Godsell v. United Guar. Residential Ins.

• Decision Date: 17 March 2005
• Docket Number: No. 5D05-703.,5D05-703.
• Citation: 923 So.2d 1209
• Parties: Mary GODSELL, Appellant, v. UNITED GUARANTY RESIDENTIAL INSURANCE, etc., Appellee.
• Court: Florida District Court of Appeals

923 So.2d 1209

Mary GODSELL, Appellant, v. UNITED GUARANTY RESIDENTIAL INSURANCE, etc., Appellee.

No. 5D05-703.

District Court of Appeal of Florida, Fifth District.

March 17, 2005.

Mary L. Taylor, of The Law Offices of David R. Carter, P.A., New Port Richey, for Appellant.

Michelle G. Castillo, of Kass, Schuler, Solomon, Spector & Foyle, Tampa, for Appellee, United Guaranty Residential Insurance Company of North Carolina.

Darryl W. Johnston, of Johnston & Sasser, P.A., Brooksville, for Appellee, Ellen Jane Mancuso.

PER CURIAM.

This is an appeal of an order denying a motion to vacate a final judgment of foreclosure.

On or about February 14, 2004, United Guaranty Residential Insurance Company of North Carolina ["United"], acting as successor in interest of NationsBank/Bank of America, filed suit against Mary Godsell ["Godsell"] to foreclose a second mortgage¹ on real property she owned which was located at 6009 Applegate Drive, in Spring Hill, Florida. The mortgage had been executed by Godsell and her daughter, Sioban M. Challis ["Challis"]. The mortgage secured payments under a note executed by Challis on a credit line in the amount of $29,000 used by Challis' husband in his business. He defaulted on the payments after he and Challis were divorced, although he had been ordered to pay the note in the final decree. The complaint sought $28,996.43 in principal under the note and mortgage, plus interest, costs and attorney's fees.

Godsell is a permanent resident of Canada, but her address shown on the mortgage was the Applegate Drive property, which she uses seasonally. After filing suit, United made two attempts to serve Godsell at the 6009 Applegate Drive address. The first attempt was made on February 21, 2004. The affidavit of service indicates:

UNOCCUPIED AT THIS TIME; CURRENT RESIDENT WAS ARRESTED BY THE HERNANDO COUNTY SHERIFF'S OFFICE IN THE MONTH OF JAN. 2004; ELECTRIC IS STILL ON; OWNER LIVES IN CANADA, PER NEIGHBORS.

Because service was unsuccessful, United employed a "skip trace" service to locate Godsell. The only known sources contacted by the skip trace service in an attempt to determine Godsell's address were: (1) the Florida Department of Motor Vehicles, (2) the Trans Union Social Security data bases, and (3) the U.S. Postal Service, for a forwarding address. These sources apparently came up with a second possible address for Godsell at 8151 Allen Drive, Weeki Wachi, Florida. A second attempt to serve Godsell at both addresses was unsuccessful. The affidavit of service for this attempt stated:

UNOCCUPIED AT THIS TIME; CURRENT RESIDENT WAS ARRESTED BY THE HERNANDO COUNTY SHERIFF'S OFFICE IN THE MONTH OF JAN. 2004; ELECTRIC IS STILL ON; OWNER LIVES IN CANADA, PER NEIGHBORS; ALSO ATTEMPTED 8151 ALLEN DRIVE, SPRING HILL, FL., 34613; DOES NOT LIVE AT THIS ADDRESS; JACQUIEAND [SIC] ANASTASSI MIKHAILIDES LIVE AT THIS ADDRESS.

Because service had been unsuccessful, United gave Godsell notice of the action by publication. United's affidavit of "diligent search" for service by publication stated in relevant part:

2. Diligent search and inquiry have been made to discover the identity and residence of Defendant(s), MARY GODSELL. Plaintiff hired an investigator to perform a skip trace to locate the defendants, but said investigator was unable to determine the residence address for the Defendant(s). Plaintiff has attempted service on the Defendant(s) at the following addresses:

(a) 6009 Applegate Drive, Spring Hill, Florida 34606;

(b) 8151 Allen Drive, Weeki Wachi, FL 34613.

3. Directory assistance for these cities does not have a current listing for these Defendants. Plaintiff's investigator searched various data bases, including the Florida Department of Motor Vehicles and the Trans Union Social Security data bases, to obtain the current residence address for the Defendant(s), without success. Written inquiries have been made with the U.S. Postal Service for forwarding addresses, without response. The investigator has been unable to discover further information regarding the current residence of the Defendant(s) after diligent search and inquiry.

Apparently relying on this affidavit, the clerk of the court sent notice of the action to Godsell at the Allen Drive address and not the Applegate Drive address. Godsell never learned of the suit, and on June 18, 2004, a final default judgment of foreclosure was entered against her in the amount of $34,231.43. The judgment was sent to the Allen Drive address. The property was later sold to an unrelated third party on September 9, 2004, for the sum of $55,000, and the clerk issued a certificate of title.

Godsell learned of the foreclosure from a neighbor who had been caring for the property and, shortly thereafter, she filed a motion to vacate the final judgment, asserting that the sale was void because of United's failure to make a "diligent search" to determine her Canadian address. The motion alleged:

5. The affidavit of the process server reflects [on its face] that additional steps should have been taken which are not reflected in the Affidavit of Diligent Search to determine the address of the owner, Mary Godsell, in Canada. For example, it does not indicate that any of the neighbors who stated that the Owner was in Canada asked for the Defendant's address or location (city, town or province) in Canada. Accordingly, the court file reflects that such affidavit is insufficient to establish diligent search and inquiry.

6. Further, Defendant's office has spent approximately ten (10) minutes to obtain an internet search and obtained Ms. Godsell's address and telephone number. A copy is attached hereto as Exhibit "C".

On November 1, 2004, Godsell filed an amended affidavit stating that her "contact person" in Florida was Robert Marchini, who "was a neighbor in Spring Hill on Applegate Drive until July or August of 2004" and who "mowed my lawn and kept an eye on my property while I was away." Godsell also alleged that a second neighbor, Frank Marino, could have been contacted regarding her "summer address."

On January 6, 2005, Godsell filed a "corrected" motion to vacate the final judgment. Her supporting affidavit stated that: (1) the property had been subject to a first mortgage for which Godsell had authorized automatic payments by a deduction from a Bank of America account; (2) that Godsell had continued to make the payments on her first mortgage during the foreclosure process; (3) that the Bank of America account had received transfers of funds from a Canadian account with Royal Bank of Canada ("the Canadian account"); (4) that the bank holding her Canadian account had her actual address and phone number in Canada; (5) that two employees of a Bank of America branch located in Spring Hill, Florida "knew her personally and that she was a Canadian resident" (6) that during 2004 the utilities on the Spring Hill residence had been paid by Godsell's granddaughter, Sarah Challis, who had moved to Tampa and would have been able to provide Godsell's Canadian address; and (7) that Bank of America was listed on the homeowner's policy as a named insured and from that policy United could have learned the name of Godsell's insurance agent, who had her Canadian address.

The court held a hearing on Godsell's motion on January 6, 2005, and ruled in favor of United, explaining:

I do think that due diligence, reasonable due diligence — obviously not perfect due diligence — but reasonable due diligence was exercised by the Plaintiff and their process server in trying to locate Mrs. Godsell, and that the Judgment at best is voidable, rather than void.

I don't think that there is any evidence that the service of process was so defective that it amounts to no notice of the proceedings. There is just simply, at best, a failure to strictly comply with the applicable service of process statutes, or the intent of the statutes, at least, which is to give actual notice to the person being served.

Since in this case, there is a bona fide purchaser for value, then — and the Judgment in my estimation is voidable and not void, it cannot be set aside against a bona fide purchaser for value. And so the effort to set aside the Final Judgment for the alleged defects in the service of process must fail.

A written order refusing to vacate the final judgment of foreclosure was later issued, which stated in relevant part:

Pursuant to Southeast and Associates, Inc. v. Fox Run Homeowners Association, Inc., 704 So.2d 694 (Fla. 4th DCA 1997), where a subsequent foreclosure is merely voidable, and not void, [the foreclosure and sale] cannot be set aside as against a bona fide purchaser.

Following the denial of her motion to vacate, Godsell filed a motion for rehearing, submitting a whole new series of affidavits, including one from Challis, Godsell's daughter, who averred that she was the former owner of the property at 8151 Allen Drive, which was the second property at which service had been attempted. She said that she once owned the property, but she had sold the property, and her mother had never resided there or received mail at that address.

Godsell's former neighbor, Robert Marchini, averred that he had lived next door to 6009 Applegate Drive until June 1, 2004 and had mowed Godsell's lawn; that he continued to mow her lawn after his move and first learned of the foreclosure in late September or early October 2004; that he had keys to the residence and during 2004 would move Godsell's mail into the residence after it "built up" in the mailbox; that he had her phone number in Canada, but had never been asked to provide it; that he had Challis' phone number and address in Gainesville, Florida; and that he had gone into Godsell's residence on many occasions in 2004, at which times it was always furnished, had electricity, and the pool pump had been on. In a separate affidavit, attorney David R. Carter averred that he had prepared a warranty deed for Godsell and he had...