Judgments Which Are Void at the Outset
2
Judgments which are void at the outset, may on motion at any time be vacated. See Fla.R.Civ.P. 1.540 (b). Diligence to serve by publication: Wiggam v. Bamford, 562 So. 2d 389 (4 DCA 1990), Gans v. Heathgate-Sunflower Homeowners, 593 So. 2d 549 (4 DCA 1992), Hobe Sound Ind. Park v. 1st Union Nat. Bank, 594 So. 2d 334 (4 DCA 1992); Batchin v. Barnett Bank, 647 So. 2d 211 (2 DCA 1994). Forecl judgment entered where sworn statement defective on its face voids sale, even as to non-party bidder. Gans; HOWEVER, see later 4th DCA case Demars, which says it is only voidable. See also Fund Concept, Forecls V. Absentee Owners, Jan 93; and III Fla. Real Property Practice (CLE 1976), s. 5.26. Sworn statement need not set out search facts, but judgmen t voidable if insuffic d iligence , so better pra ctice to set out. Demars v. Vil lage of Sandalwood LAkes, 625 So. 2d 1219 (4 DCA 1993). 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. 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. See generally 33 Fla. Jur. 2d Judicial Sales § 13 (2009). On the face of the affidavit of diligent search before us, we find that the affidavit is sufficient for purposes of service by publication and that the trial court did not grossly abuse its discretion in so holding. In light of the necessary reliance on the public record by a bona fide purchaser, the affidavit of diligent search was sufficient on its face to establish that an adequate search had been made to locate an address for service upon Lewis prior to effecting constructive service. The resultant foreclosure sale to the bona fide purchaser cannot be set aside. First Home View Corp. v. Guggino, 10 So. 3d 164 (Fla. 3d DCA 2009) (holding that trial court errs in vacating final judgmen t of forec losure in sale of property to bona fid e purchas er where homeowner is constructively served by publication and affidavit of diligent search is legally sufficient to establish that an adequate search has been made prior to constructive service); Southeast & Assoc. v. Fox Run Homeowners Ass’n, 704 So. 2d 694 (Fla. 4th D CA 1997) (holding that notice by publication is adequate where affidavit of diligent search is facially sufficient and foreclosure sale to bona fide purchaser is merely voidable, and not void, and cannot be set aside) 847 So.2d 555 RINAS v.RINAS; 1D09-2170 SOUTHEAST LAND DEVELOPERS v. ALL FLORIDA SITE AND UTILITIES, INC.,; 625 So.2d 1219 18 Fla. L. Weekly D911, DEMARS v. SANDALWOOD L AKES; 168 So.2d 183 EVANS v. HYDEMAN
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8/3/2019 Judgments Which Are Void at the Outset
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Judgments which are void at the outset, may on motion at any time be vacated. See Fla.R.Civ.P.
1.540 (b).
Diligence to serve by publication: Wiggam v. Bamford, 562 So. 2d 389 (4 DCA 1990), Gans v.
Heathgate-Sunflower Homeowners, 593 So. 2d 549 (4 DCA 1992), Hobe Sound Ind. Park v. 1st
Union Nat. Bank, 594 So. 2d 334 (4 DCA 1992); Batchin v. Barnett Bank, 647 So. 2d 211 (2DCA 1994). Forecl judgment entered where sworn statement defective on its face voids sale,
even as to non-party bidder. Gans; HOWEVER, see later 4th DCA case Demars, which says it isonly voidable. See also Fund Concept, Forecls V. Absentee Owners, Jan 93; and III Fla. Real
Property Practice (CLE 1976), s. 5.26. Sworn statement need not set out search facts, but
judgment voidable if insuffic diligence, so better practice to set out. Demars v. Village of Sandalwood LAkes, 625 So. 2d 1219 (4 DCA 1993).
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. If the trial judge finds the affidavit sufficient on its face, but were todetermine that a diligent search was not performed, the foreclosure would be voidable, not void,
as to the bona fide purchaser. See generally 33 Fla. Jur. 2d Judicial Sales § 13 (2009). On theface of the affidavit of diligent search before us, we find that the affidavit is sufficient forpurposes of service by publication and that the trial court did not grossly abuse its discretion in
so holding. In light of the necessary reliance on the public record by a bona fide purchaser, the
affidavit of diligent search was sufficient on its face to establish that an adequate search had beenmade to locate an address for service upon Lewis prior to effecting constructive service. The
resultant foreclosure sale to the bona fide purchaser cannot be set aside. First Home View Corp.
v. Guggino, 10 So. 3d 164 (Fla. 3d DCA 2009) (holding that trial court errs in vacating final
judgment of foreclosure in sale of property to bona fide purchaser where homeowner isconstructively served by publication and affidavit of diligent search is legally sufficient to
establish that an adequate search has been made prior to constructive service); Southeast &
Assoc. v. Fox Run Homeowners Ass’n, 704 So. 2d 694 (Fla. 4th DCA 1997) (holding that noticeby publication is adequate where affidavit of diligent search is facially sufficient and foreclosure
sale to bona fide purchaser is merely voidable, and not void, and cannot be set aside)
847 So.2d 555 RINAS v.RINAS; 1D09-2170 SOUTHEAST LAND DEVELOPERS v. ALL
FLORIDA SITE AND UTILITIES, INC.,; 625 So.2d 1219 18 Fla. L. Weekly D911, DEMARS
v. SANDALWOOD LAKES; 168 So.2d 183 EVANS v. HYDEMAN
