Santiago v. Wilmington Tr.
| Decision Date | 18 February 2022 |
| Docket Number | 5D20-2485 |
| Parties | DAVID M. SANTIAGO, Appellant, v. WILMINGTON TRUST, NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE OF MFRA TRUST 2015-1, CARRIE SANTIAGO A/K/A CARRIE A. SANTIAGO, AND SPACELY SPACE SPROCKETS INVESTMENTS, LLC, Appellees. |
| Court | Florida District Court of Appeals |
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Orange County LT Case No 2018-CA-005130-O, John M. Kest, Judge.
Andrew B. Greenlee, of Andrew B. Greenlee, P.A., Sanford, and Anthony N. Legendre, II, of Law Offices of Legendre & Legendre, PLLC, Maitland, for Appellant.
Shaib Y. Rios, of Brock & Scott, PLLC, Ft. Lauderdale, for Appellee, Wilmington Trust, National Association.
No Appearance for Other Appellees.
David M. Santiago appeals the order entered by the trial court after an evidentiary hearing that denied his omnibus motion to: (1) quash constructive service of process; (2) set aside the final judgment of foreclosure; (3) vacate the default entered by the clerk of court; and (4) vacate the certificate of sale and certificate of title issued following the foreclosure sale. For the following reasons, we reverse the order in its entirety.
On May 16, 2018, Appellee's predecessor-in-interest, Wells Fargo Bank, N.A., ("Wells Fargo"), filed a verified complaint against Santiago to foreclose a mortgage on residential real property owned by him and his ex-wife in Orlando, Florida. Efforts were made by Wells Fargo shortly after suit was filed to personally serve Santiago with process at the subject residence, as well as at other locations, as indicated in the July 9, 2018 affidavit of diligent search and inquiry from the process server who had been hired on behalf of Wells Fargo to serve Santiago. Subsequently to the execution of this affidavit, no additional efforts were made to personally serve Santiago.
In April 2019, nine months after the process server had executed his aforementioned affidavit, Wells Fargo's counsel executed and filed his own "Affidavit for Service by Publication." Counsel attached to his affidavit the earlier affidavit from the process server. Counsel also averred in his affidavit that, according to the process server's affidavit, Santiago's residence is "unknown" and that counsel was unable to determine if Santiago "is living or dead." Wells Fargo thereafter caused a notice of action to be published.
After Santiago failed to file a response to the complaint, Wells Fargo moved for and obtained a default against Santiago from the clerk of court. It then moved for the entry of a final summary judgment of foreclosure, which was granted following a hearing.[1] The mortgaged property was thereafter sold at foreclosure sale to a third-party purchaser, to whom the clerk of court issued a certificate of title.
Ten days after the certificate of title issued, Santiago filed the subject motion, with supporting affidavit, challenging the sufficiency of the affidavit for service of process by publication and detailing how, in his view, Wells Fargo had failed to conduct a diligent search to locate and personally serve him with process before resorting to service by publication. Santiago argued that, resultingly, service of process against him was defective, the clerk's default should be set aside as improvidently entered, the later final judgment of foreclosure was void, and the certificates of sale and title issued following the court-ordered foreclosure sale should be vacated. Following an evidentiary hearing, the trial court entered the unelaborated written order now under review denying Santiago's motion. This appeal ensued.
We begin our analysis with the recognition that, under sections 49.011(1) and 49.021(1), Florida Statutes (2019), service of process upon any known natural person in a mortgage foreclosure proceeding can be obtained through publication provided that it is first shown that personal service of process cannot be had. Thus, Appellee's predecessor, Wells Fargo, was not precluded from serving process on Santiago by publication; however, "[b]ecause the lack of personal service implicates due process concerns, a plaintiff must strictly comply with the statutory requirements [before serving process by publication]." Martins v. Oaks Master Prop. Owners Ass'n, 159 So.3d 142, 146 (Fla. 5th DCA 2014) (quoting Redfield Invs., A.V.V. v. Vill. of Pinecrest, 990 So.2d 1135, 1138 (Fla. 3d DCA 2008)).
The statutory requirements for obtaining valid service of process by publication on a natural person are set forth in section 49.041, Florida Statutes. Prior to serving process by publication, this statute requires that, among other things, the plaintiff, or his or her agent or attorney, provide a sworn statement showing "[t]hat diligent search and inquiry have been made to discover the name and residence of such person, and that the same is set forth in said sworn statement as particularly as is known to the affiant."[2] § 49.041(1), Fla. Stat. A failure by the plaintiff to strictly adhere to the requirements of section 49.041 results in the trial court lacking jurisdiction over the defendant. See Shepheard v. Deutsche Bank Tr. Co. Ams., 922 So.2d 340, 343 (Fla. 5th DCA 2006) .
Where, as here, the validity of the service of process by publication is disputed, a trial court, in determining whether such service was properly obtained, is tasked with resolving: (1) whether the affidavit of diligent search filed pursuant to section 49.041 is legally sufficient and (2) if the plaintiff actually conducted an adequate search to locate the defendant. Martins, 159 So.3d at 146 (quoting First Home View Corp. v. Guggino, 10 So.3d 164, 165 (Fla. 3d DCA 2009)). In deciding if a diligent search and inquiry to locate a defendant for personal service was performed, a trial court must evaluate whether the plaintiff "reasonably employed knowledge at his command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstances, to acquire the information necessary to enable him to effect personal service on the defendant." Id. (quoting McDaniel v. McElvy, 108 So. 820, 831 (Fla. 1926)).
At the hearing held on Santiago's motion, the uncontroverted evidence presented to the trial court, consisting of emails, Wells Fargo's own records, and testimony from both Santiago and a representative of Wells Fargo's loan servicer, indicated that during the time from June 2018, when Wells Fargo attempted personal service of process on Santiago, [3] through April 2019, when Wells Fargo's attorney filed his affidavit as the prerequisite for service of process by publication, that Wells Fargo and Santiago were in direct communication. More specifically, Wells Fargo representatives and Santiago were having phone conversations and emails with each other about loss mitigation and other matters.
Despite these...
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