bank of N.Y. Mellon Trust Co., N.A.

• Decision Date: 10 February 2016
• Docket Number: No. 4D15–1162.,4D15–1162.
• Parties: Raul J. CEPERO a/k/a Raul De Jesus Cepero and Leslie Cepero, Appellants, v. The BANK OF NEW YORK MELLON TRUST COMPANY, N.A. f/k/a The Bank of New York Trust Company, N.A., As Trustee for Chase Mortgage Finance Corporation Multi–Class Mortgage Pass–Through Certificates Series 2006–S2, Appellee.
• Court: Florida District Court of Appeals

189 So.3d 204

Raul J. CEPERO a/k/a Raul De Jesus Cepero and Leslie Cepero, Appellants,
v.
The BANK OF NEW YORK MELLON TRUST COMPANY, N.A. f/k/a The Bank of New York Trust Company, N.A., As Trustee for Chase Mortgage Finance Corporation Multi–Class Mortgage Pass–Through Certificates Series 2006–S2, Appellee.

No. 4D15–1162.

District Court of Appeal of Florida, Fourth District.

Feb. 10, 2016.

Peter J. Snyder of Peter J. Snyder, P.A., Boca Raton, for appellants.

Roy A. Diaz of SHD Legal Group, P.A., Fort Lauderdale, for appellee.

WARNER, J.

Appellants, Raul and Leslie Cepero, appeal an order denying their motion to quash service of process. They claim that the court erred in concluding that the motion was not proper simply because their claim of insufficiency of service of process was not made in their initial motion to dismiss. We agree that the court erred in determining that they had waived their claim by failing to assert it in the motion to dismiss, as they amended the motion to include this claim prior to the court ruling on the motion. We thus reverse as to Leslie Cepero. We affirm as to Raul by application of the tipsy coachman rule,¹ as we reject his contention of improper service.

Appellee, The Bank of New York Mellon Trust Company, f/k/a The Bank of New York Trust Company, N.A., as Trustee for Chase Mortgage Finance Multi–Class Mortgage Pass–Through Certificates Series 2006–S2, filed a mortgage foreclosure complaint against the Ceperos in 2013. A verified return of service indicated that Raul was personally served on March 7, 2013, at an address that he had requested, but which was not his residence. Substituted service was made on his wife, Leslie, at the same time and address as Raul, as she was not at the address requested for service.

The Ceperos filed a motion for extension of time to respond to the complaint in April 2013, along with discovery requests and interrogatories for the Bank. They moved to dismiss the complaint in May 2013, but did not raise insufficiency of service of process. The Bank did not call up their motion to dismiss for hearing. Instead, litigation proceeded during the next year, with the Bank answering the discovery requests and moving for a default, which was denied, as well as propounding requests for admissions.

The Bank moved for summary judgment in December 2014, which was noticed to be heard January 23, 2015. On January 14, 2015, Raul filed an affidavit in opposition to summary judgment wherein he asserted lack of notice of any default and that the amounts claimed due by the Bank were incorrect. Then, on the day of the hearing on the Bank's motion for summary judgment,

189 So.3d 206

the Ceperos filed an amended motion to dismiss, a motion to quash service, and two affidavits in support of the motion to quash. This was the first time they raised insufficiency of service of process.

In their motion to quash, the Ceperos claimed they had not been properly served because "[t]he person who attempted to deliver the subject papers failed to inform both Defendants of the contents of the documents delivered, which is contrary to Florida Statute § 48.031(1)(a)...." They also challenged the attempted substitute service on Leslie because it was at a location that was not her usual place of abode and which she had not requested. They argued that this was not in compliance with section 48.031(2), Florida Statutes (2013). They also claimed the process server was not a disinterested person, as counsel for plaintiff has an ownership interest in the company which...