Turner v. Deutsche Bank National Trust Co.
65 So. 3d 336
Miss. Ct. App.2011Background
- Deutsche Bank filed a foreclosure in Warren County Chancery Court seeking to confirm title and foreclose; service by publication attempted after an unexecuted summons, without nonresident/diligent inquiry certification.
- Summons were not successfully served by the sheriff; a deputy sheriff returned it as unable to serve, leading to publication in the Vicksburg Post for three weeks.
- Deutsche Bank did not file a sworn statement certifying Turner as a nonresident or that she could not be found after diligent inquiry, as required by Rule 4(c)(4).
- Turner did not respond; a default judgment was entered reconfiguring the property description to include a mobile home and authorizing foreclosure.
- Turner moved to set aside the default judgment, arguing improper service; the chancery court denied relief, and Turner appealed.
- This Court held service by publication deficient under Rule 4(c)(4); the default judgment is void, and the case must be remanded for proper service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by publication complied with Rule 4(c)(4) | Turner | Deutsche Bank | Service deficient; judgment void; remand for proper service |
| Whether failure to file a sworn affidavit/reasonable diligent inquiry invalidates service | Turner | Deutsche Bank | Affidavit/diligent inquiry required; missing here invalidates service |
| Whether lack of proper service deprives court of jurisdiction to enter default judgment | Turner | Deutsche Bank | Jurisdiction lacking; default judgment void |
| Whether Rule 60(b) relief was appropriate to set aside the void judgment | Turner | Deutsche Bank | Rule 60(b) relief appropriate; judgment reversed and remanded |
Key Cases Cited
- Caldwell v. Caldwell, 533 So.2d 413 (Miss.1988) (strict compliance required for publication notice; affidavit must affirm diligent inquiry)
- Kolikas v. Kolikas, 821 So.2d 874 (Miss.Ct.App.2002) (defective service by publication requires setting aside; mailing to last known address emphasized)
- McCain v. Dauzat, 791 So.2d 839 (Miss.2001) (default judgment void without proper service)
- Soriano v. Gillespie, 857 So.2d 64 (Miss.Ct.App.2003) (60(b) relief when judgment void; discretionary but not if void)
- Sanghi v. Sanghi, 759 So.2d 1250 (Miss.Ct.App.2000) (jurisdictional questions reviewed de novo; notice requirements strict)
- Clark v. Clark, 43 So.3d 496 (Miss.Ct.App.2010) (jurisdictional questions reviewed de novo; sufficiency of process)
- Morrison v. Miss. Dep’t of Human Servs., 863 So.2d 948 (Miss.2004) (proper process required for notice; cited in context of publication)
- Bougard v. Bougard, 991 So.2d 646 (Miss.Ct.App.2008) (standard for reviewing chancellor’s findings; jurisdictional considerations)