PAUL DE VICO, A/K/A PAUL DEVICO, APPELLANT,
v.
THE CHASE MANHATTAN BANK, AS TRUSTEE, ETC., ET AL., APPELLEES
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The court held that constructive service was improper because the lender did not make a conscientious effort to personally serve the appellant.
[1] Constructive service is improper when the plaintiff fails to make an honest and conscientious effort, reasonably appropriate to the circumstances, to acquire the informat…
[2] A diligent search affidavit is insufficient to justify constructive service when the record reflects an inadequate amount of reasonable efforts employed to personally ser…
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Join FLexlaw to unlock all legal intelligenceThe lender attempted to serve the appellant but was informed he was in Florida. Instead of further attempts, the lender proceeded with constructive se…
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PER CURIAM.
Paul De Vico appeals from an Order denying his Objection to Sale of Foreclosed Property and Motion for Relief from Final Judgment. We reverse.
After filing its Complaint to Foreclose Mortgage and Reestablish Note and Mortgage, the lender attempted service on the appellant at his address in New York on November 8, 2000, and November 15, 2000. The record reflects that, on both days, the process server was informed by the appellant’s doorman that the appellant was in Florida. Rather than making any additional attempts to personally serve the appellant, the lender instead swore to its Affidavit of Diligent Search on November 16, 2000, and proceeded with constructive service.
Subsequently, a Default and Summary Final Judgment for Foreclosure were entered against the appellant. The mortgaged property was purchased at auction by a third party on March 29, 2001. On April 11, 2001, the appellant filed his Objection to Sale and Motion for Relief from Final Judgment, contending that constructive service was improper. The trial court denied the Motion. When a plaintiff relies upon constructive service, “he should make an honest and conscientious effort, reasonably appropriate to the circumstances, to acquire the information necessary to fully comply with the controlling statutes.” McAlice v. Kirsch, 368 So. 2d 401, 403 (Fla. 3d DCA 1979) (quoting GMAZ v. King, 238 So. 2d 511 (Fla. 2d DCA 1970)). Here, the record reflects an insufficient amount of reasonable efforts employed to personally serve the appellant to justify using constructive service.
Based on the foregoing, the lack of reasonable efforts employed to serve the appellant should be apparent to any party that reviews the record, including those who may claim to be a bona fide purchaser of the property. Accordingly, we reverse and remand to the trial court with directions to vacate the Default, the Summary Final Judgment for Foreclosure, and the sale of the property to the third-party purchaser. Reversed and remanded with instructions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Delancy v. Tobias, 26 So. 3d 77 (Fla. 3d DCA 2010)…sonal service on the defendant. Grammer v. Grammer, 80 So. 2d 457, 460-61 (Fla.1955) (quoting McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 831 (1926)); see also Dubois v. Butler, 901 So. 2d 1029 (Fla. 4th DCA 2005); DeVico v. Chase Manhattan Bank, 823 So. 2d 175, 176 (Fla. 3d DCA 2002); Cross v. Kalina, 681 So. 2d 855 (Fla. 5th DCA 1996). Here, Delaney made “an honest and conscientious effort” to obtain information that would enable her to serve Tobias personally. She therefore demonstrated the requisite d…
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818 Asset Mgmt., Inc. v. Neiman, 22 So. 3d 659 (Fla. 3d DCA 2009)…ice and, instead, proceeded to substitute service. 3 . Neiman was the purchaser at the judicial sale. Thus, there is no concern over a purchase by an innocent third-party purchaser of the property in this case. Cf. De Vico v. Chase Manhattan Bank, 823 So.2d 175, 175-76 (Fla. 3d DCA 2002). 4 . It appears this certified mailing, which occurred on May 29, 2007, and one other— Neiman's certified mailing of a demand letter *663on February 9, 2007, forms the entire basis for the concurrence's sweeping conclusi…1 / 2
Authorities Cited
- McALICE v. Kirsch, 368 So. 2d 401 (Fla. 3d DCA 1979)
- Gmaz v. King, 238 So. 2d 511 (Fla. 2d DCA 1970)