Southeast and Associates, Inc. v. Fox Run Homeowners Ass'n, Inc., 97-1131

Citation704 So.2d 694
Decision Date31 December 1997
Docket NumberNo. 97-1131,97-1131
Parties23 Fla. L. Weekly D80 SOUTHEAST AND ASSOCIATES, INC., Appellant, v. FOX RUN HOMEOWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, and Albert Love and Rose Love, his wife, Appellees.
CourtCourt of Appeal of Florida (US)

David B. Haber and Alex Kurkin of Haber, Lewis & Pathman, LLP, Miami, for appellant.

Deborah Fischer Moraitis, Fort Lauderdale, for appellees Albert Love and Rose Love.

RAMIREZ, JUAN, Jr., Associate Judge.

This is an appeal from an order granting Appellees' motion to set aside a default final judgment and sale of real property. Fox Run Homeowner's Association, the original plaintiff, sued Albert and Rose Love to recover condominium fees and assessments and to foreclose its statutory lien on the Loves' home. Southeast and Associates was the successful bidder at a foreclosure sale held after the Loves were constructively served by publication. The issue presented is whether the owners may set aside a foreclosure sale based on affidavits of diligent search and inquiry which were facially sufficient and complied with the statutory requirements. We hold that they cannot and reverse.

A ninety dollar association assessment for semi-annual maintenance became due on July 1, 1995, which the Loves failed to pay. The association sent a notice of delinquency by certified mail to the Loves' home in Fox Run, warning that the association could file a lien against their home and subsequently foreclose on this lien. The notice was accepted by someone on behalf of the Loves, who signed the return receipt card. When the assessment was not paid, the association filed a lien against the property, sending a notice of this lien to the Loves' Fox Run address, which was again accepted on their behalf.

Just before the expiration of this thirty-day period, a partial payment was sent to the association, which was returned to the P.O. box address on the check advising that if full payment was not made the association would instigate a foreclosure suit. Again, someone signed for the letter on behalf of the Loves.

After the Loves failed to pay the entire balance due, Fox Run Homeowner's Association instituted a foreclosure action. The association hired a process server to serve the foreclosure complaint on the Loves. The association only knew of the address within Fox Run, and had the P.O. box address in Tamarac, Florida. Unbeknownst to the association, the Loves were residing at their New York address. The process server performed two skip traces and was unable to discover this or any other addresses for the Loves. He attempted to serve the Loves at their Fox Run address nine times over a thirty-day period, at different times of day, to no avail. The process server also spoke with neighbors on both sides of the subject property and was informed that the Loves were on vacation in New York or out of town. The server was unable to find any New York addresses for the Loves, but did discover another Florida address. He visited this address but only found an abandoned retail outlet. When he contacted the warehouse's leasing agent, he learned that the former tenants had "moved out in the middle of the night" approximately three months earlier. The investigation also revealed that neither of the Loves had a Florida driver's license, and thus the investigator was unable to obtain their social security number for further searches.

After being unable to serve the Loves personally, Fox Run Association served them by publication after filing an affidavit of diligent search by the process server and an affidavit of constructive service executed by the association's counsel. After the Loves defaulted for failing to file a response to the association's complaint, the court entered summary final judgment of foreclosure against the Loves.

Southeast and Associates was the successful bidder at the foreclosure sale held nine months after the initial notice. Southeast had called the mortgage company listed on the deed the day before the foreclosure sale in order to get more information about the Loves, but the mortgage company refused to provide Southeast with any information.

Nine days after the clerk of the trial court issued a certificate of title in favor of Southeast, the Loves moved to set aside the sale based on an insufficient service of process, alleging that the association and its process server failed to perform a thorough enough search. Southeast intervened and asserted that it was a bona fide purchaser for value, arguing that it was not required to look behind the facial sufficiency of the affidavits of...

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  • U.S. v. Rodrigue
    • United States
    • U.S. Court of International Trade
    • October 1, 2009
    ...Shepheard v. Deutsche Bank Trust Co. Americas, 922 So.2d 340, 343 (Fla.Dist.Ct.App. 2006); Southeast and Associates, Inc. v. Fox Run Homeowners Ass'n, 704 So.2d 694, 696 (Fla.Dist.Ct.App.1997); Demars, 625 So.2d at As the plaintiff and the party invoking the court's jurisdiction, the Govern......
  • Owens v. Tergeson
    • United States
    • Colorado Court of Appeals
    • November 5, 2015
    ...... must be searched before resorting to service by publication." (citation omitted)); Southeast & Assocs., Inc. v. Fox Run Homeowners Ass'n, Inc., 704 So.2d 694, 696 (Fla.Dist.Ct.App.1997) ("The plaintiff has the burden of showing that it reasonably employed the knowledge at its command, m......
  • LEWIS v. FIFTH THIRD MORTGAGE Co.
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    ...to establish that an adequate search has been made prior to constructive service); Southeast & Assoc. v. Fox Run Homeowners Ass'n, 704 So.2d 694 (Fla. 4th DCA 1997) (holding that notice by publication is adequate where affidavit of diligent search is facially sufficient and foreclosure sale......
  • Lewis v. Fifth Third Mortgage Company, No. 3D09-294 (Fla. App. 2/10/2010)
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    • Florida District Court of Appeals
    • February 10, 2010
    ...legally sufficient to establish that an adequate search has been made prior to constructive service); Southeast & Assoc. v. Fox Run Homeowners Ass'n, 704 So. 2d 694 (Fla. 4th DCA 1997) (holding that notice by publication is adequate where affidavit of diligent search is facially sufficient ......
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