Appellate Court Foreclosure Reversals Continue As Rubber-Stamping Mississippi Trial Judge Fumbles Ball On Basic Rules Governing Service Of Process

From a recent ruling from the Mississippi Court of Appeals:

• Deutsche Bank National Trust Company initiated a foreclosure action in the Warren County Chancery Court and attempted to serve Angela Turner by publication.
• But before doing so, it neither certified Turner was a non-resident of Mississippi nor alleged she could not be located in the state after a diligent inquiry.
• Because we find service of process did not strictly comply with the governing rules, we reverse the chancellor's refusal to set aside the default judgment she entered on behalf of Deutsche Bank when Turner did not respond. We remand the case for further proceedings.

For the facts of the case, and the court's analysis of the applicable state law on service of process, see Turner v. Deutsche Bank National Trust Company, No. 2009-CA-01601-COA (Miss. Ct. App. June 14, 2011).

(1) From the opinion, reversing the earlier ruling of Warren County Chancery Court Judge Jane R. Weathersby: (bold text is my emphasis):

• ¶ 8. The issue before us is whether Deutsche Bank's attempted service by publication was sufficient where it failed to certify that Turner was a nonresident or, after a diligent inquiry, could not be located in Mississippi. If service of process was deficient, the default judgment entered against Turner is void and must be set aside. See Caldwell v. Caldwell, 533 So.2d 413, 417-18 (Miss. 1988); Clark, 43 So. 3d at 501 (¶21) (citing Morrison v. Miss. Dep't of Human Servs., 863 So.2d 948, 952 (¶13) (Miss. 2004); Soriano v. Gillespie, 857 So.2d 64, 69-70 (¶22) (Miss. Ct. App. 2003)).

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• ¶ 11. Although Deutsche Bank published a summons in the newspaper for three consecutive weeks and filed proof of the publication, Deutsche Bank did not comply with Rule 4(c)(4)(A). It is undisputed that Deutsche Bank never filed a sworn petition or affidavit attesting that Turner was a nonresident or could not be found in Mississippi after a diligent inquiry. Therefore, it follows that Deutsche Bank did not comply with any of the remaining requirements for information that must be included in the petition or affidavit.
  
  ¶ 12. "The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition." Kolikas v. Kolikas, 821 So.2d 874, 878 (¶16) (Miss. Ct. App. 2002) (internal citation omitted). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So.2d 1024, 1027 (Miss. 1979). "Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him." Sanghi, 759 So. 2d at 1257 (¶33).

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• ¶ 15. We need not reach the rule violated in Kolikas because Deutsche Bank violated the more preliminary requirement that it file a sworn petition or affidavit. In the petition or affidavit, the plaintiff must certify to the court, among other things, that the defendant is a nonresident or cannot be found in Mississippi. From a straightforward application of Rule 4(c)(4), we find Deutsche Bank's attempt to serve Turner fell far short of the required notice. And since Turner did not voluntarily appear to defend against the foreclosure suit, the chancery court did not acquire jurisdiction to enter a judgment against her. sewer service