JAMES B. HUNTER, EILEEN A. HUNTER, HIS WIFE, RICHARD JEDLICKA, AND BARBARA JEDLICKA, HIS WIFE, ET AL., APPELLANTS,
v.
GLENDALE FEDERAL SAVINGS AND LOAN ASSOCIATION, APPELLEE
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The Florida Fourth District Court of Appeal reversed a foreclosure judgment because the lender failed to comply with statutory requirements for constructive service of process. The court found that the lender's affidavit claiming diligent search for the defendants' address was contradicted by testimony showing the affiant made no actual effort to verify where the defendants lived.
The court held that Glendale's minimal effort—merely referencing an address from its file without verification—did not satisfy the diligent search and inquiry requirement of § 49.041. The law requires strict compliance with constructive service statutes, and the burden of proof rests on the plaintiff to demonstrate compliance.
[1] A final judgment of foreclosure and order confirming a sale and lis pendens may be set aside when constructive service of process is defective.
[2] A diligent search and inquiry for the purpose of constructive service of process requires more than referring to an address in a file without attempting to verify it.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Glendale's minimal effort toward discovery of a residential address for the appellants does not meet the diligent search and inquiry requisites of section 49.041 Fla.Stat. (1987).”
Establishes that the lender's efforts were insufficient to comply with statutory requirements
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Join FLexlaw to unlock all legal intelligenceGlendale Federal Savings and Loan Association filed a foreclosure action against the Hunters and Jedlickas. To effect service, Glendale submitted an a…
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PER CURIAM.
We reverse the lower court’s denial of appellants' motion to set aside a final judgment of foreclosure and order confirming a sale and lis pendens because the record supports that the constructive service of process attempted on the appellants was defective. According to the affidavit submitted by Glendale, pursuant to section 49.041 Fla.Stat. (1987), on diligent search and inquiry, Glendale determined that all appellants resided at the same New York address. Contrary to the statements m this affidavit, the affiant testified that she had made no effort to determine whether any of the appellants resided at the stated address and, in fact, she did not know where they resided. She simply referred to an address in the Glendale file and made no attempt to verify a residential address for the defendants. . Glendale’s minimal effort toward discovery of a residential address for the appellants does not meet the diligent search and inquiry requisites of section 49.041 Fla.Stat. (1987).
The law requires strict compliance with the statutory provisions governing constructive service of process and places the burden of proof of compliance on the plaintiff. McAlice v. Kirsch, 368 So. 2d 401 (Fla. 3rd DCA 1979).
The testimony of Glendale’s affiant establishes that service was defective and we therefore reverse. Meiliunas v. O’Leary, 483 So. 2d 509 (Fla. 4th DCA 1986); Robinson v. Cornelius, 377 So. 2d 776 (Fla. 4th DCA 1979); Callaghan v. Callaghan, 337 So. 2d 986 (Fla. 4th DCA 1976); Permenter v. Feurtado, 541 So. 2d 1331 (Fla. 3rd DCA 1989).
REVERSE and REMAND.
DOWNEY and WALDEN, JJ„ and McNULTY, JOSEPH P., (Retired), Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- McALICE v. Kirsch, 368 So. 2d 401 (Fla. 3d DCA 1979)
- Callaghan v. Blanche D. Callaghan, 337 So. 2d 986 (Fla. 4th DCA 1976)
- Robinson v. Cornelius, 377 So. 2d 776 (Fla. 4th DCA 1979)
- Baker v. Baker, 377 So. 2d 776 (Fla. 4th DCA 1979)
- Permenter v. Feurtado, 541 So. 2d 1331 (Fla. 3d DCA 1989)
- Ferguson v. McWILLIAMS, 483 So. 2d 509 (Fla. 4th DCA 1986)
- Reg B. Meiliunas v. O'Leary, 483 So. 2d 509 (Fla. 4th DCA 1986)