Green Emerald Homes LLC v. Green Tree Servicing LLC

• Decision Date: 15 November 2017
• Docket Number: No. 4D17–983,4D17–983
• Citation: 230 So.3d 607
• Parties: GREEN EMERALD HOMES LLC, Appellant, v. GREEN TREE SERVICING LLC, Armando Henriques Diogo, Ana E. Aguasana, Edith Aguas, Dionicia Stella Diogo, unknown spouse of Ana E. Aguas, a/k/a Ana Edith Aguas, Boca Gardens Homeowners Association, Inc., Mortgage Electronic Registration Systems, Inc., as nominee for Amnet Mortgage, Inc., d/b/a American Mortgage Network of Florida ; unknown tenant #1 n/k/a Jose Ingles, unknown tenant #2, Appellees.
• Court: Florida District Court of Appeals

230 So.3d 607

GREEN EMERALD HOMES LLC, Appellant,

v.GREEN TREE SERVICING LLC, Armando Henriques Diogo, Ana E. Aguasana, Edith Aguas, Dionicia Stella Diogo, unknown spouse of Ana E. Aguas, a/k/a Ana Edith Aguas, Boca Gardens Homeowners Association, Inc., Mortgage Electronic Registration Systems, Inc., as nominee for Amnet Mortgage, Inc., d/b/a American Mortgage Network of Florida ; unknown tenant #1 n/k/a Jose Ingles, unknown tenant #2, Appellees.

No. 4D17–983

District Court of Appeal of Florida, Fourth District.

November 15, 2017

Brennan Grogan of Levine Law Group, Palm Beach Gardens, for appellant.

No brief filed for appellees.

Per Curiam.

Green Emerald Homes, LLC, ("Green Emerald") appeals the denial of its motion to quash service of process and vacate the clerk's default in the underlying mortgage foreclosure action.The plaintiff below, Green Tree Servicing, LLC, ("GTS") attempted to serve Green Emerald through substitute service on the Secretary of State pursuant to section 48.181(1), Florida Statutes(2016).We reverse for two reasons.First, GTS failed to allege the requisite jurisdictional grounds for substitute service provided under section 48.181(1).Second, GTS failed to comply with the notice requirements under section 48.161(1), Florida Statutes(2016).

Section 48.062(3), Florida Statutes(2016), authorizes substitute service on a limited liability company ("LLC") through the Secretary of State if the plaintiff has already made reasonably diligent efforts to serve the LLC under sections 48.062(1) and (2).Jupiter House, LLC v. Deutsche Bank Nat'l Tr. Co., 198 So.3d 1122, 1123(Fla. 4th DCA2016).

In order to perfect substitute service through the Secretary of State, the complaint must allege one of two jurisdictional grounds provided under section 48.181(1).Green Emerald Homes, LLC v. Fed. Nat'l Mortg. Ass'n, 224 So.3d 799, 802(Fla. 2d DCA2017)(citingAlhussain v. Sylvia, 712 So.2d 806, 806(Fla. 4th DCA1998) ).Specifically, the complaint must allege that (i)the defendant is concealing his or her whereabouts or (ii)the defendant previously conducted business in Florida, but has now become a nonresident.Id.

Furthermore, the plaintiff must also comply with section 48.161(1).Jupiter House, LLC, 198 So.3d at 1124–25.Under section 48.161(1), the plaintiff must (i) send notice to the defendant, via certified or registered mail, that substitute service has been effected through the Secretary of State, (ii) file the return receipt from the defendant, and (iii) file an affidavit of compliance.Id. at 1123.

In this case, GTS's complaint merely alleges that Green Emerald owns the subject property, so GTS has failed to allege either of the jurisdictional grounds for substitute service provided under section 48.181(1).Furthermore, the record does not reflect that GTS complied with section 48.161(1) by (i)...