We have seen a few cases where our clients reside out of state or even
out of the country and they have a property in Florida that is being foreclosed
on by the bank. What we have unfortunately seen, is that the banks will
attempt service at the Florida address even though they know that the
homeowner lives out of state or even out of the country. The reason they
do this, is because it is expensive and time consuming for the banks to
serve someone out of state or out of the country. What many banks will
do, is they will serve homeowners by publication and will claim that they
did not know the homeowner lived out of state.
In addition, Florida courts have recognized that there must be strict compliance
with the requirements of service of process by publication.
Tindal v. Varner, 667 So.2d 890 (Fla. 2nd DCA 1996). A Plaintiff seeking service by publication
must prove that it made “an honest and conscientious effort, reasonably
appropriate to the circumstances, to acquire the information necessary
to fully comply with the controlling statutes.”
Godsell v. United Guaranty Residential Insurance, 923 So.2d 1209 (Fla. 5th DCA 2006),
Dor Cha, Inc. v. Hollingsworth, 876 So.2d 678, 680 (Fla. 4th DCA 2004). In Godsell, the Defendant was
a permanent resident of Canada, but her address reflected in the mortgage
was a property located in Florida. The Plaintiff attempted to serve the
Defendant at his Florida address and then resorted to constructive service
even though the Plaintiff was put on notice that the Defendant lived in Canada. As a result, the Court held that Plaintiff did not meet the minimum requirements
of the “diligent search and inquiry” and that Service by Publication
was void and reversed judgment for the Bank.
Godsell, 923 So.2d at 1215.
Therefore, if you reside out of state or country and have a property in
Florida, please ensure you provide the bank with notice
in writing that you reside in another state or country and send them your
address. If there is a default and the bank forecloses on you when they
had notice you resided out of state or country, we will be able to argue
that the banks judgment is void and overturn the judgment. However, the
key factor is that the homeowner must provide notice to the bank in writing.
Without this, it will be very difficult to overturn the judgment.