Third District Court of Appeal

State of Florida, January Term, A.D. 2010

Opinion filed February 10, 2010.

Not final until disposition of timely filed motion for rehearing.

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No. 3D09-294
Lower Tribunal No. 07-41735
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Dian Lewis, a/k/a Diane Lewis, a/k/a Diane Lewis, a/k/a Judith L.
Bourne, a/k/a J. Dian Bourne Lewis,
Appellant,

vs.

Fifth Third Mortgage Company, BVK Investments, Ltd.

Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Maria Espinosa
Dennis, Judge.

Michelle A. Delancy, for appellant.

Brett Feinstein and Alicia Almansa, for appellee BVK Investments, Ltd.

Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.

SUAREZ, J.
 Dian Lewis (“Lewis”) appeals an order denying her Motion to Vacate

Default Judgment and Relief from Final Judgment of Foreclosure. We affirm the

trial court’s order denying the motion to vacate after an evidentiary hearing finding

that the process server’s affidavit of diligent search was facially sufficient to

uphold the service of process by publication and that there was sufficient

competent evidence to conclude that a diligent search was conducted.

During the five years preceding the final judgment of foreclosure on her

Miami property, Lewis, an attorney, resided in the Bahamas. She maintained a

Miami post office box to receive her mail, and never provided her address to her

mortgage company or even to the Florida Bar.1 Lewis admittedly was aware that

she had been in arrears on her mortgage payments for some time. She was mailed

a series of letters from her mortgage company advising her that her account was in

default, including a letter, dated November 16, 2007, from a collection law firm

notifying her that it was in the process of filing a complaint to foreclose on her

property. Lewis’s purported attempts to resolve the matter through email

correspondence were unsuccessful. When her mortgage finally went into

foreclosure, the process server, attempting to serve the complaint of foreclosure,

was unable to locate and personally serve Lewis. The process server indicated on

1
Rule 1-3.3 of the Rules Regulating the Florida Bar requires that an attorney
provide the physical location or street address of her principal place of
employment to the Florida Bar.

2
his return of service, and in testimony at the hearing on the motion to vacate, that

he had made several attempts at personal service on Lewis.2 First, he attempted

service at an old address of Lewis. He never found her there but, on one occasion,

spoke with a tenant who told him that she did not know Lewis’s whereabouts. At

the property address, the process server found a Dorothy Sharpe living there who

informed him that Lewis was residing in the Bahamas. The process server asked

Ms. Sharpe for the address of Lewis in the Bahamas, but was told that Ms. Sharpe

did not know the address. The process server indicated on the back of the return of

service that Lewis resides in the Bahamas. A representative of the mortgage

company filed an affidavit of diligent search in compliance with section 49.041,

Florida Statutes (2008).3 Constructive service of process was then accomplished

according to the statute. The affidavit of diligent search in support of constructive

service shows that no other address for Lewis could be found as a result of other

searches which were made, including with the post office, credit, social security,

employment, telephone, motor vehicle, license, voter registration and property

2
One of Lewis’s claims on appeal is that the process server did not conduct a
diligent search as there was a real estate “for sale” sign in front of the house, and
the process server failed to contact the realtor. We reject this argument as there is
no evidence in the record that the process server ever saw the sign.
3
All that is required under section 49.041, for service by publication, is a sworn
statement that diligent search and inquiry has been made to discover the address of
the person to be served, whether the person is over 18 years-of-age and that the
whereabouts of the person is unknown. The affidavit of diligent search satisfies
these requirements.

3
records. Approximately twelve days after Lewis was notified by letter addressed

to her P.O. Box number, that her property was in the process of foreclosure, a

foreclosure complaint was filed on November 28, 2007. Lewis was mailed notice

of the application for default at the same post office box where she had received all

prior correspondence. A final judgment of foreclosure was entered, and the

property was foreclosed upon and sold to Appellee, BVK Investments, Ltd.

(“BVK”), a bona fide purchaser. Lewis claimed that she never received notice of

the impending foreclosure or the sale and moved to set aside the final judgment of

foreclosure. Lewis filed a Motion to Vacate Default Judgment and Relief from

Final Judgment of Foreclosure claiming that the affidavit of service was defective

rendering the service void as to BVK. BVK moved to intervene in the

proceedings, and the trial judge allowed it to file a Response in Opposition to

Lewis’s Motion to Vacate. The trial judge held an evidentiary hearing.

In response to the factual concerns of the dissent, we include the following

facts raised before the trial judge at the evidentiary hearing on the motion to

vacate: The attorney for BVK proffered to the Court that Lewis was a member of

the Florida Bar and that she admitted at her deposition that, because she worked on

contracts and did closings, she did not want to be found. He further proffered that,

at her deposition, she testified that she used her P.O. Box number for her tax

returns for the Internal Revenue Service. Evidence was presented that her property

4
insurance carrier had only her P.O. box number, her credit card companies had

only her P.O. Box number, the roofer that she hired to put on a new roof on her the

property had only her P.O. Box number and the Florida Bar listed Ms. Lewis in its

attorney directory under only her P.O. Box number, although she was required by

the Rules Regulating the Florida Bar to provide her physical address of

employment. Deposition testimony of prior tenants was proffered that they sent

their rent to the P.O. Box number. The deposition testimony of Lewis’s tenant,

Dorothy Sharpe, was proffered to the court that she did not know the address of

Lewis in the Bahamas and that she received mail for Lewis at the property address.

It was also proffered that Lewis’s neighbor testified at her deposition that she

thought Lewis lived in New York. The trial judge listened to all of the proffers

and evidence presented at the hearing on the motion to vacate and to Ms. Lewis’s

claim of no notice of the impending foreclosure suit, and denied her motion to

vacate. This appeal follows.

The standard of review on a denial of a motion to vacate a final default

judgment is gross abuse of discretion. See Cellular Warehouse, Inc. v. GL

Cellular, LLC, 957 So. 2d 662 (Fla. 3d DCA 2007). The first issue on appeal is

whether the trial court grossly abused its discretion in denying the motion to vacate

by finding that the affidavit of diligent search was sufficient on its face to hold that

constructive service was effective as to the bona fide purchaser. If the trial judge

5
were to find the affidavit to be defective on its face, service would be void as to the

bona fide purchaser. If the trial judge finds the affidavit sufficient on its face, but

were to determine that a diligent search was not performed, the foreclosure would

be voidable, not void, as to the bona fide purchaser. See generally 33 Fla. Jur. 2d

Judicial Sales § 13 (2009). On the face of the affidavit of diligent search before us,

we find that the affidavit is sufficient for purposes of service by publication and

that the trial court did not grossly abuse its discretion in so holding. In light of

the necessary reliance on the public record by a bona fide purchaser, the affidavit

of diligent search was sufficient on its face to establish that an adequate search had

been made to locate an address for service upon Lewis prior to effecting

constructive service. The resultant foreclosure sale to the bona fide purchaser

cannot be set aside. First Home View Corp. v. Guggino, 10 So. 3d 164 (Fla. 3d

DCA 2009) (holding that trial court errs in vacating final judgment of foreclosure

in sale of property to bona fide purchaser where homeowner is constructively

served by publication and affidavit of diligent search is 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 and foreclosure sale to bona fide purchaser is merely

voidable, and not void, and cannot be set aside); cf. Godsell v. United Guar.

6
Residential Ins., 923 So. 2d 1209 (Fla. 5th DCA 2006) (holding that an affidavit of

diligent search deficient on its face voids service by publication). 4

The trial court did not end its inquiry there. The second issue raised on

appeal is whether there was substantial competent evidence to support the trial

court’s decision finding that a diligent search was conducted to locate an address

for Ms. Lewis.5 We find there was substantial competent evidence. Giron v. Ugly

Mortgage, 935 So. 2d 580 (Fla. 3d DCA 2006). The process server’s testimony

along with his affidavit and return of service substantiate that Lewis did not reside

at the addresses of her property where service was attempted and that she did

reside at an undisclosed and unknown address in the Bahamas. Ms. Lewis never

provided any of her tenants, the mortgage company, the IRS, other interested

parties or business contacts, including the Florida Bar, with her current physical

4
Contra Redfield Invs. v. Vill. of Pinecrest, 990 So. 2d 1135 (Fla. 3d DCA 2008)
(reversing denial of a motion to quash service where affidavit of diligent search
deficient and no bona fide purchaser involved); Shepheard v. Deutsche Bank Trust
Co., 922 So 2d 340 (Fla. 5th DCA 2006), upon which the dissent relies and which
does not apply because the facts are totally different from this case: the rights of a
bona fide purchaser were not involved as they are in this case; the mortgage
servicing company possessed the correct address of the property owners unlike this
case; and only one attempt at personal service was made and returned “seasonal
vacant,” unlike all of the evidence in this case that Lewis lived in the Bahamas at
an undisclosed and undiscoverable address.
5
Although we chose to address the argument raised by Lewis on appeal, we note
that this second step of analysis is not relevant or necessary when the purchaser at
the foreclosure sale is a bona fide purchaser. If the affidavit of diligent search is
legally sufficient, the final judgment of foreclosure is merely voidable as to the
BFP and cannot be set aside.

7
address.6 The evidence shows that Lewis received numerous letters from her

mortgage company advising her of her default status and was notified, as of

November 16, 2007, before the foreclosure was filed, that a collection attorney was

in the process of filing suit. Lewis’s subsequent correspondence in response to that

very letter provided substantial competent evidence from which the trial judge

could correctly conclude that Lewis had notification that she was being foreclosed

upon. She even admits in the affidavit she filed in support of her motion to vacate

that she received the letter, yet she proceeded to negotiate with her mortgagor

through email and P.O. Box number, contending now that, although no one had her

Bahamian address, she would have given it to her mortgage company and

collection firm had they asked for it. This evidence, in conjunction with the search

of the records as outlined in the affidavit of diligent search, the testimony and

proffers of deposition testimony presented before the trial judge at the evidentiary

hearing on the motion to vacate and other facts raised at the hearing constitute

substantial competent evidence to support the trial court’s ruling that a diligent

search was conducted.

6
See Rosado v. Vosilla, 909 So. 2d 505 (Fla. 5th DCA 2005) (citing Kidder v.
Cirelli, 821 So. 2d 1106 (Fla. 5th DCA 2002), which holds that a property owner
who fails to provide his correct address change has no right to complain of lack of
notice of the sale of his property for nonpayment of taxes), aff’d, 944 So. 2d 289
(Fla. 2006).

8
 There was substantial competent evidence to support the decision of the trial

judge. No gross abuse of discretion in the denial of Lewis’s motion to vacate the

final judgment of foreclosure has been demonstrated. We therefore affirm the order

denying the motion to vacate.7

SHEPHERD, J., concurs.

7
We also affirm the order discharging lis pendens.

9
 Dian Lewis v. Fifth Third Mortgage Company
Case No. 3D09-294

ROTHENBERG, J. (dissenting).

Because the record clearly establishes that a diligent search for service of

process was not conducted by Fifth Third Mortgage Company, the default and final

judgment of foreclosure entered against Ms. Lewis must be vacated. Accordingly,

I respectfully dissent.

As the following record evidence was not provided in the majority opinion

and it is essential to the legal analysis establishing why the judgment must be

vacated, that evidence will be briefly addressed. Ms. Lewis, who purchased her

home in 1996, faithfully and timely made all of her mortgage payments. In the

summer of 2005, the property sustained considerable hurricane damage. After

submitting a claim to her insurer, Ms. Lewis learned that her hurricane coverage

had been eliminated by her insurer and her claim was denied. As a result, and with

no notice to Ms. Lewis, the Fifth Third Mortgage Company forced placed

insurance on the property.

In January 2007, when Ms. Lewis received her Escrow Account Statement

from Fifth Third Bank,8 showing a charge of $14,289, she immediately contacted

the mortgage company and was informed about the forced placed insurance. Ms.

8
Fifth Third Bank is the servicing agent of Fifth Third Mortgage Company. Thus,
for simplicity, Fifth Third Mortgage Company and Fifth Third Bank will be
collectively referred to as “mortgage company.”

10
Lewis communicated with the mortgage company via telephone, U.S. mail, and

email on several occasions in an effort to pay the arrearages caused by the forced

placed insurance. Based on the forced placed insurance, Ms. Lewis’ monthly

mortgage payment of $883.50 increased to $4,360. After further communications,

the mortgage company reduced her monthly payments to $2,667.63. Ms. Lewis,

however, continued to dispute the amount and requested a breakdown of the

charges.

In addition to communicating with the mortgage company, Ms. Lewis

contacted the Florida Department of Financial Services on March 20, 2007,

lodging her objections. She explained that after her insurer denied her property

claim for damages sustained by Hurricane Wilma, the mortgage company

purchased an insurance policy in the amount of $14,289 without notice to or

consultation with her, covering fire, theft, and property damage but providing for

no hurricane protection. She became aware of the mortgage company’s unilateral

actions when she received an escrow statement from the mortgage company and

discovered that her escrow account, which was used to pay her property taxes and

insurance, and which always carried a balance, reflected a negative balance as a

result of the forced placed insurance. Ms. Lewis explained that she had obtained

an insurance policy, which included hurricane protection, for an annual premium

of $4,360. The mortgage company, however, was insisting on a monthly payment

11
of $4,337.64, due in large part to the insurance it had purchased, and the mortgage

company was refusing to accept payments unless they were in that amount. On

April 5, 2007, the Florida Department of Financial Services notified Ms. Lewis

that the mortgage company is an Ohio financial institution not within its

jurisdiction, and thus, the Department had forwarded her communication to the

Ohio Department of Commerce.

Shortly thereafter, Ms. Lewis received conflicting communications from the

mortgage company. On April 2, 2007, she received a default letter from the

mortgage company stating that she owed $8,602.45, however, two weeks later, she

received a statement from the mortgage company stating that she owed only

$2,667.63. Ms. Lewis continued to submit her mortgage payments to the mortgage

company while attempting to resolve the problem.

On November 16, 2007, Ms. Lewis received a letter from Florida Default

Law Group, P.I. (“the law firm”), a law firm retained by the mortgage company to

collect the debt by foreclosing the lien on the property. Ms. Lewis immediately

responded and requested a breakdown of the moneys owed. She explained to the

law firm that, while the mortgage company claimed she owed $22,901.96, she

believed the amount owed was $15,199.35; she wanted a breakdown so she could

pay the arrearages; and she wanted to resolve the situation as quickly as possible.

12
 The law firm and Ms. Lewis continued to communicate through emails. On

February 1, 2008, the law firm notified Ms. Lewis that it was “processing an

updated reinstatement letter for [her].” On March 4, 2008, the mortgage company

finally sent Ms. Lewis a letter indicating a reinstatement amount of $27,207, but

without the breakdown Ms. Lewis had been requesting for months. Although the

mortgage company and the law firm were in communication with Ms. Lewis

throughout 2007 and from January 2008 through April 2008, neither the

mortgage company nor the law firm told Ms. Lewis that they were attempting to

serve her to foreclose on the property. The Verified Return of Service reflects that

the law firm retained the process server on November 29, 2007, to serve Ms.

Lewis. On December 22, 2007, when the process server attempted to serve Ms.

Lewis at the property address, he was informed by the tenant residing there that

Ms. Lewis was residing in the Bahamas. Despite being told by Ms. Lewis’ tenant

that Ms. Lewis was residing in the Bahamas, the process server did not attempt to

locate Ms. Lewis in the Bahamas and failed to disclose this information to the trial

court in his Affidavit of Due and Diligent Search, dated March 24, 2008, stating

instead that Ms. Lewis’ whereabouts were unknown.

Although the mortgage company had been communicating with Ms. Lewis

by sending correspondence to her Miami post office box, by email, and directly by

phone, the mortgage company never told Ms. Lewis they were foreclosing on the

13
property. Further, when the process server was unable to serve Ms. Lewis at the

property address and learned that she resided in the Bahamas, the mortgage

company did not simply ask Ms. Lewis during their many communications for her

Bahamian address. Instead, the mortgage company remained silent; failed to

disclose to the trial court that it believed that Ms. Lewis lived in the Bahamas, or

that it had her phone number, post office box address and email and had been in

constant communication with her; and submitted an Affidavit of Due and Diligent

Search, stating that the mortgage company was unable to serve Ms. Lewis because

her whereabouts were unknown.

Statutes governing service of process are to be strictly construed to assure

that defendants are notified of the proceedings and have the opportunity to protect

their rights. Shurman v. Atl. Mortgage & Inv. Corp., 795 So. 2d 952, 953-54 (Fla.

2001); Shepheard v. Deutsche Bank Trust Co. Ams., 922 So. 2d 340, 343 (Fla. 5th

DCA 2006); see also Redfield Invs. A.V.V. v. Vill. of Pinecrest, 990 So. 2d 1135,

1138 (Fla. 3d DCA 2008) (holding that because lack of personal service implicates

due process concerns, the plaintiff must strictly comply with the statutory

requirements); Floyd v. Fed. Nat’l Mortgage Ass’n, 704 So. 2d 1110, 1112 (Fla.

5th DCA 1998) (holding that constructive service statutes require strict

compliance). Additionally, “[t]he failure to strictly adhere to the statutes’

14
requirements deprives the court of jurisdiction over the defendant improperly

served.” Shepheard, 922 So. 2d at 343 (emphasis added).

Although service of process by publication in a foreclosure action is

permitted, see § 49.011, Fla. Stat. (2007), a mortgage holder may only resort to

service of process by publication “[w]here personal service of process or . . .

service of process under s. 48.194 cannot be had.” § 49.021, Fla. Stat. (2007)

(emphasis added); see Taylor v. Lopez, 358 So. 2d 69, 70 (Fla. 3d DCA 1978)

(holding that section 49.021 only authorizes service by publication when the

plaintiff cannot effect personal service on a defendant).

Additionally, although a mortgage holder submits an affidavit of diligent

search, this does not end the inquiry. Shepheard, 922 So. 2d at 343. The trial court

must still determine whether the mortgage holder actually conducted a diligent

search. Redfield, 990 So. 2d at 1188; Giron v. Ugly Mortgage, Inc., 935 So. 2d

580, 582 (Fla. 3d DCA 2006); Demars v. Vill. of Sandalwood Lakes Homeowners

Ass’n, 625 So. 2d 1219, 1224 (Fla. 4th DCA 1993). “[W]hen a plaintiff seeks

service of process by publication, ‘an honest and conscientious effort, reasonably

appropriate to the circumstances, must be made to acquire the information

necessary to fully comply with the controlling statutes.’” Gans v. Heathgate-

Sunflower Homeowners Ass’n, 593 So. 2d 549, 551-52 (Fla. 4th DCA 1992)

(quoting Klinger v. Milton Holding Co., 186 So. 526, 534 (Fla. 1938)).

15
 The test to determine whether the plaintiff conducted a diligent search is

“whether 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.” Canzoniero v. Canzoniero, 305 So. 2d 801,

803 (Fla. 4th DCA 1975). Although this Court in Redfield noted that the case law

has not drawn a bright line between efforts that demonstrate due diligence and

those that do not, this Court concluded that the failure to inquire of the most likely

source to obtain information as to the whereabouts of the defendant “falls short of

the statutory and constitutional requirements necessary to satisfy this state’s

service of process by publication law.” Id. at 1139.

It is clear from the record evidence that the mortgage company failed to

“reasonably employ[] the knowledge at [its] command, [make a] diligent inquiry,

and exert[] an honest and conscientious effort appropriate to the circumstance to

acquire . . . personal service on” Ms. Lewis. Canzoniero, 305 So. 2d at 803. The

mortgage company was in possession of Ms. Lewis’ Miami post office box

number, telephone number, and email address. The process server was told that

Ms. Lewis was living in the Bahamas. Despite being in possession of this

information, and despite the fact that the mortgage company had been in constant

communication with Ms. Lewis during the entire time it was attempting to notify

16
her of the foreclosure proceedings, the mortgage company inexplicably failed to

inform her of the foreclosure proceedings, ask her for her current address, or

attempt to obtain her Bahamian address through any other means. Thus, while the

Affidavit of Diligent Search was facially sufficient because it alleged that a

diligent search was made, the instant record demonstrates that the mortgage

company did not conduct a diligent search. Therefore, the trial court reversibly

erred by denying Ms. Lewis’ motion to vacate the default and the final summary

judgment of foreclosure. See Shepheard, 922 So. 2d at 345 (finding that the

default judgment entered against Ms. Shepheard was void due to defective service

of process where the mortgage holder failed to follow leads likely to reveal her

residence).

By simply asking Ms. Lewis to provide her current address, the mortgage

company potentially could have properly served her in the Bahamas either by

personal service of process or by substitute service of process through registered

mail, in strict compliance with section 48.194, Florida Statutes (2007). If upon

inquiry, Ms. Lewis refused to provide her current address, the mortgage company

could have attempted to locate her Bahamian address by other means. The

mortgage company, however, falsely claimed that it had conducted a diligent

search, Ms. Lewis’ whereabouts were unknown, and it had no recourse but to serve

her by publication.

17
 A judgment against a defendant based upon improper service by publication

lacks authority of law. Shepheard, 922 So. 2d at 345; Batchin v. Barnett Bank of

Sw. Fla., 647 So. 2d 211, 213 (Fla. 2d DCA 1994). “Such improper service

renders the judgment either void or voidable.” Shepheard, 922 So. 2d at 345; see

also Decker v. Kaplus, 763 So. 2d 1229, 1230 (Fla. 5th DCA 2000); Reina v.

Barnett Bank, N.A., 766 So. 2d 290, 291 (Fla. 4th DCA 2000). If the service is

irregular or defective but the defendant actually receives notice of the

proceedings, the judgment is voidable. Shepheard, 922 So. 2d at 345; Decker,

763 So. 2d at 1230. However, where the service of process is so defective that it

amounts to no notice of the proceedings, it is void. Reina, 766 So. 2d at 292. A

void judgment is a nullity. M.L. Builders, Inc. v. Reserve Developers, LLP, 769

So. 2d 1079, 1082 (Fla. 4th DCA 2000) (citing Ramagli Realty Co. v. Craver, 121

So. 2d 648, 654 (Fla. 1960)).

I would find, as the Fourth District found in Gans and the Fifth District

found in Shepheard, that the record establishes that the mortgage company’s

service by publication was void. Where service by publication is void, reversal of

the order of sale will defeat the title of the non-party who purchased the property in

good faith at the judicial sale. Gans, 593 So. 2d at 553; Citibank, N.A. v. Data

Lease Fin. Corp., 645 F.2d 333, 336 (5th Cir. 1981) (citing Garvin v. Watkins, 10

So. 818 (1892)).

18
 In summary, the mortgage company failed to conduct a diligent search in

strict compliance with the Florida statutes governing service of process. Because

the mortgage company has the burden of proof when invoking jurisdiction of the

court and it failed to establish that Ms. Lewis had notice of the legal proceedings

against her, the judgment against her is void and must be vacated.

19