Failure to Check DMV Records Rendered Search for Defendant Inadequate

Shumaker, Loop & Kendrick, LLP

In this Home Owners Association (HOA) lien foreclosure case, the Plaintiff was unable to locate the Defendant for service. HOA’s attorney filed an affidavit for service by publication, alleging:

a) I sent a Demand letter to the last known address of 2119 The Oaks Boulevard, Kissimmee, FL 34746. No response was received from the defendant.

b) I hired a process server at Magic Process to serve summons on Defendants, Sergio Martins and Unknown Spouse of Sergio Martins. Process Server stated that the property was unoccupied at the time of service.

c) I have searched for the Defendant with the Osceola County Property Appraisers office to determine if there are other properties the Defendant may own and/or reside in. I have found no other property owned by Sergio Martins and Unknown Spouse of Sergio Martins

d) I have searched for the Defendant by name and by address in a popular background database search service known as We have not found another address aside from the aforementioned addresses at which the Process Server attempted service on the Defendants.

e) I have searched for the Defendants by name using World Wide Web based telephone listings. I have found no listing.

f) I have sent the U.S. Post Office a change of address/physical address request and they reported that they had no forwarding information for Defendant.

g) I have searched the Florida Department of Corrections on them to see if they had been incarcerated.

h) I have searched the Osceola County Inmate Records on them to see if they have been incarcerated.

i) I have searched Clerks website of Osceola County, Florida. I found the Deed that was recorded for subject property when they purchased the property. The address on the Deed is 2119 The Oaks Blvd., Kissimmee, FL 34746. There is no recorded mortgage on this property.

2. The age of the Defendant is unknown to Affiant.

3. The residence of the Defendant is unknown to Affiant.

4. The Defendant, having residence in Florida, has been absent from there for more than 60 days prior to the making of this affidavit, or conceals him/herself so that process cannot be served personally upon him/her, and that Affiant believes that there is no person in the state upon whom service of process would bind this absent or concealed Defendant.

Service was accomplished by publication, Judgment was entered, the property sold at a foreclosure auction, and the locks changed.  At which point Defendant was notified by neighbors that his furniture was on his front yard.  Defendant filed a Motion to Vacate the Judgment alleging that he resided at a different address in Florida, that his address was available in the public records including the Florida DMV, and that the HOA had sent him a letter at his current address several years prior.

The Court granted the Motion to Vacate finding that the HOA should have requested the Defendant’s records from the Florida DMV and should have attempted service at all addresses in their records.

Martins v. The Oaks Master Property Owners Assoc., 39 Fla. L. Weekly D2385a, Case No. 5D13-3852 (5th DCA Nov. 14, 2014)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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