Bloodman v. Bank of America, N.A.
2016 Ark. App. 67
| Ark. Ct. App. | 2016Background
- Teresa Bloodman acquired title to 5528 Lexington Ave., Benton (Hurricane Lake Estates) in 2009 and executed a deed of trust the same day; the deed of trust and its assignment contained a scrivener’s error spelling “Hurricane” as “Hurrican.”
- Bloodman defaulted in January 2011; Bank of America (assignee) filed a reformation and foreclosure complaint in July 2014 seeking to correct the legal description and foreclose.
- Process server made five attempted personal-service visits to the property; certified-mail attempts to Bloodman’s Maumelle PO box were returned “UNCLAIMED.”
- Bank of America filed an affidavit for a warning order alleging diligent inquiry and unknown present addresses; the court issued a warning order (published and mailed) and entered default judgment on December 29, 2014.
- Bloodman, appearing pro se, moved to set aside the default judgment, arguing defective service (incorrect legal description in the warning order and insufficient affidavit showing whereabouts unknown) and lack of diligent inquiry; the circuit court denied the motion for lack of merit and no meritorious defense.
Issues
| Issue | Bloodman’s Argument | Bank of America’s Argument | Held |
|---|---|---|---|
| Whether the warning order contained an incorrect legal description making service defective | Warning order used "Hurricane" (correct) instead of the misspelled "Hurrican" from the deed of trust, so it was facially defective | Warning order correctly used the true legal description from the Special Warranty Deed and must describe the property accurately | Court held warning order contained the correct legal description; not defective |
| Whether affidavit satisfied Rule 4(f)(1) by showing that the defendant’s whereabouts were unknown after diligent inquiry | Affidavit failed because it did not use the word "whereabouts" and thus did not satisfy Rule 4(f)(1) | Affidavit stated diligent inquiry, listed multiple failed attempts, and expressly said defendants’ present addresses were unknown | Court held affidavit satisfied Rule 4(f)(1); absence of the word "whereabouts" was immaterial |
| Whether Bank of America conducted a sufficiently diligent inquiry into Bloodman’s location | Bank of America should have contacted courts/used case-management systems and other means to locate an attorney-defendant | Bank of America attempted personal service, mailed to PO box used by Bloodman in court filings, and had no evidence of any other address | Court held inquiry was sufficiently diligent; Bank used the PO box that Bloodman herself used in filings |
| Whether alleged misrepresentation/fraud in obtaining service justified setting aside the default under Rule 55(c) | Service was procured by misrepresentation because Bank did not determine Bloodman’s whereabouts before obtaining the warning order | No fraud: affidavit and attempts showed diligent inquiry; no meritorious defense shown by Bloodman | Court denied relief for fraud or other equitable grounds and found no meritorious defense |
Key Cases Cited
- Steward v. Kuettel, 450 S.W.3d 672 (Ark. 2014) (standard of review for motions to set aside default depends on grounds; void-judgment claims reviewed de novo)
- Nucor Corp. v. Kilman, 186 S.W.3d 720 (Ark. 2004) (default judgments are void for defective process regardless of actual notice)
- Gilbreath v. Union Bank, 830 S.W.2d 854 (Ark. 1992) (affidavit inadequate where it did not conclude the defendant’s location was unknown)
- Jackson v. Jackson, 100 S.W.3d 92 (Ark. App. 2003) (reversal where warning order issued without prior unsuccessful personal service or supporting affidavit)