Fourth District Tightens Requirements for Service by Publication

On August 17, 2011, Florida's Fourth District Court of Appeal, in Parker v. LaSalle Bank National Association, Case No. 4D10-482, articulated the requirements for an affidavit of diligent search that establishes "reasonable diligence" (i.e. justifying substitute service of a complaint).

In this case, LaSalle Bank ("LaSalle") filed a complaint to foreclose on a note and mortgage. After LaSalle unsuccessfully attempted to personally serve the defendant, LaSalle filed an affidavit of constructive service with an affidavit of diligent search. The affidavit showed that personal service could not be made despite a diligent search and inquiry to determine the defendant's whereabouts.

The Fourth District held that LaSalle did not conduct a sufficient diligent search that could support constructive service of process, based on the following factors: i) the process server's affidavit stated that the defendant's residence was occupied by a tenant, but did not indicate how this was determined; ii) the affidavit did not specify that the process server had inquired concerning the whereabouts of the actual defendant; iii) the affidavit did not specify what attempts were made to contact neighbors; and iv) the affidavit did not indicate that a response had been received from the post office under a Freedom of Information Act ("FOIA") inquiry, requesting the defendant's updated address from the local post office.

Following the holding in this case, it is important to ensure that the required affidavit of diligent search is substantive and demonstrates that the process server made diverse attempts to locate the defendant.

The decision can be found here.

Categories: LitigationCivil Procedure
Tags: Jamie A. ColeEdward G. GuedesMichael S. PopokJoseph H. SerotaService of ProcessService by PublicationFort Lauderdale Business Litigation AttorneysFort Lauderdale Business Litigation LawyersMiami Commercial Litigation AttorneyMiami Commercial Litigation LawyerSouth Florida Commercial Litigation AttorneySouth Florida Commercial Litigation LawyerSouth Florida Business Dispute Litigation AttorneysSouth Florida Business Dispute Litigation LawyersSouth Florida Private Transactions AttorneysSouth Florida Private Transactions LawyersFort Lauderdale Private Transactions AttorneysMiami Private Transactions AttorneysMatthew H. Mandel
Author(s): Daniel A. Seigel