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Residing out of Florida While Facing Foreclosure on Your Property in Florida

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), Citing 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 by publication 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.