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Gross v. Fidelity Federal Savings Bank of Florida
Citations: 579 So. 2d 846; 1991 Fla. App. LEXIS 4430Docket: No. 91-0348
Court: District Court of Appeal of Florida; May 15, 1991; Florida; State Appellate Court
A foreclosing mortgagee cannot serve an out-of-state mortgagor through publication if the mortgagee knows the mortgagor's residence address; personal service must be attempted instead. In the case of Fidelity vs. Robert and Carol Gross, Fidelity sought to foreclose on property but claimed it could not serve the Grosses personally, despite having their last known address in Connecticut. The affidavit submitted lacked evidence of efforts to mail documents to that address. After a default judgment was entered, the Grosses filed a motion to quash the service and vacate the default, asserting they could be personally served at their known address. The trial court denied the motion, leading to an appeal. The relevant statute, section 49.021, states that publication service may only be used when personal service cannot be accomplished. This interpretation is supported by established legal precedent, which emphasizes that constructive service laws are strictly construed against those seeking to utilize them. Previous rulings, including Risman v. Whittaker, allowed publication for out-of-state defendants under certain conditions, but more recent case law, particularly Bedford Computer Corp. v. Graphic Press Inc., clarified that personal service must be attempted first when the defendant's address is known. The court highlighted that personal service is the most reliable method for notifying a defendant of legal actions against them. Although the Risman case was not explicitly overruled, the principles established in Bedford suggest that constructive service by publication is not permissible when the serving party is aware of the defendant's address. The court emphasizes that the Due Process Clause of the Fourteenth Amendment prohibits the use of constructive service by publication for non-resident defendants when their addresses are known. Citing Mullane v. Central Hanover Trust Co., it argues that mere publication is insufficient for adequate notice, as it does not reliably inform those affected, particularly if they reside outside the newspaper’s circulation area. The court critiques reliance on publication, noting that it often fails to reach interested parties, thereby undermining the due process requirement. This principle has been reaffirmed in subsequent cases, including Mennonite Board of Missions v. Adams and Tulsa Professional Collection Services Inc. v. Pope, and is applicable to mortgage foreclosures in Florida. The ruling asserts that if personal service can be achieved, publication should not be used. Consequently, the order is reversed, and the case is remanded to quash the service of process and vacate the default, with motions for attorney’s fees denied.