Opinion
Case No. 5D20-2485
02-18-2022
David M. SANTIAGO, Appellant, v. WILMINGTON TRUST, NATIONAL ASSOCIATION, not in Its Individual Capacity, but Solely AS TRUSTEE OF MFRA TRUST 2015-1, Carrie Santiago a/k/a Carrie A. Santiago, and Spacely Space Sprockets Investments, LLC, Appellees.
Andrew B. Greenlee, of Andrew B. Greenlee, P.A., Sanford, and Anthony N. Legendre, II, of Law Offices of Legendre & Legendre, PLLC, Maitland, for Appellant. Shaib Y. Rios, of Brock & Scott, PLLC, Ft. Lauderdale, for Appellee, Wilmington Trust, National Association. No Appearance for Other Appellees.
Andrew B. Greenlee, of Andrew B. Greenlee, P.A., Sanford, and Anthony N. Legendre, II, of Law Offices of Legendre & Legendre, PLLC, Maitland, for Appellant.
Shaib Y. Rios, of Brock & Scott, PLLC, Ft. Lauderdale, for Appellee, Wilmington Trust, National Association.
No Appearance for Other Appellees.
LAMBERT, C.J.
David M. Santiago appeals the order entered by the trial court after an evidentiary hearing that denied his omnibus motion to: (1) quash constructive service of process; (2) set aside the final judgment of foreclosure; (3) vacate the default entered by the clerk of court; and (4) vacate the certificate of sale and certificate of title issued following the foreclosure sale. For the following reasons, we reverse the order in its entirety.
BACKGROUND
On May 16, 2018, Appellee's predecessor-in-interest, Wells Fargo Bank, N.A., ("Wells Fargo"), filed a verified complaint against Santiago to foreclose a mortgage on residential real property owned by him and his ex-wife in Orlando, Florida. Efforts were made by Wells Fargo shortly after suit was filed to personally serve Santiago with process at the subject residence, as well as at other locations, as indicated in the July 9, 2018 affidavit of diligent search and inquiry from the process server who had been hired on behalf of Wells Fargo to serve Santiago. Subsequently to the execution of this affidavit, no additional efforts were made to personally serve Santiago.
In April 2019, nine months after the process server had executed his aforementioned affidavit, Wells Fargo's counsel executed and filed his own "Affidavit for Service by Publication." Counsel attached to his affidavit the earlier affidavit from the process server. Counsel also averred in his affidavit that, according to the process server's affidavit, Santiago's residence is "unknown" and that counsel was unable to determine if Santiago "is living or dead." Wells Fargo thereafter caused a notice of action to be published.
After Santiago failed to file a response to the complaint, Wells Fargo moved for and obtained a default against Santiago from the clerk of court. It then moved for the entry of a final summary judgment of foreclosure, which was granted following a hearing. The mortgaged property was thereafter sold at foreclosure sale to a third-party purchaser, to whom the clerk of court issued a certificate of title.
Santiago was not present at the summary judgment hearing. The trial court also granted a motion substituting Appellee for Wells Fargo as the plaintiff.
Ten days after the certificate of title issued, Santiago filed the subject motion, with supporting affidavit, challenging the sufficiency of the affidavit for service of process by publication and detailing how, in his view, Wells Fargo had failed to conduct a diligent search to locate and personally serve him with process before resorting to service by publication. Santiago argued that, resultingly, service of process against him was defective, the clerk's default should be set aside as improvidently entered, the later final judgment of foreclosure was void, and the certificates of sale and title issued following the court-ordered foreclosure sale should be vacated. Following an evidentiary hearing, the trial court entered the unelaborated written order now under review, denying Santiago's motion. This appeal ensued.
ANALYSIS
We begin our analysis with the recognition that, under sections 49.011(1) and 49.021(1), Florida Statutes (2019), service of process upon any known natural person in a mortgage foreclosure proceeding can be obtained through publication, provided that it is first shown that personal service of process cannot be had. Thus, Appellee's predecessor, Wells Fargo, was not precluded from serving process on Santiago by publication; however, "[b]ecause the lack of personal service implicates due process concerns, a plaintiff must strictly comply with the statutory requirements [before serving process by publication]." Martins v. Oaks Master Prop. Owners Ass'n , 159 So. 3d 142, 146 (Fla. 5th DCA 2014) (quoting Redfield Invs., A.V.V. v. Vill. of Pinecrest , 990 So. 2d 1135, 1138 (Fla. 3d DCA 2008) ).
The statutory requirements for obtaining valid service of process by publication on a natural person are set forth in section 49.041, Florida Statutes. Prior to serving process by publication, this statute requires that, among other things, the plaintiff, or his or her agent or attorney, provide a sworn statement showing "[t]hat diligent search and inquiry have been made to discover the name and residence of such person, and that the same is set forth in said sworn statement as particularly as is known to the affiant." § 49.041(1), Fla. Stat. A failure by the plaintiff to strictly adhere to the requirements of section 49.041 results in the trial court lacking jurisdiction over the defendant. See Shepheard v. Deutsche Bank Tr. Co. Ams. , 922 So. 2d 340, 343 (Fla. 5th DCA 2006) ("The failure to strictly adhere to the statutes’ requirements deprives the court of jurisdiction over the defendant improperly served." (citing Anthony v. Gary J. Rotella & Assocs., P.A. , 906 So. 2d 1205, 1207 (Fla. 4th DCA 2005) )).
The statute also requires that the sworn statement indicate: whether the person is over or under the age of eighteen years, if his or her age is known, or that the person's age is unknown; and that the residence of the person is either unknown to the affiant, in some state or county other than Florida, stating the residence if known, or that the residence of the person is in Florida, but that the person has either been absent for more than sixty days preceding the making of the sworn statement, or is concealing themselves so that process cannot be personally served, and that the affiant believes that there is no person in Florida upon whom service of process would bind the absent or concealed defendant. See § 49.041(2) –(3), Fla. Stat.
Where, as here, the validity of the service of process by publication is disputed, a trial court, in determining whether such service was properly obtained, is tasked with resolving: (1) whether the affidavit of diligent search filed pursuant to section 49.041 is legally sufficient and (2) if the plaintiff actually conducted an adequate search to locate the defendant. Martins , 159 So. 3d at 146 (quoting First Home View Corp. v. Guggino , 10 So. 3d 164, 165 (Fla. 3d DCA 2009) ). In deciding if a diligent search and inquiry to locate a defendant for personal service was performed, a trial court must evaluate whether the plaintiff "reasonably employed knowledge at his command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstances, to acquire the information necessary to enable him to effect personal service on the defendant." Id. (quoting McDaniel v. McElvy , 91 Fla. 770, 108 So. 820, 831 (1926) ).
At the hearing held on Santiago's motion, the uncontroverted evidence presented to the trial court, consisting of emails, Wells Fargo's own records, and testimony from both Santiago and a representative of Wells Fargo's loan servicer, indicated that during the time from June 2018, when Wells Fargo attempted personal service of process on Santiago, through April 2019, when Wells Fargo's attorney filed his affidavit as the prerequisite for service of process by publication, that Wells Fargo and Santiago were in direct communication. More specifically, Wells Fargo representatives and Santiago were having phone conversations and emails with each other about loss mitigation and other matters.
We also note that the process server who executed the July 9, 2018 affidavit that was relied upon or used by Wells Fargo in April 2019 in support of serving process on Santiago by publication did not testify at this hearing.
Despite these communications, when Wells Fargo ultimately decided in April 2019 to effectuate service of process on Santiago by publication, it made no effort to advise Santiago that it had previously filed the foreclosure suit, nor did it attempt to contact him regarding service of process. Under these specific circumstances, we conclude that a diligent search to personally locate Santiago just prior to serving him with process by publication was not performed. See Miller v. Partin , 31 So. 3d 224, 228 (Fla. 5th DCA 2010) (recognizing that, while exceptions might exist, when a plaintiff seeks to serve an individual with process by publication, a diligent search and inquiry would include talking to the neighbors or trying to contact the person to be served by phone or by mail); Shepheard , 922 So. 2d at 344 ("In a mortgage foreclosure action, one obvious step in a diligent search is to research mortgage servicing records." (citing Reina v. Barnett Bank, N.A. , 766 So. 2d 290, 291 (Fla. 4th DCA 2000) )). Stated somewhat differently, Wells Fargo, being in contemporaneous, direct communication with Santiago, did not exert the requisite "honest and conscientious effort appropriate to the circumstances to acquire the information necessary" to effect personal service upon Santiago. See Martins , 159 So. 3d at 146 (quoting McDaniel , 108 So. at 831 ).
We further conclude that reversal is warranted because the affidavit for service by publication prepared and filed by counsel for Wells Fargo was legally insufficient for being patently inaccurate. See id. at 147 (reversing the trial court's order denying the appellant's motion to vacate the final judgment of foreclosure, void the foreclosure sale, vacate the default, and quash service of process when the plaintiff's affidavit of diligent search was "patently inaccurate"). As previously indicated, counsel swore that, according to the July 2018 affidavit of the process server, Santiago's residence was "unknown." Counsel also averred that he was unable to determine if Santiago was living or dead.
However, again, the uncontradicted evidence at the hearing held on Santiago's motion showed that during April 2019, when Wells Fargo's counsel filed his affidavit and attempted to serve Santiago by publication, a Wells Fargo representative was communicating directly with Santiago by phone and by email and was aware that Santiago's residence was the mortgaged property. See Benavente v. Ocean Vill. Prop. Owners Ass'n , 260 So. 3d 313, 317 (Fla. 4th DCA 2018) (concluding that the affidavit for service by publication was facially defective for being "patently inaccurate" when it failed to disclose that the plaintiff was aware of the defendant's residential address); Godsell v. United Guar. Residential Ins. , 923 So. 2d 1209, 1215 (Fla. 5th DCA 2006) (finding that a final judgment of foreclosure was void where the constructive service on the defendant was ineffective due to the plaintiff's failure to perform a diligent search and the failure of the affidavit of diligent search to include, inter alia, any reference to the defendant's possible Canadian address).
Santiago also maintained throughout this proceeding that, as evidenced by the respective records of the Orange County Tax Collector and the Property Appraiser that were presented at the hearing, the mortgaged property was, at all times pertinent, his homestead and his residence.
Accordingly, we reverse the order denying Santiago's motion and remand with directions to the trial court to vacate the clerk's default, the final judgment of foreclosure, and the certificates of sale and title.
REVERSED and REMANDED, with directions.
WALLIS, J., and SAWAYA, T.D., Senior Judge, concur.