5D04-2369 Shepheard v.Deutsche Bank Trust

SUPREME COURT CASES

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-2369

Case Date: 02/20/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2006 NIGEL SHEPHEARD AND HEATHER SHEPHEARD, Appellant, v. DEUTSCHE BANK TRUST COMPANY AMERICAS, ET AL., Appellee. ________________________________/ Opinion filed February 24, 2006 Appeal from the Circuit Court for Osceola County, R. James Stroker, Judge. Tompkins A. Foster, William M. Lindeman, and Wayne E. Klinkbeil of Foster, Lindeman, & Klinkbeil, P.A., Orlando, for Appellant. Laura M. Carbo of the Law Offices of Marshall C. Watson, P.A., Ft. Lauderdale, for Appellee. PALMER, J. Nigel and Heather Shepheard timely appeal the trial court's final judgment of foreclosure. Concluding that Nigel Shepheard is not entitled to receive any appellate relief, we affirm the trial court's order as to him. However, concluding that service of process was never properly perfected against Heather Shepheard and that she did not voluntarily appear in the lawsuit, we reverse the trial court's order as to her. The Shepheards are citizens and residents of the United Kingdom. In 1998, they purchased real property located in Kissimmee, Florida as a second home. The Shepheards financed the purchase of their home and Deutsche Bank holds the Case No. 5D04-2369

mortgage thereon. The Shepheards made all mortgage payments on the home until November of 2002, when their checking account refused a debit for insufficient funds. On February 5, 2003, Deutsche Bank filed a complaint in foreclosure, alleging that the Shepheards had defaulted on the note and mortgage from November 1, 2002 forward. Deutsche Bank made only one attempt to personally serve its complaint on the Shepheards. Specifically, service was attempted at the Shepheards' Kissimmee address and was returned unserved with a note stating "seasonal vacant." Deutsche Bank then filed an affidavit of constructive service alleging that it had "made diligent search and inquiry to discover the name and residence of Heather Shepheard; Nigel Shepheard." The affidavit further alleged that the Shepheard's residence was unknown, and that the bank was "unable to determine if said defendant(s) are living or dead." Deutsche Bank attached an affidavit of due and diligent search, which noted that property tax notices were being sent to the Shepheards at an address in England (which was an old address). Deutsche Bank did not attempt service through registered mail as authorized by section 48.194, Florida Statutes (2003), to any address in England. On March 20, 2003, a notice of action was mailed to the Shepheards' Kissimmee address and their old address in England. The notice sent to Kissimmee was returned as undeliverable. Deutsche Bank then moved for summary judgment on March 27, 2003. A copy of the motion was mailed to the Shepheards at their Kissimmee address and the old address in England. In response to this mailing, the court received a letter, dated April 3, 2003, from a couple living in England, informing the court of the Shepheards' correct address.

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Deutsche Bank filed proof of publication on May 29, 2003, alleging that its notice of action was published in an Osceola County newspaper. Also, on May 29, 2003, Deutsche Bank moved for default against Heather. The clerk entered a default against Heather on May 30, 2003. On June 30, 2003, the court filed a letter and attachments received from Nigel. The letter claimed that Homecomings, the Shepheards' mortgage servicing company, improperly failed to resume debiting his account for mortgage payments after November of 2002, and that by the time he attempted to reinstate the account Homecomings had already transferred the account to a new servicing company. The letter claimed that Nigel had attempted to reinstate the account by providing a check to Homecomings, which had endorsed it, but the new servicing company refused to accept the check because it was not made payable to it. Nigel asked that the foreclosure case be dismissed, that the new servicing company accept his payments and pay his legal costs, and that his late charges be quashed. On December 1, 2003, the court entered an order setting the case for non-jury trial on the docket beginning May 24, 2004. The court mandated personal attendance at a pretrial conference scheduled for May 10, 2004. The court warned that nonattendance could result in dismissal or default. A copy of this order was mailed to the Shepheards' correct address in England. Nigel did not attend the pretrial conference. On May 27, 2004 the court entered a final judgment of mortgage foreclosure in favor of Deutsche Bank, and ordered a public sale of the Shepheards' Kissimmee property. On June 2, 2004, the court received a fax from Nigel. The fax stated that Nigel had just received a letter from counsel for Deutsche Bank, dated May 12, 2004, stating 3

that the case was to be heard on May 27th. The letter requested that the court set aside the foreclosure judgment. The court deemed Nigel's letter as constituting a motion to set aside foreclosure judgment and then denied same. The Shepheards filed a timely notice of appeal. On appeal, the Shepheards first contend that the judgment entered against Heather is invalid because she was never served with process, and the bank failed to comply with the statutory requirements for constructive service. We agree. Statutes governing service of process are strictly construed to assure that defendants are notified of the proceedings and have the opportunity to protect their rights. Shurman v. Atlantic Mortg. & Inv. Corp., 795 So. 2d 952, 953-54 (Fla. 2001); Torres v. Arnco Constr., Inc., 867 So. 2d 583, 586 (Fla. 5th DCA 2004). The party invoking the court's jurisdiction has the burden of proving the validity of service of process. Torres, 876 So. 2d at 587. The constructive service statutes require strict compliance. Floyd v. Fed. Nat'l Mortgage Ass'n., 704 So. 2d 1110, 1112 (Fla. 5th DCA 1998). The failure to strictly adhere to the statutes' requirements deprives the court of jurisdiction over the defendant improperly served. Anthony v. Gary J. Rotella &

Assocs., P.A., 906 So. 2d 1205, 1207 (Fla. 4th DCA 2005). A mortgage holder may serve process by publication in a foreclosure action. See

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