Following the proper methods for service delivery is crucial for process servers because cases can fall apart when these legal professionals are lax in their duties. The case of Santiago v. Wilmington Trust is an example of why service of process is so important and how complex the requirements can be.
Background
Santiago’s mortgage lender filed a complaint against him to initiate foreclosure proceedings. Personal service of the complaint did not occur, with the lender claiming their process server was unable to locate Santiago. An affidavit of diligent search and inquiry was filed, stating that the process server attempted to serve Santiago at numerous locations, including his residential address. The mortgage lender then, nine months later, filed an affidavit for service of publication that claimed Santiago’s address was unknown.
Because Santiago did not respond to the complaint filed by the mortgage lender, the lender moved for a default judgment against Santiago. This judgment was granted by the clerk of the court. A hearing was held for entry of a final summary judgment of foreclosure, and the property was sold and titled to a third party. After the certificate of title was issued to the new buyer, Santiago filed a motion and supporting affidavit challenging the validity of the process server’s affidavit.
Decision and Appeal
The 9th Judicial Circuit Court granted and entered the foreclosure judgment. Santiago appealed, and the case was brought to the District Court of Appeal of Florida for a decision on whether service of process was properly executed. Santiago specifically claimed that the mortgage lender did not diligently conduct a search to locate and serve him personally with the complaint, which makes the service of process in the case defective.
Florida Statute states that publication as a method of service is acceptable, but only if personal service cannot be obtained[1]. Foregoing personal service creates potential issues involving due process, which contributes to the emphasis on the method of service, but determining what constitutes a diligent effort to locate and serve someone is not always clear. This is one of the issues the Court was tasked with deciding upon.
In conducting their determination of whether the plaintiff, via their process server, made an adequate effort to locate and serve Santiago, the Court considered various evidence offered by both parties. One of the more significant factors in the Court’s decision was the fact that the mortgage lender had direct communication with Santiago for months, but the bank failed to inform him of the foreclosure suit or mention its efforts to serve him with a complaint.
Ultimately, the Court of Appeal decided that reversal of the lower court’s order was warranted because the affidavit filed to initiate service by publication was legally insufficient.
[1] https://flsenate.gov/Laws/Statutes/2021/49.011