When Can a Foreclosure Complaint be Served via Publication?

Did you know that a bank can legally serve a defendant with a foreclosure complaint by publishing it in a newspaper? It’s true! If personal service of process is impossible, Florida Statute (F.S.) Chapter 49 allows constructive service of process (i.e., service by publication) in foreclosure actions. But there are some things to keep in mind.

What is the process that a Plaintiff must follow?

When a complainant decides to use constructive service, they should make a good-faith effort to find the necessary information to follow the law. This way, the defendant, if possible, will get a heads up about the suit. – Wolfe v. Stevens, 965 So. 2d 1257, 1259 (Fla. 2d DCA 2007). F.S. Chapter 49 lets service by publication happen only after the plaintiff, or someone acting on their behalf, files a sworn statement or verified pleading saying that they’ve tried hard to find the defendant but haven’t been successful.

A Plaintiff must make attempts to physically locate the defendant before publishing

Extraordinary steps to find the defendant’s whereabouts aren’t needed, but the plaintiff should make a honest and reasonable effort. “A diligent search for a defendant’s whereabouts involves asking people who might know where they are.” In a mortgage foreclosure action, one easy step in a diligent search is to look at the mortgage servicing records.

Here are some other things the plaintiff should do to locate the defendant for personal service, depending on the situation:

– Ask people who have the property.

– Check the records of the circuit court clerk about any transactions the defendants were involved in, as shown in the partial abstract they got during the foreclosure process.

– Check the records of the Florida Secretary of State if the defendant is known to be an officer, resident agent, or other person in charge.

– Check the phone book and city directory.

– Call the person who gave the deed to the defendant.

– Look for any agents who have a sign on the property saying it’s for sale.

– Talk to the defendant’s lawyer, neighbors, family, friends, or anyone who might know where they live.

– Go to the post office.

– If the defendant has kids, contact the local school board.

– Call the telephone information operator.

– Contact local utility companies.

– Ask the voter registration supervisor for info.

– Call the local police department.

Publication

If the defendant cannot be located after diligent efforts are made to locate him, then a notice of action must be published weekly for two weeks, and a proof of publication must be filed after the final publication. However, if the plaintiff does not perform a thorough search and inquiry, and does not document it in the affidavit for constructive service, the foreclosure might be voided.  In cases where there’s a challenge to constructive service, the trial court has to decide if the affidavit of search is legal and if the plaintiff did a good enough job searching to find the defendant.

Need a top-notch Palm Coast Area Foreclosure Defense Attorney?

Contact Palm Coast area foreclosure defense attorney Andrew J. Pascale today at 877-667-1211. This blog doesn’t give legal advice and is just for illustrative purposes.