        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

           RAFAEL BENAVENTE and CLARA E. BENAVENTE,
                          Appellants,

                                      v.

   OCEAN VILLAGE PROPERTY OWNERS ASSOCIATION, INC., and
                 GUIVAZ ENTERPRISES, LLC,
                         Appellees.

                               No. 4D18-1819

                            [November 28, 2018]

   Appeal of nonfinal order from the Circuit Court for the Nineteenth
Judicial Circuit, St. Lucie County; Robert E. Belanger, Judge; L.T. Case
No. 562018CA000085AXXXHC.

  David J. Miller of Law Offices of Damian G. Waldman, P.A., Largo, for
appellants.

    J. Henry Cartwright of Fox McCluskey Bush Robinson, PLLC, Stuart,
for appellee Ocean Village Property Owners Association, Inc.

  Patrick Dervishi of Shir Law Group, P.A., Boca Raton, for appellee
Guivaz Enterprises, LLC.

PER CURIAM.

    Rafael and Clara Benavente (“the Homeowners”) appeal a nonfinal order
denying their Motion to Vacate Certificate of Title, Certificate of Sale, Final
Default Judgment of Foreclosure, and Clerical Defaults and Motion to
Quash Constructive Service of Process (“Motion to Vacate and Quash”).
Given that Ocean Village Homeowner’s Association (“the Association”) did
not properly exercise due diligence in its efforts to personally serve the
Homeowners at their primary address and presented a facially deficient
Affidavit for Service by Publication, we reverse and remand the trial court’s
finding that constructive service of process by publication was proper.

   The Association filed a complaint against the Homeowners, seeking to
foreclose on a lien for unpaid assessments. Counsel for the Association
sent pre-suit demand letters to three addresses: a Fort Pierce property
being foreclosed on, and two Key Biscayne properties—one on Harbor
Drive and one on Crandon Boulevard.

   The Homeowners signed a certified mail receipt at the Harbor Drive
property, acknowledging receipt of the pre-suit demand letter. However,
the Association only attempted to serve the Homeowners at the Fort Pierce
property.

   After failing to locate and serve the Homeowners, the Association filed
an Affidavit of Non-Service that reflected seven attempts of service at the
Fort Pierce property—and each attempted service noted that there was no
answer at the door, there was no vehicle in the driveway, and/or the
property seemed vacant. 1

   Thereafter, the Association filed an Affidavit for Service by Publication
that alleged that the Homeowners could not be found within Florida.
Relevantly, the affiant certified the following as true:

         4. That Affiant has made a diligent search, an honest and
         conscientious effort and inquiry and good faith efforts on
         information available to located [the Homeowners] by use of:
            a. Process servers/investigators,
            b. Computerized legal research and people trackers,
            c. Skip traces, and
            d. DBPR license searches.

         5. That the residences of [the Homeowners] is unknown and
         attempts to track down [the Homeowners] at other known
         addresses reasonably available to Plaintiff have been
         unsuccessful.

   As a result of the Affidavit for Service by Publication, service was
published twice in the St. Lucie News Tribune. Due to a lack of response
within thirty days, the Association moved for, and the clerk entered, a
default. Then, the Association moved for, and the trial court entered, a
final default judgment. Consequently, the Fort Pierce property was sold
at a foreclosure auction to a third party to whom title was transferred.

   The Homeowners subsequently filed the aforementioned Motion to
Vacate and Quash, along with affidavits in support of the motion.
According to these filings, a diligent search was not conducted because
the applicable public records would indicate that the Homeowners’

1   Two entries noted the placement and removal of a card or note.

                                         2
primary residence was the Harbor Drive property where they had resided
since 2010. Further, they claimed that the Association knew their primary
address, there had been prior litigation between the parties, the
Association knew the Fort Pierce property was a rental property, and the
Association possessed the Homeowners’ email address.

    At the hearing on the Motion to Vacate and Quash, the parties
essentially recounted the facts as described above with a few additions.
The Homeowners contended that, since there was no car in the driveway
of the Fort Pierce property and it “appeared vacant,” it was reasonable to
presume that no one lived there; yet, for some unexplained reason, the
Association did not attempt to serve the Homeowners at either the Harbor
Drive or Crandon Boulevard addresses.

   The Association acknowledged that the demand letters were sent to
“two different Miami addresses,” and conceded that the Homeowners
signed the certified mail receipt at the Harbor Drive property. However,
counsel for the Association claimed that “mail had been shut off at the
Harbor Drive [property],” which caused the Association to believe that the
Homeowners did not live there either. Counsel further maintained that
the Association attempted service three weeks after a hurricane, but
“access to the Keys had been cut off and people had been evacuated.”

    The court ultimately determined there was “insufficient evidence to
grant the motion,” and denied the Homeowners’ Motion to Vacate and
Quash. An order was later entered to that effect. The trial court denied a
subsequent motion for rehearing filed by the Homeowners, and this appeal
followed.

   “An order denying a motion to vacate a default judgment is reviewed
under an abuse of discretion standard.” Fla. Eurocars, Inc. v. Pecorak, 110
So. 3d 513, 515 (Fla. 4th DCA 2013); see also Lloyd’s Underwriter’s At
London v. Ruby, Inc., 801 So. 2d 138, 139 (Fla. 4th DCA 2001) (“It is an
order granting a motion to vacate which is reviewed under a gross abuse
of discretion standard.” (Emphasis in original)).

   We recently stated:

      “Substitute service statutes are an exception to the rule
      requiring personal service, and . . . must be strictly construed
      . . . to protect a defendant’s due process rights.” Clauro
      Enters., Inc. v. Aragon Galiano Holdings, LLC, 16 So. 3d 1009,
      1011 (Fla. 3d DCA 2009). The fundamental purpose of service
      is to give proper notice to a defendant in a case so that the

                                     3
      party is answerable to the claim of the plaintiff and, therefore,
      to vest jurisdiction in the court entertaining the controversy.
      Shurman v. Atl. Mortg. & Inv. Corp., 795 So. 2d 952, 953 (Fla.
      2001). Where constructive service is attempted, the trial court
      must determine both whether the affidavit of diligent search
      filed by the plaintiff is legally sufficient, and whether the
      plaintiff conducted an adequate search to locate the
      defendant. Giron v. Ugly Mortg., Inc., 935 So. 2d 580, 582 (Fla.
      3d DCA 2006) (citing Se. & Assocs., Inc. v. Fox Run
      Homeowners Assoc., Inc., 704 So. 2d 694, 696 (Fla. 4th DCA
      1998)). Substitute service is unauthorized if personal service
      could be obtained through reasonable diligence; the test is
      “whether the complainant reasonably employed knowledge at
      his command, made diligent inquiry, and exerted an honest
      and conscientious effort appropriate to the circumstances, to
      acquire the information necessary to enable him to effect
      personal service on the defendant.” Coastal Capital Venture,
      LLC v. Integrity Staffing Sols., Inc., 153 So. 3d 283, 285 (Fla.
      2d DCA 2014) (citations omitted). This is because “there is a
      strong public policy interest in seeing that a defendant
      receives notice of any action against him so that he may have
      his day in court in accordance with due process
      requirements.” Id.

Green Emerald Homes, LLC v. Bank of New York Mellon, 204 So. 3d 512,
515 (Fla. 4th DCA 2016); accord § 49.011, Fla. Stat. (2017); § 49.021, Fla.
Stat. (2017); § 49.041, Fla. Stat. (2017); Martins v. Oaks Master Prop.
Owners Ass’n, Inc., 159 So. 3d 142, 145-46 (Fla. 5th DCA 2014); First
Home View Corp. v. Guggino, 10 So. 3d 164, 165 (Fla. 3d DCA 2009).

    “If the trial judge were to find the affidavit to be defective on its face,
service would be void as to the bona fide purchaser.” Lewis v. Fifth Third
Mortg. Co., 38 So. 3d 157, 160 (Fla. 3d DCA 2010). “If the trial judge finds
the affidavit sufficient on its face, but were to determine that a diligent
search was not performed, the foreclosure would be voidable, not void, as
to the bona fide purchaser.” Id.

   In Martins, the Fifth District considered facts strikingly similar to this
case. There, a homeowner’s association filed a foreclosure complaint
against Martins. Martins, 159 So. 3d at 144. The association addressed
a letter containing a claim of lien to Martins at the subject property;
thereafter, a service processor attempted to serve him at the same address,
but found the house unfurnished and without power. “A neighbor
reported that the owner [was] there now and then.” Id. Subsequently, the

                                      4
association filed an affidavit for service by publication describing several
methods used to attempt to contact Martins. Id. at 144-45. The
association published a notice in a local newspaper, the clerk granted
default, and the trial court entered summary final judgment in favor of the
association. Id. at 145. Consequently, the property was sold at public
auction to a third party.

   Martins then filed a motion to vacate final judgment, void sale of real
property, vacate default, and quash service of process. He insisted that
the association’s search was insufficient because it failed to consult: public
records outside of Osceola County, the voter registration records, the
Osceola County Tax Collector’s records, the Florida Department of Motor
Vehicle records, Martins’ neighbors, or utility companies servicing the
subject property. He claimed that had the association consulted these
resources, it would have discovered that he lived in Cutler Bay, Florida,
not Osceola County. In addition, Martins stressed that the association
had previously mailed correspondence to his Cutler Bay address, but
never attempted service at that location.

    The Fifth District ruled, “[A]lthough the HOA made some effort to obtain
Martins’ address, its search was less than diligent because his address
was easily accessible . . . .” Id. at 147. “[N]ot only was the HOA’s search
insufficient, but the HOA’s affidavit [wa]s patently inaccurate in that it
fail[ed] to disclose that the HOA was aware of Martins’ Cutler Bay address.”
Id. The Fifth District reversed and remanded the trial court’s order
denying Martins’ motion to vacate and quash because the summary final
judgment was void—all while considering the appeal under the heightened
and incorrect standard of review of gross abuse of discretion. 2

2   The court cited to several relevant cases in support of its decision:

         See Godsell, 923 So. 2d at 1215 (finding that final judgment of
         foreclosure was void where the constructive service on defendant
         was ineffective due to the plaintiff’s failure to do a diligent search
         and failure to include, inter alia, any reference to the defendant’s
         possible Canadian address); Miller, 31 So.3d at 228 (finding that
         constructive service by publication was defective based on the fact
         that plaintiffs knew the defendant’s physical address, the defendant
         had previously been served twice at his known address, and the
         plaintiffs’ attorney had mailed correspondence to the defendant’s
         known address; and reversing final default judgment of partition);
         Gans v. Heathgate–Sunflower Homeowners Ass’n, Inc., 593 So. 2d
         549, 551 (Fla. 4th DCA 1992) (finding that two unsuccessful service
         attempts were not sufficient to allow for service by publication
         where the plaintiff failed to ascertain the defendant’s whereabouts

                                           5
    This case is an example whereby a foreclosure is void as a matter of law
for two reasons: (1) the Affidavit for Service by Publication was facially
defective, and (2) the Association did not conduct a diligent search. See
Lewis, 38 So. 3d at 160. First, the Affidavit was “patently inaccurate”
because it failed to note that the Association was aware of the
Homeowners’ Harbor Drive address. See Martins, 159 So. 3d at 147.
Second, while the Association made some effort to search for and serve the
Homeowners, it failed to uncover an easily accessible address. See id. The
Association possessed a certified mail receipt indicating that the
Homeowners received mail at the Harbor Drive address and an email
address to contact the Homeowners and inquire as to their primary
residential address. This information was sufficient to provide a basis for
service at the Harbor Drive address, or at least the reasonable likelihood
of the address’s discovery.

   We reverse and remand because the trial court erred by denying the
Homeowners’ Motion to Vacate and Quash since the affidavit was facially
deficient and a diligent search was not conducted. See id.

   Reversed and remanded.


TAYLOR, LEVINE and KLINGENSMITH, JJ., concur.

                              *         *          *

   Not final until disposition of timely filed motion for rehearing.




      by talking to her neighbors, or trying to contact her by phone or by
      mail); Redfield, 990 So. 2d at 1138–39 (finding that plaintiff’s search
      fell below the statutory and constitutional requirements necessary
      to satisfy Florida’s service of process by publication law where
      plaintiff made some efforts to locate the defendant, but the sworn
      statement did not indicate that the plaintiff contacted the source
      that most likely could have provided information regarding the
      defendant); Floyd, 704 So. 2d at 1112 (finding that the affidavit
      omitted the most meaningful search, namely “getting out of the
      office, finding the property, inquiring of persons in possession of the
      property, or talking with neighbors, relatives or friends”).

Martins, 159 So. 3d at 147.

                                        6
