Alabama Appeals Court: Process Server Screw-Up Leaves Trial Judge w/out Jurisdiction In F'closure Action; Default Judgment Against Pair To Be Vacated

The Alabama Civil Court of Appeals recently reversed a ruling of a lower court that refused to vacate a foreclosure judgment in favor of the Bank of New York ("BNY") on the grounds that the trial court lacked personal jurisdiction over the homeowner-couple, Linda and James Bogus. The issue - a process server screw-up in serving the court papers on the couple facing foreclosure.

• Although BNY's complaint alleged that the Boguses were residents of Shelby County, the record indicates that BNY made no attempt to personally serve the Boguses with process. Rather, the record indicates that, on July 28, 2008, four days after it filed its complaint, BNY attempted to effect service of process on the Boguses by posting the process on the property.

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• On February 24, 2009, the trial court entered a default judgment against the Boguses. The default judgment awarded possession of the property to BNY and determined that the Boguses had forfeited their right to redeem the property; it did not award any damages.

• On April 10, 2009, the Boguses moved the trial court for relief from the default judgment [...]. As one of their grounds, the Boguses asserted that the default judgment was void because, they said, they had not been personally served with process and, therefore, they said, the trial court lacked jurisdiction to enter the default judgment. Following a hearing, the trial court denied the Boguses' motion for relief from the default judgment. The Boguses timely appealed to the supreme court, which transferred the appeal to this court [...].

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• Th[e] statute requires that a defendant who is a resident of the State of Alabama be served personally unless he or she cannot be found. In the case now before us, the record indicates that BNY did not make any attempt to serve the Boguses personally. Consequently, BNY's attempt to serve the Boguses by posting the process on the property did not comply with the service-of-process provisions [...]. Therefore, BNY did not validly serve the Boguses [...].

• Accordingly, we reverse the trial court's denial of the Boguses' [] motion [to vacate a default judgment] and remand the action to the trial court for further proceedings consistent with this opinion.

For the ruling, see Bogus v. Bank of New York, No. 2081195 (Ala. Civ. App. April 16, 2010).