ENRIQUE REINA, APPELLANT,
v.
BARNETT BANK, N.A., FORMERLY BARNETT BANK OF JACKSONVILLE, N.A., AS SUCCESSOR BY MERGER WITH BARNETT BANK OF SOUTH FLORIDA, N.A., AND HERNAN ROSAS, ET AL., APPELLEES
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Enrique Reina appeals a foreclosure judgment entered against him after the bank used constructive service of process. The court affirmed the judgment, holding that while the bank's diligent search efforts may have been incomplete, the service was not so defective as to be void, and Reina's delay in challenging the judgment provided an independent basis for denial.
The judgment is not void because the Bank's constructive service, while potentially incomplete, was not so defective as to constitute no notice whatsoever. At most, the judgment was voidable rather than void. Additionally, the trial court did not abuse its discretion in denying the motion based on Reina's substantial delay in filing the motion and requesting a hearing.
[1] A judgment is void when service of process is so defective that it amounts to no notice of the proceedings.
[2] Failure to strictly comply with applicable service of process statutes renders a subsequent judgment voidable, not void.
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“A judgment is void when service of process is so defective that it amounts to no notice of the proceedings. Floyd v. Federal Nat'l Mortgage Ass'n, 704 So.2d 1110, 1112 (Fla. 5th DCA 1998). In contrast, failure to strictly comply with the applicable service of process statutes renders a subsequent judgment voidable.”
Establishes the critical distinction between void and voidable judgments, the legal standard governing the case.
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Join FLexlaw to unlock all legal intelligenceThe Bank filed a mortgage foreclosure complaint in September 1997 against Reina and his wife. The sheriff's return indicated the property appeared vac…
The full statement of facts, procedural history, and disposition for this case are member content.
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POLEN, J.
Enrique Reina timely appeals from a nonfinal order denying his motion to quash service of process and to vacate the subject default final judgment. He argues the judgment was void by virtue' of Barnett Bank, N.A.’s (“Bank”) failure to make a diligent search and inquiry into his whereabouts. We disagree and affirm.
On September 12, 1997, the Bank filed a complaint to foreclose a mortgage, executed by Reina and his wife, on a condominium owned by Reina. The sheriffs return of service affidavit indicated that no service had been made at the subject condominium. It also indicated that a diligent search and inquiry into Reina’s whereabouts had been made, but that the property appeared to be vacant upon visual inspection.
Thereafter, the Bank filed its affidavit of due and diligent search. The affidavit specified that the Bank attempted to locate Reina’s last known residence by making inquiries of the United States Postal Office, directing the Bank to research its mortgage service records, reviewing the sheriffs return of no service, researching telephone directories, and questioning Rei-na’s former neighbors. The Bank then published notice of action in the Broward Daily Business Review on October 24 and 31, 1997, and filed proof of publication.
On November 24, 1997, the Bank served its motion for summary judgment, as well as a motion for default against Reina for failure to file an answer or responsive pleading. The clerk entered a default against Reina. Subsequently, the trial court entered summary judgment of foreclosure. In the summary judgment, the court found that legal service of process had been made on Reina. The condominium was later sold to the Bank at a judicial sale.
Approximately ten months later, Reina served his motion to quash service of process and to vacate the default final judgment. In the motion and his affidavit attached to same, he alleged that the Bank at all material times knew of his whereabouts because he maintained a checking account there. He also alleged that the Bank could have discovered his whereabouts had it called his condominium association or his realtor. He reiterated these allegations at the subsequent hearing on his motion. He also explained he delayed filing the motion because he had been attempting to resolve the matter privately with the Bank’s attorney. He did not adequately explain why it took him an additional six months before requesting a hearing on his motion.
The Bank refuted Reina’s allegations at the hearing. It argued that it had closed his checking account in June, 1997. Alternatively, it argued that the final judgment was only voidable, not void, as a result of the Bank’s failure to ask the condominium association about Reina’s whereabouts.
The trial court denied the motion based on Reina’s delay in filing same, and his delay in requesting a hearing. This appeal followed.
Reina argues that the court should have quashed the Bank’s constructive service of process based on the Bank’s failure to make diligent inquiries into his where abouts. He argues that the lack of diligent inquiry made the service void.
We disagree. A judgment is void when service of process is so defective that it amounts to no notice of the proceedings. Floyd v. Federal Nat’l Mortgage Ass’n, 704 So. 2d 1110, 1112 (Fla. 5th DCA 1998). In contrast, failure to strictly comply with the applicable service of process statutes1 renders a subsequent judgment voidable. Id. Our review of the record shows that the Bank’s constructive service was not so defective that it amounted to no notice at all. While the Bank did not make any inquiries of Reina’s condominium association, nor review Reina’s bank records, we hold the judgment at most was voidable. See Demars v. Village of Sandalwood Lakes Homeowners Ass’n, 625 So. 2d 1219 (Fla. 4th DCA 1993).
This notwithstanding, Reina waited months after he learned of the judgment and sale to file his motion and set a hearing. As such, we cannot say that the court abused its discretion in denying the motion to vacate the default based on his delay. See World’s Finest Prods., Inc. v. Carpenter, 564 So. 2d 626 (Fla. 4th DCA 1990).
AFFIRMED.
STONE and GROSS, JJ., concur. . In this case, the Bank relied on sections 49.011(1), 49.031, and 49.041, Florida Statutes (1997).
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Nigel Shepheard and Heather Shepheard v. Deutsche Bank Tr. Co. Americas, 922 So. 2d 340 (Fla. 5th DCA 2006)…ow the defendant’s location. Dor Cha, Inc. v. Hollingsworth, 876 So. 2d 678, 680 (Fla. 4th DCA 2004). In a mortgage foreclosure action, one obvious step in a diligent search is to research mortgage servicing records. See Reina v. Barnett Bank, N.A., 766 So. 2d 290, 291 (Fla. 4th DCA 2000). Deutsche Bank knew that the She-pheards paid the mortgage until November 2002; therefore, it should have questioned Homecomings, which serviced the mortgage and possessed the Shepheards’ correct address. Its failure to do s…
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Dian Lewis v. Fifth Third Mortg. Co., 38 So. 3d 157 (Fla. 3d DCA 2010)…Sw. Fla., 647 So. 2d 211, 213 (Fla. 2d DCA 1994). “Such improper service renders the judgment either void or voidable.” Shepheard, 922 So. 2d at 345; see also Decker v. Kaplus, 763 So. 2d 1229, 1230 (Fla. 5th DCA 2000); Reina v. Barnett Bank, N.A., 766 So. 2d 290, 291 (Fla. 4th DCA 2000). If the service is irregular or defective but the defendant actually receives notice of the proceedings, the judgment is voidable. Shepheard, 922 So. 2d at 345; Decker, 763 So. 2d at 1230. However, where the service of proce…
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W. Int'l, Inc. v. Peerless Developers, LLC, 916 So. 2d 50 (Fla. 3d DCA 2005)…So. 526, 535 (1939)(“the affidavit and service by publication being valid and sufficient on the face [*51] of the record, the final decree and the action taken thereunder were not absolutely void but merely voidable.”); Reina v. Barnett Bank, N.A., 766 So. 2d 290, 292 (Fla. 4th DCA 2000)(“failure to strictly comply with the applicable service of process statutes renders a subsequent judgment voidable.” (footnote omitted)); See Se. & Assocs., Inc. v. Fox Run Homeowners Ass’n, Inc., 704 So. 2d 694, 696 (Fla. 4…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Demars v. Vill. OF Sandalwood Lakes Homeowners Ass'n, Inc., 625 So. 2d 1219 (Fla. 4th DCA 1993)
- Shochet v. Amtrust Bank, 704 So. 2d 1110 (Fla. 4th DCA 1998)
- World's Finest Prods., Inc. v. Carpenter, 564 So. 2d 626 (Fla. 4th DCA 1990)