This is an appeal from the district court’s denial of appellant’s motion to set aside a default judgment entered against appellant Vento Development Corp. ("Vento”), of Puerto Rico. We affirm.
The litigation between the parties commenced in 1973 when Continental Mortgage Investors (“CMI”), a business trust from Massachusetts, petitioned with other creditors of Vento in the United States District Court for the District of Puerto Rico for Vento’s reorganization under Chapter X of the Bankruptcy Act. The district court approved this petition, and we affirmed in
In re Vento Development Corp.,
On August 25,1980, the trustees of CMI, which at this time was also undergoing reorganization under the Bankruptcy Act, sued in the district court to collect their debt from Vento or foreclose their mortgage on Vento’s property. CMI attempted to serve its complaint on Vento in Puerto Rico but was unsuccessful on account of Rosabal’s absence from the island. CMI then filed a verified motion requesting authorization for the service of summons by publication under Fed.R.Civ.P. 4(e) 3 and *22 Rule 4.5 of the Puerto Rico Rules of Civil Procedure, P.R. Laws Ann. tit. 32, App. III, R. 4.5. 4 Since Vento challenges the sufficiency of this document, we describe it in detail.
The caption of CMI’s motion contained the name of the parties and a description of the action as a “collection of monies and mortgage foreclosure.” The text averred, inter alia, that plaintiff had tried to serve the summons and complaint on Vento through Mr. Sergio Torres, CMI’s private process server, and that Mr. Torres had been unable, despite all his efforts, to find the actual address of Vento, its resident agent or any of its officials. It was also stated that the matter of Vento’s corporate address had been adjudicated by the bankruptcy court which had found the correct address to be the one listed in the Department of State’s files. The next paragraph read: “As it fully appears from the complaint in the above captioned case, plaintiff has a valid claim against defendant.” The motion concluded with a request that service of process by publication be allowed. It was signed (but not sworn to) by one of plaintiff’s attorneys.
At the end of the same page was a sworn statement by Mr. Bruce Anglin, senior asset manager of CMI, attesting to his personal circumstances and affirming that “he has read the foregoing motion and that the facts stated in the same are correct and true” and that “he is familiarized with the claim in the above captioned action and that he believes that CMI has a meritorious and valid claim.”
The motion was accompanied by three exhibits which were alluded to in its text: (1) an affidavit by Mr. Torres testifying that his attempts to find and serve process on Vento’s resident agent in Puerto Rico had been unsuccessful and explaining the steps he had taken trying to do this; (2) a copy of a verified motion to set evidentiary hearing that had been filed by Mr. Rosabal in the bankruptcy court whereby he sought to reopen the bankruptcy proceedings on the grounds that he had not been notified, his current address being in Florida, not Puerto Rico; and (8) a copy of an opinion by the bankruptcy court denying Rosabal’s and other motions by Vento in which it was mentioned by the court that CMI was a “secured creditor” of Vento, and in which it was held that Vento was estopped from alleging lack of notification because Vento had itself failed to inform the court of the change of address of its resident agent.
Plaintiff’s motion to serve by publication was allowed by the district court. Notice was accordingly published in a newspaper in. Puerto Rico. A copy of the summons was also sent by mail to the Hato Rey address that Vento had listed with the Department of State. Vento did not answer. In the meantime, CMI transferred its credit against Vento to appellee Senior Loiza Corp. (“Senior”) of Puerto Rico. Senior was substituted as plaintiff in the action. A default judgment was entered against Ven-to on December 3, 1981, and executed shortly after. The mortgaged property was sold to a third party.
On May 3, 1984, Vento moved under Fed.R.Civ.P. 60(b) to set aside the judgment *23 and declare the sale null on the ground that process had not been correctly served under Puerto Rico Rule 4.5. Vento complained (1) that notice had not been sent to its last known address in Florida, and (2) that the affidavit accompanying the motion was deficient under the rule in that it did not set forth sufficient facts justifying the granting of relief against the person to be served, i.e., Vento.
The district court denied Vento’s motion. It held that under
Hospital Mortgage Group, Inc. v. Parque Industrial Rio Canas,
We agree with the district court that the first of Vento’s contentions is foreclosed by Hospital Mortgage. There we considered an argument by a corporate defendant that service could and should have been made on its president, whose address was personally known to plaintiff, instead of resorting to service by publication under Rule 4.5. Noting that under the laws of the Commonwealth of Puerto Rico, a corporation has a duty to make its address known by maintaining an accurate record with the Department of State, we said,
[hjaving failed to keep its public records up to date, [defendant] is in no position to complain that [plaintiff] relied on the Commonwealth’s outdated records rather than conducting and relating an extensive investigation or drawing on personal knowledge of its officers regarding the residence of [defendant’s] president.
Hospital Mortgage,
Vento claims that its situation is distinguishable because at the time the action was filed Vento had ceased doing active business and was undergoing bankruptcy proceedings. This is no reason, however, for exemption from its obligations to give notice of any change of address and keep a resident agent in Puerto Rico. If anything, the obligation to do so was greater. Nor does it avail Vento that the Rosabais were the sole stockholders or that Mr. Rosabal was both Vento’s president and resident agent. As the district court correctly observed,
the ... complaint was filed against Ven-to not against its president. Irrespective of the residence of its president, Vento is required by Section 102 of the General Corporations Law, 14 L.P.R.A. § 1102 to keep its address on file in the Department of State, and it is at that address that service of process must be effected.
Vento’s second contention is that CMI’s affidavit accompanying its motion to serve by publication was inadequate. Rule 4.5 requires that plaintiff’s “affidavit ... or the verified complaint filed states a claim justifying the granting of some relief against the person to be served or that the person to be served is a proper party to the action.”
5
This requirement, derived from a similar provision in a California statute,
6
is
*24
interpreted in a strict and technical manner.
See Garcia & Gonzalez v. Registrar,
In keeping with the above-cited authorities, we held in
Hospital Mortgage,
The affidavit ... is fatally defective in not setting forth the facts from which the court could ipfer that complainants had a good cause of action. It has also been decided that the opinion of neither counsel nor the party could avail a complainant on whether a good cause of action existed.
This is not a case where the discretion of the court is involved and greater liberty may be allowed in the construction of affidavits ..., but the affidavit is one that is a condition precedent to giving the court jurisdiction.
Id.
at 234 (citations omitted).
See also Goldsmith v. Villari,
The strictness of the requirement is based on the fact that service by publication permits a plaintiff to proceed to judgment with nothing more than a form of notice to defendant — publication—that is quite likely to go unobserved. It is thus important for the court to ascertain reliably that plaintiff has a good cause of action. As the Supreme Court of California has said,
[O]n the determination of this jurisdictional fact, the ultimate adjudication of the rights of the defendant is made to turn. The application for the order is made ex parte. The defendant is not heard and has no opportunity to object to the kind of proof offered. He therefore waives nothing by failure to object, and it behooves those who are seeking to acquire jurisdiction over him to see that they present legal testimony which tends, in some degree, to establish the essential jurisdictional facts.
Forbes v. Hyde,
Here, the affidavit appearing at the end of the verified motion did not aver facts that would justify relief against Ven-to. Mr. Anglin’s general statement that “he is familiarized with the claim in the above captioned action and that he believes that CMI has a meritorious and valid claim” is insufficient in light of
O'Sheaf
and
Hospital Mortgage. See also Forbes v. Hyde,
The district court, to be sure, ruled that plaintiffs counsel had made a reference to the complaint in the text of the motion, reasoning that this had been incorporated into the affidavit by the affiant’s assertion that “he has read the foregoing motion and that the facts stated in the same are correct and true.” The court believed this had the effect of incorporating the complaint into the affidavit, transforming it into a verified complaint. But the affidavit only purports to verify the facts stated in the motion ; it does not refer to the complaint. The net result was, at best, verification of the language in the motion stating, “As it fully appears in the complaint in the above captioned case, plaintiff has a valid claim against defendant.” While this goes part of the way, it falls short of amounting to an assertion that the person signing the affidavit swears to the truth of the facts in the complaint. 7
Verification of a complaint may indeed be accomplished by reference in the affidavit, but an intent to incorporate must be more clearly stated than here.
See Lima v. Lima,
We find, however, that the district court’s decision should be affirmed for a different reason. Buttressing the sworn motion’s conclusory assertion that “plaintiff has a valid claim against defendant” is the significant fact, appearing in an opinion and order of the bankruptcy court that is attached as an exhibit to the verified motion, that CMI is a “secured creditor” with respect to the bankrupt defendant. Consistent with this description, the verified motion recites that the plaintiff’s action is one for “collection of monies and mortgage foreclosure.” And CMI’s status as a petitioning creditor of Vento’s was confirmed, and the amount of its secured claim stated, in this court’s published opinion in
In re Vento Development Corp.,
We are satisfied that the foregoing provided sufficient substantiation of the affidavit’s otherwise conclusory assertion that plaintiff had a valid claim against defendant. The district court could, in these circumstances, ascertain reliably that plaintiff’s claim “justifped] the granting - of some relief.” See note 4, supra. We hold, therefore, that the provisions of Rule 4.5 were met and that the district court obtained jurisdiction over appellant.
Affirmed.
Notes
. Under the General Corporation Law of Puerto Rico, P.R. Laws Ann. tit. 14, § 1102 (1978), all corporations organized under the laws of Puerto Rico are required to furnish to the Department of State of Puerto Rico the address of its principal office or place of business and the name of its resident agent.
. P.R.Laws Ann. tit. 14, § 1302 (1978), provides:
The board of directors of any corporation' organized under the laws of this Commonwealth may change the location of the principal office or place of business of the corporation within this Commonwealth to any other place within this Commonwealth by resolution adopted at a regular or special meeting of the board. By like resolution, the resident agent of a corporation may be changed to any other natural or juridical person. In either such case, the resolution shall be as detailed in its statement as is provided in subsection (a)(2) of section 1102 of this title. Upon the adoption of a resolution as aforesaid, a copy thereof shall be filed in the office of the Department of State signed by the president or a vice-president and the secretary or an assistant secretary of the corporation, and sealed with its corporate seal; and a certified copy shall be recorded in the office of said Department where it shall be subject to inspection by the public. For filing the certificate, the Department of State shall charge the fee prescribed in section 2501(a)(10) and (c)(8) of this title.
. It provides in pertinent part:
Whenever a statute or rule of court of the state in which the district court is held provides (1) for service of a summons, or of a notice, or of an order in lieu of summons *22 upon a party not an inhabitant of or found within the state, or (2) for service upon or notice to him to appear and respond or defend in an action by reason of the attachment or garnishment or similar seizure of his property located within the state, service may in either case be made under the circumstances and in the manner prescribed in the statute or rule.
. This rule provides in pertinent part:
The court shall issue an order providing for service by publication when process is to be served on a person outside Puerto Rico or on a person who may be in Puerto Rico but who cannot be located although attempts have been made to locate him, when the person goes into hiding to avoid being served with process, or when process is to be served on a foreign corporation with no resident agent, provided one of the above is proved to the satisfaction of the court in an affidavit stating the steps taken, and provided that said statement or the verified complaint filed states a claim justifying the granting of some relief against the person to be served or that the person to be served is a proper party to the action.
. The text of the present rule differs slightly from the version we considered in Hospital Mortgage which required that it appear from the affidavit or from the verified complaint filed that "a cause of action exists which warrants the granting of relief against the person upon whom service is to be made or that such person is a necessary or legitimate party to the action.” This difference seems inconsequential. See generally the comment to the Spanish version of the rule in 32 Leyes de Puerto Rico Anotadas, App. III, R. 4.5 (1983).
.
Former Cal. Civil Procedure Code §
412.
This section has been amended and replaced by Cal. Civil Procedure Code § 415.50 (West Supp. 1985). The Supreme Court of Puerto Rico has often followed California precedents in this area.
See O’Sheaf v. District Court,
38 P.R.R.
*24
231 (1928);
Goldsmith v. Villari,
. The Supreme Court of Puerto Rico has made clear that a court may not rely on an unverified complaint to supply the required facts.
See O’Sheaf,
. The district court could also take judicial notice that CMI had obtained an order lifting the bankruptcy stay. This implied that CMI, initially at least, had satisfied the bankruptcy court that Vento did not have any equity in the contested property. See 11 U.S.C. § 362(d) and (g).