I often meet with individuals who are shocked because they recently found
out that a lawsuit had been filed against them months or even years earlier.
They came to find out about the action after the plaintiff obtained a
final judgment and was attempting to collect on the judgment. There are
laws in place that govern how process is to be served to prevent situations
like the one I just described from occurring. But, these laws do not often
result in the defendant receiving actual notice of the litigation. Process
provides a defendant with adequate notice that is reasonably calculated
to let interested parties know about the existence of a court case and
give them an opportunity to defend it by presenting their objections.
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950);
Greene v. Lindsey, 456 U.S. 444, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982);
Springbrook Commons, Ltd. v. Brown, 761 So. 2d 1192, 1194 (Fla. Dist. Ct. App. 2000).
Service of process occurs when the defendant in an action is delivered
a copy of the petition, complaint or other initial paper or initial pleading.
Fla. Stat. Ann. § 48.031 (West). The best way of providing notice
to the defendant is by serving the defendant personally.
Springbrook Commons, Ltd. v. Brown, 761 So. 2d 1192, 1194 (Fla. Dist. Ct. App. 2000). However, this is not
always possible because defendants are sometimes hard to locate. But,
just because the plaintiff is unable to serve the defendant personally
does not mean that the case will not proceed. Florida Statutes Chapter
48 lists various additional mechanisms available to a Plaintiff to who
is trying to serve you.
- They can leave copies with a person who lives with you and is at least
fifteen years old and whom they inform of the contents.
- The process server can contact your employer and your employer must let
the process server serve you in a private area that your employer designates.
Should your employer refuse to comply he may be subject to a noncriminal
violation punishable by a fine.
- They can serve your spouse so long as a) the cause of action isn’t
an adversary proceeding that is between you and your spouse, b) your spouse
lives with you and c) your spouse requests that they do so. They do not
have to serve your spouse at your house. They can actually serve your
spouse anywhere in the county.
- If you are doing business as a sole proprietor they can try and serve you
directly at your place of business. However, after two unsuccessful attempts
at trying to serve you at your place of business, they can then serve
you via substitute service by serving the person in charge at the business
at the time they come to serve process.
This is not an exhaustive list. The Florida Statutes provide various other
mechanisms available to a Plaintiff. One of these includes Service by
Publication, also known as Constructive Service of Process. Service by
publication is only proper if a) the plaintiff was unable to accomplish
personal service and b) it is one of the kinds of cases that are listed
in the statute that authorizes constructive service by publication.
Giron v. Ugly Mortg., Inc., 935 So.2d 580 (2006). The statute that authorizes constructive
service of process by publication is Florida Statutes chapter 49. It states
that in the case where a defendant is a natural person, the Plaintiff
must provide a sworn statement that shows, amongst other things, that
the Plaintiff conducted a diligent search to try and find the defendant’s
name and residence. Fla. Stats. § 49.041. After complying with this
requirement and the various other requirements outlined in Chapter 49,
the plaintiff can file the sworn statement with the court and can have
the clerk or judge issue a notice of action that states the names of the
defendants, the type of case or proceeding that it is, the title of the
case, the name of the court and the description of the real property that
is the subject of the proceeding, amongst other things. Fla. Stat. §
49.08. The plaintiff shall then publish the notice of action in a newspaper
that is published in the same county as the court. Fla Stat. 49.10. The
plaintiff may have to publish the notice once a week for two consecutive
weeks or once a week for four consecutive weeks depending on the type
of case. Section 10(c) of Florida Statutes Chapter 49 requires that notices
of action in foreclosure cases be published once a week for two consecutive weeks.
If you are properly served by publication, you are presumed to have been
given notice of the action pending against you. However, the bar for a
plaintiff to be able to serve someone by publication is pretty high. For
instance, if the plaintiff did not conduct a “diligent search”
to try and locate you, service by publication is improper. Numerous cases
lay out what does and does not constitute a diligent search. If you recently
found out about a case in which you were never served or were served by
publication, you should contact a competent litigation attorney immediately
to defend your rights.
For more information on wrongful actions please visit our website at:
Loan Lawyers has helped over 5,000 South Florida homeowners and consumers
with their debt problems contact us to see how we may be able to help you.