Castro v. Charter Club, Inc.

Decision Date05 June 2013
Docket NumberNo. 3D12–1367.,3D12–1367.
Citation114 So.3d 1055
PartiesPedro CASTRO and Maria Robles de Castro, Appellants, v. The CHARTER CLUB, INC., a Florida not for profit corporation, Appellee.
CourtFlorida District Court of Appeals

114 So.3d 1055

Pedro CASTRO and Maria Robles de Castro, Appellants,
v.
The CHARTER CLUB, INC., a Florida not for profit corporation, Appellee.

No. 3D12–1367.

District Court of Appeal of Florida,
Third District.

June 5, 2013.


[114 So.3d 1057]


The Stabenow Law Firm, PLLC, and Tony Stabenow, Miami Beach, for appellants.

David Haber, P.A., Miami, and, Lindsey F. Thurswell, Coral Gables, and Rebecca C. Newman, Miami, for appellee.


Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.

ROTHENBERG, J.

Pedro Castro and Maria Robles de Castro (“the Castros”) appeal the trial court's order denying their motion to vacate a final judgment of foreclosure. For the following reasons, we reverse.

The Castros own a condominium, unit 923, at the Charter Club Condominiums. The Charter Club, Inc.'s (“the Association”) records list the Castros' daughter's home address as their alternate address and billing address. When the Castros fell behind on their maintenance and assessment fee payments, the Association sent the Castros a notice of intent to file a lien (“NOL”) against their unit for the outstanding maintenance fees. The NOL, which was sent to the Castros at their daughter's residence via certified mail, was received and signed for on November 29, 2008, and the Association recorded its claim of lien against the property on April 2, 2009.

The Association filed this action to foreclose on the Castros' condominium on August 4, 2009. The first return of service states that, on December 7, 2009, the process server “discontinued attempting service” on the Castros at their condominium address “[f]or the reasons detailed in the comments below,” but failed to include the “comments” as indicated. No attempt was made to serve the Castros at their daughter's address, where the NOL had been successfully served.

The second attempt was made in May of 2010. A verified return of non-service, signed by the process server on May 17, 2010, states that the process server went to the daughter's residence on March 29, 2010, and spoke to a woman (the Castros' daughter) who informed him that the Castros lived at 6701 Collins Avenue, unit 3704, on Miami Beach, but that when the process server attempted to serve the Castros at the 6701 Collins Avenue address, no such unit number existed. The daughter's sworn affidavit, however, states that when the process server came to her home looking for her parents, he did not tell her that her parents' condominium was in foreclosure and that he was trying to obtain service on her parents. When asked where her parents could be located, the daughter avers that she told the process server that her parents lived at 6365 Collins Avenue, not 6701 Collins Avenue, but the process server did not write down the address. It is undisputed that the process server never returned to the daughter's residence to verify the address or to seek the daughter's assistance in serving her parents.

[114 So.3d 1058]

On June 29, 2010, the Association sought to obtain jurisdiction over the Castros through notice by publication. In support thereof, the Association's counsel filed an affidavit of constructive service, stating that “after making a diligent search and inquiry, the residence of said Defendant(s), PEDRO CASTRO and NORMA ROBLES DE CASTRO, is unknown to Affiant, and Affiant is unable to determine if said Defendant is living or dead.” This affidavit was signed by the Association's counsel despite the fact that he knew the Castros were alive and he had been in contact with the Castros' daughter, attempting to negotiate terms for the Castros to pay down their debt to the Association.

As a result of the Association's negotiations with the Castros' daughter, the Association agreed to allow the Castros to lease the unit and have the tenant pay the rent directly to the Association's attorney in order to offset the amount owed to the Association by the Castros. The lease was signed by the Castros, and the tenant was approved by the Association in September of 2010 and again in September of 2011 upon renewal of the lease. The tenant's unrebutted affidavit provided that she paid the rent directly to the Association's counsel, lived in the condominium with the Association's knowledge and approval, and was never advised of the existence of the subject lawsuit, nor was she asked to provide any contact information for the Castros.

A year-and-a-half after filing the affidavit of constructive notice, while the tenant continued to reside at the condominium and pay rent directly to the Association's counsel, and despite the Association having direct contact with the Castros' daughter, the Association filed an ex parte motion for default based on service by publication. The motion for default was accompanied by an affidavit of diligent search and inquiry for service of process by publication. The affidavit states that the Association's counsel had conducted an “extensive diligent search” for the Castros using the “PeopleMap database,” the Property Appraiser's Office, and military records. On January 4, 2012, after a hearing on the Association's ex parte motion, default was entered against the Castros.

On January 23, 2012, the Association filed a motion for summary judgment (“MSJ”). The MSJ was set for hearing at motion calendar on February 29, 2012. Although the Association knew the Castros no longer resided in the condominium, and the Association's records listed the Castros' daughter's home address as their alternate address and billing address, the Association sent its notice of the hearing for the Association's MSJ to the Castros at the condominium. When the tenant occupying the condominium received the notice, she delivered it to the Castros' daughter. The Castros' daughter attended the MSJ hearing accompanied by an attorney. The attorney accompanying the Castros' daughter did not file a notice of appearance in the case and Pedro Castro's supplemental affidavit states that neither he nor his wife were aware of the hearing and neither had retained nor authorized any attorney to represent them in the case or at the hearing. At the conclusion of the hearing, the trial court granted the Association's motion for final judgment of foreclosure.

When the Castros learned what happened, they obtained counsel and timely filed a motion to vacate the default and the default judgment, and an emergency motion to cancel the foreclosure sale, arguing that the service by publication was defective, and included affidavits in support of their motions. After an emergency hearing on the motion to cancel sale, the trial court denied the motion and noted that the

[114 So.3d 1059]

issue of service could be “raised after the sale with the presiding judge at any time.” Thereupon, the Castros filed their objections to the sale and the certificate of sale.

At the hearing conducted by the trial court, the Castros argued...

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6 cases
  • Demir v. Schollmeier
    • United States
    • Florida District Court of Appeals
    • November 28, 2018
    ...strict compliance with the statute, service is improper and any resulting proceeding or judgment is void . Castro v. Charter Club, Inc., 114 So.3d 1055, 1059 (Fla. 3d DCA 2013) (emphasis added) (citations omitted). See also Ressler v. Sena, 307 So.2d 457 (Fla. 4th DCA 1975) (holding that co......
  • 90 Cwelt-2008 LLC v. Yacht Club at Portofino Condo. Ass'n, Inc.
    • United States
    • Florida District Court of Appeals
    • April 25, 2018
    ...is void." Del Conte Enters., Inc. v. Thomas Publ'g Co., 711 So.2d 1268, 1269 (Fla. 3d DCA 1998). See also Castro v. Charter Club, Inc., 114 So.3d 1055 (Fla. 3d DCA 2013) ; Rodriguez–Faro v. M. Escarda Contractor, Inc., 69 So.3d 1097 (Fla. 3d DCA 2011). Therefore, and as the trial court corr......
  • Espinoza v. Humphries
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 10, 2022
    ...compliance with the statute, service is improper and any resulting proceeding or judgment is void." Castro v. Charter Club, Inc. , 114 So. 3d 1055, 1059 (Fla. Dist. Ct. App. 2013) ; see also Demir v. Schollmeier , 273 So. 3d 59, 61 (Fla. Dist. Ct. App. 2018). Noting that defect, Humphries m......
  • Espinoza v. Humphries
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 10, 2022
    ... ... resulting proceeding or judgment is void." Castro v ... Charter Club, Inc., 114 So.3d 1055, 1059 (Fla. Dist. Ct ... ...
  • Request a trial to view additional results

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