FIRST HOME VIEW CORP., APPELLANT,
v.
JORDAN JOSEPH GUGGINO, APPELLEE
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First Home View Corporation, a bona fide purchaser at a foreclosure sale, appealed the trial court's decision to vacate the foreclosure judgment and sale after the homeowner challenged the validity of constructive service. The appellate court reversed, holding that the lender's diligent search efforts were legally sufficient to support constructive service.
The court reversed the trial court's order vacating the final judgment and foreclosure sale, holding 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.
[1] An affidavit of diligent search is facially sufficient to uphold service of process by publication when it demonstrates that reasonable efforts were made to locate the pa…
[2] A foreclosure judgment is voidable, not void, as to a bona fide purchaser when service by publication is based on a facially sufficient affidavit of diligent search, and…
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Join FLexlaw to unlock all legal intelligence“Constructive service of process is proper only if the party cannot obtain personal service of process.”
Establishes the foundational legal requirement that personal service must be impossible before constructive service is permissible
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Join FLexlaw to unlock all legal intelligenceA mortgage lender initiated foreclosure proceedings against the homeowner but could not personally serve him despite discovering two New York addresse…
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First Home View Corporation (“the bona fide purchaser”) appeals the trial court’s order granting Jordan Joseph Gug-gino’s (“the homeowner”) motion to vacate the foreclosure sale and final judgment. We reverse.
The homeowner’s mortgage lender (“the lender”) initiated foreclosure proceedings but was unable to personally serve him. The lender hired an investigator, who discovered the homeowner had two New York addresses, but personal service also failed at these addresses.
The investigator searched the homeowner’s credit information and employment. The investigator checked the motor vehicle department, corrections depart*165ment, postal service, and telephone companies for the homeowner’s whereabouts. Lastly, the investigator spoke with the homeowner’s neighbors, but to no avail. The lender was still unable to find the homeowner and serve him.
Subsequently, the lender filed affidavits of diligent search and constructive service. Upon review, the trial court allowed the lender to serve the homeowner by publication.
Thereafter, the lender obtained a final judgment of foreclosure. Over one year later, the bona fide purchaser purchased the property at a foreclosure sale. Then, about one month later, the homeowner moved to vacate the final judgment and the foreclosure sale. The trial court granted the homeowner’s motion, and the bona fide purchaser appeals.
Constructive service of process is proper only if the party cannot obtain personal service of process. See § 49.011, Fla. Stat. (2005). If the constructive 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 in vacating the final judgment and foreclosure sale.
Accordingly, we reverse the trial court’s order vacating the final judgment and foreclosure sale.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dian Lewis v. Fifth Third Mortg. Co., 38 So. 3d 157 (Fla. 3d DCA 2010)…to establish that an adequate search had been made to locate an address for service upon Lewis prior to effecting constructive service. The resultant foreclosure sale to the bona fide purchaser cannot be set aside. First Home View Corp. v. Guggino, 10 So. 3d 164 (Fla. 3d DCA 2009) (holding that trial court errs in vacating final judgment of foreclosure in sale of property to bona fide purchaser where homeowner is constructively served by publication and affidavit of diligent search is legally sufficient to…
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Martins v. The Oaks Master Prop. Owners Ass'n, Inc., 159 So. 3d 142 (Fla. 5th DCA 2014)…ny known or unknown party, upon which personal service cannot be effected, in an action or proceeding to enforce any [*146] legal or equitable lien or claim to any title or interest in real or personal property. See First Home View Corp. v. Guggino, 10 So. 3d 164, 165 (Fla. 3d DCA 2009). “[Because the lack of personal service implicates due process concerns, a plaintiff must strictly comply with the statutory requirements.” See Redfield Invs., A.V.V. v. Village of Pinecrest, 990 So. 2d 1135, 1138 (Fla. 3d DC…
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Howard v. Gualt, 259 So. 3d 119 (Fla. 4th DCA 2018)…at personal service, the contact with the neighbors, the two skip traces, and the trip to a retail establishment where the process server learned that the lessee had moved out in the middle of the night.” In First Home View Corp. v. Guggino, 10 So. 3d 164, 164 (Fla. 3d DCA 2009), the Third District held that due diligence was satisfied when a lender hired an investigator, who discovered the homeowner had two New York addresses, but attempts to personally serve him there failed. The investigator…
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- Rocky and Mary Giron v. Ugly Mortg., Inc., 935 So. 2d 580 (Fla. 3d DCA 2006)