RAFAEL BENAVENTE and CLARA E. BENAVENTE v. OCEAN VILLAGE PROPERTY OWNERS ASSOC., INC.

Citation: 260 So. 3d 313Docket: 18-1819

Court: District Court of Appeal of Florida; November 27, 2018; Florida; State Appellate Court

Original Court Document: View Document

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Rafael and Clara Benavente appeal a nonfinal order from the Circuit Court, which denied their Motion to Vacate a Certificate of Title, Certificate of Sale, Final Default Judgment of Foreclosure, and a Motion to Quash Constructive Service of Process. The appeal centers on the claim that the Ocean Village Homeowner’s Association did not exercise due diligence in serving the Homeowners at their primary address and that the Affidavit for Service by Publication was deficient. 

The Association initiated foreclosure proceedings for unpaid assessments, sending demand letters to three addresses, including the Homeowners' primary residence on Harbor Drive, where they acknowledged receipt of a letter. However, the Association attempted service solely at the Fort Pierce property, which was under foreclosure. After multiple unsuccessful attempts to serve the Homeowners at the Fort Pierce property—characterized by no answers or signs of occupancy—the Association filed an Affidavit of Non-Service, claiming the Homeowners could not be located in Florida and initiated service by publication.

The Affidavit for Service by Publication included claims of a diligent search using various investigative methods, asserting that the Homeowners' residences were unknown. This resulted in service being published twice, leading to a default due to the Homeowners' lack of response, followed by a final default judgment and foreclosure of the property.

The Homeowners contested that a diligent search was not conducted, as public records would indicate their primary residence was the Harbor Drive property, which the Association was aware of due to prior litigation. They also stated that the Association knew the Fort Pierce property was a rental and possessed their email address. The appellate court reversed and remanded the trial court's ruling on constructive service, finding the Association's service attempts inadequate.

At the hearing regarding the Motion to Vacate and Quash, the Homeowners argued that the absence of a vehicle at the Fort Pierce property suggested it was unoccupied, which should have prompted the Association to serve them at their other addresses. The Association acknowledged sending demand letters to two Miami addresses and confirmed that the Homeowners signed for certified mail at the Harbor Drive property. However, the Association's counsel claimed that mail service had been cut off at the Harbor Drive address, leading them to believe the Homeowners did not reside there. The Association attempted service shortly after a hurricane when access to the Keys was restricted. The court found insufficient evidence to grant the Homeowners' motion and subsequently denied a request for rehearing, prompting an appeal.

The order denying the motion to vacate a default judgment is subject to an abuse of discretion review, while orders granting such motions are reviewed for gross abuse of discretion. Substitute service statutes are exceptions to the requirement for personal service and must be narrowly interpreted to uphold defendants' due process rights. The essential purpose of service is to ensure that a defendant receives notice of claims against them, thereby establishing jurisdiction. When constructive service is sought, the trial court must evaluate the sufficiency of the plaintiff's affidavit of diligent search and whether an adequate search was conducted to locate the defendant. Substitute service is impermissible if personal service can be achieved with reasonable diligence, emphasizing the need for a conscientious effort to effectuate service. If a trial judge finds the affidavit defective, the service is void; if the affidavit is sufficient but the search inadequate, the foreclosure is voidable, not void.

In Martins, the Fifth District addressed a foreclosure complaint filed by a homeowners’ association against Martins. The association attempted to serve Martins at his property but found it unfurnished and without power. A neighbor indicated that Martins was infrequently present. The association then submitted an affidavit for service by publication, detailing its efforts to locate Martins, and published a notice in a local newspaper, resulting in a default judgment and subsequent sale of the property. Martins contested the foreclosure, arguing that the association's search was inadequate, as it did not consult public records beyond Osceola County or attempt service at his known address in Cutler Bay, Florida, where he had previously received correspondence. The Fifth District concluded that the association's search lacked diligence and the affidavit was misleading, as it did not mention the Cutler Bay address. The court reversed the trial court's denial of Martins' motion to vacate the judgment, stating the foreclosure was void due to the defective affidavit and insufficient search efforts. The case established that a foreclosure can be void if the service affidavit is inaccurate and the search for the defendant is not thorough.