The pitfalls of substitute service were reinforced Wednesday, yet again resulting in a void judgment, unwinding an association’s lien foreclosure action, the resulting sale, and the certificate of title!

In Benavente v. Ocean Village POA, Inc., Case No. 4D18-1819 (Fla. 4th DCA November 28, 2018), the dispute arose in the context of a homeowners’ association’s assessment lien foreclosure action. The Association provided statutory pre-suit foreclosure notices to the homeowners at three addresses, one being the property in Ft. Pierce being foreclosed upon, and the two others in Key Biscayne. One of the owners signed a Certified Mail Return Receipt for the mailing to one of the Key Biscayne addresses.

You likely have anticipated what occurred next. The Association attempted to serve the owners only at the Ft. Pierce address, not either of the Key Biscayne addressed, including not the address where the Certified Mail Receipt was signed. The Association not being able to serve at the Ft. Pierce address still did not seek service at either of the Key Biscayne addresses.

Instead, the Association filed an affidavit for service by publication including the following:

4. That Affiant has made a diligent search, an honest and conscientious effort and inquiry and good faith efforts on information available to located [the Homeowners] by use of:

a. Process servers/investigators,

b. Computerized legal research and people trackers,

c. Skip traces, and

d. DBPR license searches.

5. That the residences of [the Homeowners] is unknown and attempts to track down [the Homeowners] at other known addresses reasonably available to Plaintiff have been unsuccessful.

When there was no response to publication a default final judgment of foreclosure was entered resulting in clerk’s sale and a certificate of title being issued to a third party.

The owners moved to vacate the certificate of title, certificate of sale, judgment, and defaults, and to quash service. The owners asserted that the Association knew the owner’s primary residence was in Key Biscayne, that the Association knew the Ft. Pierce property was only a rental property and that the Association had the owners’ email address. The trial court denied the Motion to Vacate and Quash.

The appellate court found that the “foreclosure” was void as a matter of law. First, the Affidavit “was facially defective,” relying on Martins v. The Oaks Master POA, Inc. 159 So. 3d 142, 145-46 (Fla. 5th DCA 2014), which held that the failure of an affidavit for service by publication to disclose alternative addresses created a fatal defect. Second, the failure to pursue the owner’s physical address shown on the signed Certified Mail receipt, or to utilize the owner’s email address known to the association, reflected the failure to conduct a diligent search.

The detail laid out in the opinion obviously cannot be ignored, undoubtedly intended to shout out to practitioners a loud reminder of the need to conduct a proper diligent search, and document the diligent search before seeking publication. This reminder is reinforced by the holding that an affidavit which is insufficient on its face results in a judgment that is void, not just voidable. The distinction being that a void judgment can be attacked at any time. Of course, this opinion is yet another similar decision in the community association area, demonstrating that association counsel cannot ignore the details of service.

The opinion also can serve as a tool to remind association clients to properly transmit owner location information to counsel. This includes not only alternative physical addresses, but also email addresses.

Question 1: In context of the Fair Credit laws: What vetting should occur before using an email address that is in an association’s file, but may not be confirmed to be just for the owner? Beware of a potential unintended trap.

Question 2: How would a third party be on notice the affidavit was facially defective? For example, a title examiner or homebuyer would not necessarily be on notice from the face of the affidavit that the plaintiff failed to list all known addresses. Title risks are apparent.

In passing, it is assumed that the association is a homeowners’ association. There is an inconsistency in the decision’s citation using “Ocean Village Property Owners” and the decision’s introductory paragraph which refers to “Ocean Village Homeowner’s Association.”

Of interest to appellate court geeks is the per curiam” signature. It has appeared that there has been an increase of per curiam opinions from the Third District Court of Appeal, including matters that were not particularly controversial. It is questioned what in particular regarding this opinion prompted the Fourth DCA to issue this opinion under a per curiam signature.

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section

of The Florida Bar

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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section

© 2017 Michael J. Gelfand

Michael J. Gelfand

Florida Bar Board Certified Real Estate Attorney

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Fellow, American College of Real Estate Attorneys