ROCKY AND MARY GIRON, APPELLANTS,
v.
UGLY MORTGAGE, INC., ET AL., APPELLEES
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The Girons appealed the denial of their motion to set aside a foreclosure judgment, arguing that constructive service of process was defective due to an insufficient affidavit of diligent search. The appellate court affirmed the trial court's decision, finding that the affidavit was legally sufficient and that the mortgage company conducted an adequate search before resorting to constructive service.
The trial court properly found the affidavit of diligent search legally sufficient and determined that Ugly Mortgage conducted an adequate search to locate the Girons. Constructive service of process was therefore proper, and the foreclosure judgment was valid.
[1] Constructive service of process is permissible only when personal service cannot be achieved and the action falls within the categories enumerated in the relevant statute…
[2] Upon a challenge to constructive service, the trial court must assess both the legal sufficiency of the affidavit of diligent search and the adequacy of the plaintiff's e…
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Join FLexlaw to unlock all legal intelligence“Constructive service of process is proper only if personal service cannot be obtained and only in the kinds of cases listed in section 49.011, Florida Statutes (2005).”
Establishes the foundational requirement for constructive service and that it is limited to specific case types.
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Join FLexlaw to unlock all legal intelligenceThe Girons purchased real property in 1996 and later obtained a second mortgage that was assigned to Ugly Mortgage Company. After the Girons stopped p…
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SUAREZ, J.
The Girons appeal the denial of their motion to set aside a foreclosure judgment and judicial sale of real property based on defective constructive service of process. We affirm.
The Girons purchased the real property in question in 1996. Thereafter, they entered into a second mortgage which was eventually assigned to Ugly Mortgage Company. The Girons stopped paying on the second mortgage. The Girons claim to have moved from the residence the day prior to Hurricane Katrina and claim not to have moved back due to extensive damage. They also claim to have visited the property daily during the time period that Ugly Mortgage claims to have been attempting service of process.
Ugly Mortgage filed an action to foreclose the mortgage. Ugly Mortgage alleges it was unable to personally serve the Girons. It filed an affidavit of diligent search and claimed to have perfected constructive service pursuant to section 49.011, Florida Statutes (2005).
A Final Summary Judgment of Foreclosure was entered and the property was sold pursuant to court order. The Girons then filed a Motion to Set Aside the Foreclosure arguing the Affidavit of Diligent Search filed by Ugly Mortgage was defective and, therefore, constructive service of process was improper. At the first hearing, the trial judge ordered that title to the property not be transferred, and ordered discovery taken as to constructive service. After an evidentiary hearing, the trial judge denied the Girons’ Motion to Set Aside the Foreclosure. He issued a lengthy detailed order finding the affidavit legally sufficient and finding that the mortgage company conducted an adequate search. The trial judge also detailed in his order that he did not find credible the Girons’ testimony that they had a contract pending to sell the house as well as other portions of their testimony. The Girons appealed. Constructive service of process is proper only if personal service cannot be obtained and only in the kinds of cases listed in section 49.011, Florida Statutes (2005).
If there is a challenge to constructive service, the trial court has the duty of determining not only if the affidavit of diligent search is legally sufficient but also whether the plaintiff conducted an adequate search to locate the defendants. See Southeast & Assoc., Inc. v. Fox Run Homeowners Assoc., Inc., 704 So. 2d 694 (Fla. 4th DCA 1997).
Our standard of review determines whether there was competent substantial evidence to support the decision of the trial judge. Hudson v. Pioneer Fed. Sav. & Loan Assoc., 516 So .2d 339 (Fla. 1st DCA 1987).
We affirm the trial court’s order concluding that the Affidavit of Diligent Search is legally sufficient, and we find the trial court’s well reasoned decision that the Plaintiffs conducted an adequate search to locate the Girons prior to constructive service is supported by more than competent substantial evidence.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Redfield Invs. v. Vill. OF Pinecrest, 990 So. 2d 1135 (Fla. 3d DCA 2008)…to constructive service, the trial court has the duty to determine not only whether the affidavit of search is legally sufficient, but also whether the plaintiff conducted an adequate search to locate the defendant. See Giron v. Ugly Mortgage, Inc., 935 So. 2d 580, 582 (Fla. 3d DCA 2006); Se. & Assocs., Inc. v. Fox Run Homeowners Ass’n, 704 So. 2d 694, 696 (Fla. 4th DCA 1997). Although Pinecrest made some efforts to locate the defendant, Redfield, or an officer or agent, Redfield argues — persuasively in our…
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Dian Lewis v. Fifth Third Mortg. Co., 38 So. 3d 157 (Fla. 3d DCA 2010)…davit of diligent search, this does not end the inquiry. Shepheard, 922 So. 2d at 343. The trial court must still determine whether the mortgage holder actually conducted a diligent search. Redfield, 990 So. 2d at 1138; Giron v. Ugly Mortgage, Inc., 935 So. 2d 580, 582 (Fla. 3d DCA 2006); Demars v. Vill. of Sandalwood Lakes Homeowners Ass’n, 625 So. 2d 1219, 1224 (Fla. 4th DCA 1993). “[W]hen a plaintiff seeks service of process by publication, ‘an honest and conscientious effort, reasonably appropriate to the…1 / 2
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First Home View Corp. v. Guggino, 10 So. 3d 164 (Fla. 3d DCA 2009)…service is disputed, then the trial court has the duty of determining: (1) if the affidavit of diligent search is legally sufficient; and (2) whether the plaintiff conducted an adequate search to locate the defendants. Giron v. Ugly Mortgage, Inc., 935 So. 2d 580, 582 (Fla. 3d DCA 2006). Here, the record is clear that the affidavit of diligent search was legally sufficient and that the lender conducted an adequate search to locate the homeowner prior to constructive service. Therefore, the trial court erred…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Outing v. State, 704 So. 2d 694 (Fla. 2d DCA 1997)
- Hockman v. Joseph U. Moore, Inc., 516 So. 2d 339 (Fla. 2d DCA 1987)