Floyd v. Federal Nat. Mortg. Ass'n

• Decision Date: 09 January 1998
• Docket Number: No. 97-361,97-361
• Citation: 704 So.2d 1110
• Parties: 23 Fla. L. Weekly D157 Kenneth FLOYD, Faye Floyd, et al., Appellants, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 1110

704 So.2d 1110

23 Fla. L. Weekly D157

Kenneth FLOYD, Faye Floyd, et al., Appellants, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, etc., et al., Appellees.

No. 97-361.

District Court of Appeal of Florida Fifth District.

Jan. 9, 1998.

Laurence H. Bartlett, Daytona Beach, for Appellants.

Paula Pratt of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park, for Appellees.

PETERSON, Judge.

Kenneth Floyd, Kevin Floyd, Faye Floyd, and Vernon Chiress a/k/a Vernon Floyd, appeal a post-judgment final order denying their "Motion to Vacate Final Judgment and Set Aside Foreclosure Sale."

The appellee, Federal National Mortgage Association ("FNMA"), filed a complaint to foreclose its first mortgage against Pamela S. Johnson f/k/a Pamela S. Floyd in January 1995. The mortgage in the original principal amount of $11,100 was executed in 1968 by Pamela and her then husband, Vernon Floyd, and encumbered their family home located at 625 Willie Mays Drive, in Daytona Beach. The Floyds divorced in 1977, Vernon quitclaimed his interest in the home to Pamela, and she continued to live in it with the couple's three children until her death in 1983. Vernon, now known as Vernon Chiress, moved back into the home after Pamela's death in order to care for the children and began making the FNMA mortgage payments until 1994. In that year, the mortgage, then having a principal balance of $3,045.96, went into default, and prompted the January, 1995 foreclosure complaint. Vernon and his children, who by then had attained majority, were residing in the family home at the time.

Attempted personal service of the complaint upon Pamela was unsuccessful, not because she was deceased, but because the sheriff's process server could not locate the property. FNMA's attorney alleges that she made attempts to confirm the death of Pamela and to locate her heirs and she was able to learn from the Social Security Administration that Pamela was indeed deceased, but she could not find a death certificate on file in Volusia County or with Vital Statistics in Jacksonville. Similarly, neither a will nor probate of the estate could be located.

FNMA and its attorney were aware that Vernon was interested in the property because Vernon had contacted them about reinstating the mortgage before foreclosure was initiated. On February 7, 1995, FNMA's law firm sent a letter to Vernon at the Willie Mays Drive address specifying the amount necessary to reinstate the mortgage. Although the letter indicates that Vernon requested the information, no one called or otherwise contacted him to confirm Pamela's death or to inquire about his interest in the home or possible heirs.

In September, 1995, FNMA filed an Amended Complaint naming as defendants "PAMELA S. JOHNSON f/k/a Pamela S. Floyd, if living, and if deceased, her respective unknown heirs,...." One month later, FNMA's attorney filed an Affidavit of Constructive Service alleging that after diligent search and inquiry, the unknown heirs, devisees, etc. of Pamela Johnson could not be located. The Notice of Action with an attached copy of the amended complaint was mailed to Pamela S. Johnson f/k/a Pamela S. Floyd at the Willie Mays Drive address.

On November 27, 1995, FNMA's attorney sent another letter to Vernon specifying the amounts necessary to reinstate the mortgage or to pay the balance in full. This letter, like the February letter, indicates that Vernon requested the information. A court appointed attorney ad litem for the unknown defendants perfunctorily answered the amended complaint and on January 30, 1996, the trial court entered final summary judgment in favor of FNMA. The property was sold at a foreclosure sale on March 19, 1996, for $16,000.

Shortly after the foreclosure sale, the appellants were personally notified to vacate the premises by the sheriff. In response, the instant motion to set aside the sale was filed, accompanied by affidavits stating that the appellants were never contacted by counsel for FNMA or the attorney ad litem, and that they were unaware of the foreclosure action until presented with a writ of possession. The court denied the motion finding that appellants failed to move expeditiously to protect their interests and that they presented no meritorious defense to the foreclosure.

We agree with the appellants' assertion that FNMA failed to conduct a diligent search. Chapter 49 of the Florida Statutes governs constructive service of process. As a prerequisite to constructive service, a plaintiff (or plaintiff's attorney) must file an affidavit showing, inter alia, that a diligent search has been made to discover the names and addresses of the defendants. §§ 49.031(1), 49.041(1), 49.071, Fla. Stat. (1995). The affidavit need only allege that a diligent search and inquiry was made, and need not include specific supporting facts. Demars v. Village of Sandalwood Lakes Homeowners Ass'n, Inc., 625 So.2d 1219 (Fla. 4th DCA 1993). The underlying facts, however, must show that " 'the complainant reasonably employed the knowledge at his command, made diligent inquiry and exerted an honest and conscientious effort appropriate to the circumstance to acquire the information necessary to enable him to effect personal service on the defendant.' " Batchin v. Barnett Bank of Southwest Florida, 647 So.2d 211, 213 (Fla. 2d DCA 1994) (quoting Canzoniero v. Canzoniero, 305 So.2d 801, 803 (Fla. 4th DCA 1975)).

In the instant case, FNMA's affidavit states that a search was made of the Social Security Administration database, Volusia County probate records and Vital Statistics without success. Notwithstanding, Social Security records did confirm that Pamela Johnson was deceased. FNMA, however, omitted the most meaningful search--getting out of the office, finding the property, inquiring of persons in possession of the property, or talking with neighbors, relatives or friends. ¹

Vernon's inquiries to FNMA resulted in letters being sent to him at the Willie Mays Drive address specifying the amount necessary to reinstate the mortgage. Thus, FNMA was placed on notice in February 1995 that Vernon was accepting mail at the subject property and had some knowledge about the mortgage and its default status. FNMA could have easily contacted him to inquire about Pamela and her heirs and had it done so, should have discovered that Pamela's heirs resided at the home on Willie Mays Drive. The failure to pursue this lead shows that FNMA did not "reasonably employ[ ] the knowledge at [its] command." Batchin, supra. FNMA failed to conduct a diligent search and inquiry as required by section 49.071 by completely ignoring parties in possession of the premises.

Strict compliance with constructive service statutes is required. Tindal v. Varner, 667 So.2d 890 (Fla. 2d DCA 1996); Gans v. Heathgate-Sunflower Homeowners Ass'n, Inc., 593 So.2d 549 (Fla. 4th DCA 1992); Sunblest Products, Inc. v. Vroom Enterprises, Inc., 508 So.2d 770 (Fla. 5th DCA 1987). Failure to strictly comply renders a subsequent judgment voidable. Tindal; Demars, 625 So.2d at 1221. If service of process is so defective that it amounts to no notice of the proceedings, the judgment is void. Cohen v. Drucker, 677 So.2d 953 (Fla. 4th DCA 1996); Myrick v. Walters, 666 So.2d 249 (Fla. 2d DCA 1996); McAlice v. Kirsch, 368 So.2d 401 (Fla. 3d DCA 1979).

The record discloses that a conscientious effort was not made to acquire the information necessary to accomplish personal service on the persons holding title or having possession of the mortgaged property so as to provide them with notice of the proceedings. The facts known by FNMA prior to obtaining the final judgment were:

1. Pamela Johnson was the sole owner of the...