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February 24, 2017 by admin

Jurisdiction — Service of process — Substitute service — Limited liability company — Trial court erred in denying defendant LLC’s motion to quash service of process where plaintiff served Secretary of State with substitute service under section 605.0117(3) but did not mail process through certified or registered mail, file return receipt, and submit affidavit of compliance, as required by section 48.161(a)

42
Fla. L. Weekly D435a
op of Form

Mortgage
foreclosure — Jurisdiction — Service of process — Substitute service —
Limited liability company — Trial court erred in denying defendant LLC’s
motion to quash service of process where plaintiff served Secretary of State
with substitute service under section 605.0117(3) but did not mail process
through certified or registered mail, file return receipt, and submit affidavit
of compliance, as required by section 48.161(a) — Although section 605.0117
authorizes service on the Secretary of State, a plaintiff must still comply
with notice requirements in section 48.161(1), and by failing to do so,
plaintiff did not effect valid service of process

GREEN
EMERALD HOMES, LLC, Appellant, v. NATIONSTAR MORTGAGE, LLC, Appellee. 2nd
District. Case No. 2D16-2552. Opinion filed February 17, 2017. Appeal pursuant
to Fla. R. App. P. 9.130 from the Circuit Court for Pasco County; Kimberly
Sharpe Byrd, Judge. Counsel: Brennan Grogan of Levine Law Group, Palm Beach
Gardens, for Appellant. Nancy M. Wallace of Akerman LLP, Tallahassee; William
P. Heller of Akerman LLP, Fort Lauderdale; and Eric M. Levine of Akerman LLP,
West Palm Beach, for Appellee.

(KELLY,
Judge.) In this foreclosure action, Green Emerald Homes, LLC, appeals from the
nonfinal order denying its motion to quash service of process. Green Emerald
argues that service was not accomplished because Nationstar Mortgage, LLC,
failed to comply with the notice requirements in section 48.161(1), Florida
Statutes (2014). We agree and reverse.

Nationstar
was unable to serve Green Emerald’s registered agent and managing member.
Consequently, Nationstar served the Florida Department of State with substitute
service under section 605.0117(3), Florida Statutes (2014). Green Emerald filed
a motion to quash service, contending that Nationstar was also required to mail
the process through certified or registered mail, file the return receipt, and
submit an affidavit of compliance, as required by section 48.161(1). In
opposition, Nationstar claimed that newly enacted section 605.0117 provided an
independent method of obtaining service on limited liability companies and
compliance with chapter 48 was no longer required. The trial court agreed with
Nationstar’s argument and denied the motion to quash service.

In
prior years, service of process on a limited liability company was made
pursuant to “chapter 48 or chapter 49, as if the limited liability company were
a partnership.” § 608.463(1)(a), Fla. Stat. (repealed 2015); see, e.g., Boatfloat
LLC v. Golia
, 915 So. 2d 288, 289 (Fla. 4th DCA 2005). “Substitute service
on an LLC was not expressly authorized until the legislature enacted and
amended various statutes effective January 1, 2014 and January 1, 2015.” Jupiter
House, LLC v. Deutsche Bank Nat’l Tr. Co.
, 198 So. 3d 1122, 1123 (Fla. 4th
DCA 2016) (citing ch. 2013-180, §§ 3, 29, Laws of Fla.); see § 605.0117(3)
(“If the process, notice, or demand cannot be served on a limited liability
company . . . , the process, notice, or demand may be served on the department
as an agent of the company.”); see also § 48.062(3) (providing that if
service of process cannot be completed on a registered agent, “service of
process may be effected by service upon the Secretary of State as agent of the
limited liability company”).

Under
the new statute, “[s]ervice with process, notice, or a demand on the department
may be made by delivering to and leaving with the department duplicate copies
of the process, notice, or demand.” § 605.0117(4). “Service is effectuated [for
such purposes] on the date shown as received by the department.” § 605.0117(5).
However, “none of the newly enacted LLC provisions furnish a method to
communicate the substitute service upon the Secretary to the defendant.” Jupiter
House
, 198 So. 3d at 1124. Because of this omission in chapter 605, the
provisions of chapter 48 must be applied where chapter 605 is silent on the
notice requirements. Id.

As
the Fourth District held in Jupiter House, although section 605.0117
authorizes service on the Secretary of State, a plaintiff must still comply
with the notice requirements in section 48.161(1). By failing to do so in this
case, Nationstar did not effect valid service of process. Accordingly, we
reverse the trial court’s order denying Emerald Green’s motion to quash
service.

Reversed.
(SILBERMAN and BLACK, JJ., Concur.)

* *
*

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