Batchin v. Barnett Bank of Southwest Florida
| Decision Date | 05 August 1994 |
| Docket Number | No. 93-02186,93-02186 |
| Citation | 647 So.2d 211 |
| Parties | 19 Fla. L. Weekly D1693 Barry BATCHIN, Appellant, v. BARNETT BANK OF SOUTHWEST FLORIDA and Ann Kelz, Appellees. |
| Court | Florida District Court of Appeals |
Harold W. Scovill, Sarasota, for appellant.
Christine E. Lamia of Abel, Band, Russell, Collier, Pitchford & Gordon, Chartered, Sarasota, for appellee Barnett Bank of Southwest Florida.
James L. Essenson, Sarasota, for appellee Ann Kelz.
BY ORDER OF THE COURT:
Upon consideration of appellee, Barnett Bank of Southwest Florida's, motion for rehearing or, in the alternative, motion for clarification filed on April 27, 1994, it is
ORDERED that the motion for rehearing and clarification is granted in part and denied in part and the prior opinion filed April 15, 1994, is withdrawn. The attached opinion is substituted for it.
Barry Batchin challenges the trial court's order vacating a temporary injunction and denying his motion for relief in this foreclosure action. Mr. Batchin argues that the service of process by publication in this action was defective and that the trial court could not, therefore, enter a valid judgment of foreclosure. We agree with Mr. Batchin and reverse.
Barry Batchin is the only child of Morris Batchin. Morris died in May 1990, a resident of Charlotte County, Florida. Sometime earlier, Morris had executed a mortgage in favor of Barnett Bank of Southwest Florida, encumbering real property in Sarasota County. Barnett instituted this mortgage foreclosure action against Morris Batchin in December 1991. When Barnett attempted to personally serve process on Morris, Barry advised the process server that his father was deceased. This information is stated on the return of service.
Barnett continued to prosecute the foreclosure action. On May 8, 1992, it personally served Barry with a notice of deposition at an address on Deltona Drive in Punta Gorda, the same address where it had previously attempted service on Morris. Barry appeared at the deposition on May 13, 1992. He testified that he resided at the Deltona Drive address, and also stated his telephone number. Barry advised the attorney for Barnett that he was Morris's only heir. Morris had executed a will under which Barry was sole beneficiary and designated personal representative, but Barry had not probated the will. The will was marked for identification during the deposition. The time records of the law firm representing Barnett showed that one of its attorneys prepared a letter to Barry and talked with him on the telephone in May 1992.
On July 14, 1992 another attorney from the same law firm filed an affidavit in support of service by publication. This affidavit recited that Morris had died, and attached a copy of his death certificate. The affidavit continued:
Affiant believes that there are persons who are or may be interested in the property which forms the subject matter of this foreclosure action and whose names, after diligent search and inquiry, are unknown to Affiant, and that same unknown parties may claim an interest as heirs, devisees, grantees, assignees, lienors, creditors, trustees or other claimants by, through or against Defendant, Morris Batchin.
At the same time, Barnett changed the defendant in the case from "Morris Batchin" to "Morris Batchin, and all parties claiming interests by, through, under or against Morris Batchin, including any unknown spouse, heirs, devisees, grantees, creditors or other claimants." Notice of the action was published in the Sarasota edition of the Sarasota Herald Tribune four times during the month of August 1992. When no one responded to the published notice, Barnett moved the court for appointment of a guardian ad litem to represent Morris's interests. The court appointed a guardian, who filed an answer on behalf of Morris. Final summary judgment of foreclosure in favor of Barnett was entered on October 12, 1992. Appellee Ann Kelz subsequently purchased the property at the foreclosure sale on December 17, 1992.
On December 28, 1992 Barry Batchin moved to enjoin the issuance of a certificate of title to the property. He asked the court to determine that he was the legal owner of the equity of redemption in the property, either as Morris's intestate heir or as the beneficiary under Morris's will. He also requested that Barnett be required to reforeclose the property in order to cut off his equity of redemption. In support of his motion, he alleged that Barnett had not personally served him with the foreclosure complaint, even though Barnett knew or should have known of his existence and his relationship to Morris. The trial court initially entered a temporary injunction, but later vacated it. It also denied Mr. Batchin's objection to issuance of title certificate, motion for order of reforeclosure and motion for relief from judgment.
Service by publication is permitted in foreclosure actions, but only where personal service cannot be had. Secs. 49.011 and...
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...a defendant based upon improper service by publication lacks authority of law. Shepheard, 922 So.2d at 345; Batchin v. Barnett Bank of Sw. Fla., 647 So.2d 211, 213 (Fla. 2d DCA 1994). “Such improper service renders the judgment either void or voidable.” Shepheard, 922 So.2d at 345; see also......
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...defendant based upon improper service by publication lacks authority of law. Shepheard, 922 So. 2d at 345; Batchin v. Barnett Bank of Sw. Fla., 647 So. 2d 211, 213 (Fla. 2d DCA 1994). "Such improper service renders the judgment either void or voidable." Shepheard, 922 So. 2d at 345; see als......
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