Serving a Defendant in a Residential Foreclosure Action by Publication
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A residential mortgage foreclosure action is initiated in Florida by filing a verified complaint with the appropriate court. All named defendants will need to be notified of the lawsuit by being served process with a copy of the complaint and a summons. The defendants may be served by personal service or substituted service. If a defendant cannot be located, then service may be effected by constructive service, i.e., service by publication, which is governed by Chapter 49, Florida Statutes. If the plaintiff must serve a defendant by publication, it is imperative to strictly comply with the steps detailed below.
Step 1: Conduct A Diligent Search and Inquiry
Before a defendant can be served by constructive service, the plaintiff must make a diligent search and inquiry to locate the defendant. It is important for the plaintiff to check the local rules in the county where the foreclosure action is filed to determine if there are any procedural requirements. For example, in Clay, Duval and Nassau counties, a plaintiff must, at a minimum, conduct a search for the defendant in each of these five places:
- United States Post Office;
- Internet search or switchboard.com;
- Department of Motor Vehicle;
- Department of Corrections Inmate Search databases; and
- Letters to the Armed Forces of the U.S.: Certificate of Military Service & Military Verification Service.
The plaintiff is also required to file written proof of search efforts, such as payment receipts, printed search results, letters from companies/organizations/businesses and/or other proof of attempts to locate information on the defendant. See Instructions for Completing an Affidavit of Diligent Search and Service by Publication.
Some other places a plaintiff may search include:
- Last known place of employment;
- Names and address or relatives and contacts with those relatives, and inquiry as to defendant’s last known address;
- Regulatory agencies;
- Unions which the defendant may have worked or that govern his or her trade;
- Telephone listings to the last known locations of defendant’s residence;
- Information about defendant’s possible death;
- Highway Patrol records;
- Hospitals in the last known area;
- Utility companies in the last known area;
- Tax Assessor’s and Tax Collector’s Office in last known area; and
- Title IV-D (child support enforcement) agency records.
If the plaintiff is able to locate the defendant’s address, then the defendant must be served by personal or substituted service. It will then be unnecessary to proceed to Step 2.
Step 2: File Form 1.924, Affidavit of Diligent Search and Inquiry
If after diligent search and inquiry the defendant cannot be located, the plaintiff must file a sworn affidavit explaining all diligent efforts made to locate the defendant with the court. In the year 2010, in recognition that many defendants in foreclosure actions are served by publication, the Florida Supreme Court adopted Form 1.924, Affidavit of Diligent Search and Inquiry, to “help standardize affidavits of diligent search and inquiry and provide information to the court regarding the methods used to attempt to locate and serve the defendant.” In re Amendments To The Fla. Rules Of Civil Procedure, 44 So. 3d 555 (Fla. 2010).
Form 1.924, found in the Florida Rules of Civil Procedure, provides a list of possible actions to locate the current residence of the defendant and space for the affiant to check-off the applicable actions taken. The form also contains a catch-all section where the affiant can list all additional efforts made to locate the defendant. In addition, the form contains a section to describe “Attempts to Serve Process and Results,” as well as a section to check-off whether the affiant “inquired of the occupant of the premises whether the occupant knows the location of the borrower-defendant” and space to describe the results. The form must be sworn or affirmed under oath, signed by the person who actually conducted the diligent search and inquiry, such as a process server, and witnessed by a notary public. The form reflects the minimum requirements for a sworn statement of diligent search and inquiry, provided by Section 49.041, Florida Statutes, including:
(1) That 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; and
(2) Whether such person is over or under the age of 18 years, if his or her age is known, or that the person’s age is unknown; and
(3) In addition to the above, that the residence of such person is, either:
- Unknown to the affiant; or
- In some state or country other than this state, stating said residence if known; or
- In the state, but that he or she has been absent from the state for more than 60 days next preceding the making of the sworn statement, or conceals himself or herself so that process cannot be personally served, and that affiant believes that there is no person in the state upon whom service of process would bind said absent or concealed defendant.
Step 3: A “Notice of Action” Will be Issued
Not later than sixty (60) days after Form 1.924 is filed with the court, the clerk or judge will issue a “Notice of Action.” The Notice of Action will include:
- The names of the known natural defendants; the names, status and description of the corporate defendants; a description of the unknown defendants who claim by, through, under or against a known party which may be described as “all parties claiming interests by, through, under or against (name of known party)” and a description of all unknown defendants which may be described as “all parties having or claiming to have any right, title or interest in the property herein described”;
- The nature of the action or proceeding in short and simple terms, i.e., mortgage foreclosure;
- The name of the court in which the action or proceeding was instituted and an abbreviated title of the case; and
- The description of the real property proceeded against. 49.08, Fla. Stat.
Step 4: Publish the Notice of Action in a Newspaper
After Form 1.924 has been filed with the court and a notice of action is issued, the plaintiff must publish the Notice of Action in a newspaper. In most type of cases, the Notice of Action must be published for four (4) consecutive weeks. However, in foreclosure cases, the Notice of Action must only be published once each week for two (2) consecutive weeks, in some newspaper published in the county where the court is located. § 49.10(1)(c), Fla. Stat.
The newspaper must be printed and published periodically once a week or more often, containing at least 25% of its words in English, entered or qualified to be admitted and entered as periodicals matter at a post office in the county where published, for sale to the public generally, available to the public generally for the publication of official or other notices and customarily containing information of a public character or of interest or of value to the residents or owners of property in the county where published, or of interest or of value to the general public. § 50.011, Fla. Stat. The newspaper must also have been in existence for one (1) year at the time of publication. § 50.031, Fla. Stat. If, however, the county has a total population of more than one (1) million as reflected in the 2000 Official Decennial Census of the United States Census Bureau, as shown on the official website of the United States Census Bureau, the newspaper must be published a minimum of five (5) days a week, exclusive of legal holidays, and have been in existence and published a minimum of five (5) days a week, exclusive of legal holidays, for one (1) year. The actual costs charged by the newspaper may be charged as costs in the foreclosure action. § 702.035, Fla. Stat.
Step 5: File Proof of Publication
After the Notice of Action is published in the appropriate newspaper, an affidavit must be filed with the court to show proof of publication. The affidavit must be completed by the owner, publisher, editor, business manager, foreman, or other officer or employee of the newspaper having knowledge of the publication. The affidavit must set forth the dates of each publication and have a copy of the advertisement attached. § 49.10(2), Fla. Stat.
Step 6: Defendant has 30 Days to File Defenses
The defendant is required to file written defenses with the clerk of the court and serve a copy on the plaintiff or plaintiff’s lawyer within thirty (30) days after the first publication of the Notice of Action. § 49.09, Fla. Stat. If the defendant fails to file written defenses in the thirty (30) day period, the plaintiff can move for a default foreclosure judgment.
Failure to Comply With Requirements
The plaintiff must strictly comply with the requirements for constructive service to ensure the defendant is notified of the foreclosure proceeding. If the defendant moves to set aside a foreclosure judgment by challenging constructive service, the trial judge has the duty of determining if the affidavit of diligent search and inquiry is legally sufficient, and whether there is competent substantial evidence to support that the plaintiff actually conducted an adequate search to locate the defendant. The test for a diligent search is whether the plaintiff “employed the knowledge at his command, made diligent inquiry and exerted an honest and conscientious effort appropriate to the circumstance to acquire the information necessary to enable him to effect personal service on the defendant.” See Howard v. Gualt, 259 So. 3d 119 (Fla. 4th DCA 2018) (holding three attempts at service at addresses found on Sunbiz.org, without performing a “skip trace or a comparable method, or search of phone bills, credit information, or the DMV, etc.” was not enough).
If the court finds that the affidavit is defective, or the diligent search is deficient, then the foreclosure judgment will be void or voidable. The judgment is void if constructive service was so defective that it amounted to no notice of the proceedings; the judgment is voidable if the irregular or defective service actually gave notice of the proceedings. See Shepheard v. Deutsche Bank Tr. Co. Americas, 922 So. 2d 340 (Fla. 5th DCA 2006) (holding the foreclosure judgment was void because the plaintiff did not conduct a diligent search in strict compliance with the statute and the defendant did not have notice of the proceedings).
Constructive service, i.e., publication, is sufficient to fulfill the notice requirement in an action for residential mortgage foreclosure, if done properly. Since many defendants in Florida are served by publication in a residential mortgage foreclosure, it is imperative that lenders are aware and follow the above-mentioned requirements. Lenders must also check the local rules to ensure they are complying with any additional procedural requirements.
- Austin B. Calhoun, Esquire
- Melissa Murrin, JD Candidate 2021