Federal National Mortgage Ass'n v. Beard

659 P.2d 232, 8 Kan. App. 2d 371, 1983 Kan. App. LEXIS 125
CourtCourt of Appeals of Kansas
DecidedFebruary 17, 1983
DocketNo. 54,091
StatusPublished
Cited by5 cases

This text of 659 P.2d 232 (Federal National Mortgage Ass'n v. Beard) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federal National Mortgage Ass'n v. Beard, 659 P.2d 232, 8 Kan. App. 2d 371, 1983 Kan. App. LEXIS 125 (kanctapp 1983).

Opinion

Meyer, J.:

Defendant Beard appeals denial of her motion to set aside a default judgment foreclosing a mortgage and ordering the sale of the subject real property.

Elizabeth Beard executed a mortgage on May 10, 1974, to National Homes Acceptance Corporation, covering real property commonly known as 116 Minnesota, Lawrence, Kansas. The mortgage was assigned to plaintiff, Federal National Mortgage Association (FNMA) on May 22, 1974. On May 5, 1981, FNMA filed a petition of foreclosure alleging Beard had been in default since October 1, 1980.

A summons was issued for personal service on Beard May 5, 1981. Floyd Baker, deputy sheriff, attempted service at the address listed in the petition as Beard’s residence, Route 1, Box 249, Lawrence, Kansas, and at two other places, without success. The summons was returned indicating service was not made [372]*372after diligent search and inquiry. Baker testified that over the last couple of years he and other officers had made numerous attempts to serve Beard, but had never found evidence of anyone living at the aforementioned residence on Route 1.

On June 11, 1981, FNMA filed an affidavit for service by publication, listing Beard as a defendant whose residence was unknown. A notice of suit was published June 15, 22, and 29, 1981. FNMA did not mail a copy of the publication notice to Beard. A default judgment was entered August 28, 1981, and an order of sale was filed September 15, 1981.

On October 9, 1981, Beard filed a motion to set aside the default judgment and to enjoin the sheriff s sale, arguing that invalid service of process had deprived her of due process of law. Beard alleged she was unaware, until October 3, 1981, that a judgment had been entered or that the property was to be sold. She stated that a letter from FNMA, returning uncashed her tendered mortgage payment check and providing information relating to the foreclosure action, had been mailed to her and received by her at the Route 1 address. This letter demonstrated that her whereabouts were known to FNMA; therefore, her reasoning continued, she should have been personally served, or at least should have received a mailed copy of the publication notice.

In an affidavit filed in opposition to the motion, FNMA’s attorney stated that checks were returned to Beard by letters dated May 20, June 25, July 27 and September 28,1981; all these letters were addressed to Route 1, Box 249, Lawrence, Kansas. The May and June letters were sent by certified mail and the return receipts were signed by Beard. The attorney asserted he enclosed a copy of the petition in the May letter, although the body of the letter did not refer to such an enclosure. The letters stated that only a payment in full of the mortgage would be accepted, because the foreclosure petition had already been filed.

Following a hearing on the motion, at which both Beard and Deputy Sheriff Baker testified, the district court ruled FNMA had made a reasonable effort to ascertain defendant’s residence. The court further ruled FNMA had no other alternative but to obtain service by publication, which it did pursuant to statute.

The first issue is whether the service by publication complied with K.S.A. 60-307 and due process standards.

[373]*373The distinction between knowledge of a defendant’s residence and knowledge of a defendant’s mailing address is the critical consideration in this case. Beard’s residence remains unknown, but at all times during this action, FNMA was aware of Beard’s mailing address.

Since personal service was unsuccessful after diligent search by the deputy, service by mail or publication was appropriate under K.S.A. 60-307(a)(3) which states in part:

“Service may be made either by mail where the address is known, or by publication in any of the following cases:
“(3) In actions which relate to or the subject of which is real . . . property in this state, where any defendant has or claims a[n] . . . interest, vested or contingent, therein, or the relief demanded consists . . . [of] foreclosure of a lien, and . . . where plaintiff with due diligence is unable to make service of summons upon the defendant within the state.”

K.S.A. 60-307(b) states the process provisions shall be construed as separate and permissive methods of obtaining service. Therefore, FNMA could choose service by publication rather than by mail.

K.S.A. 60-307(d)(l) states:

“Before service by publication as provided in this section can be made, one of the parties or his or her attorney shall file an affidavit stating such of the following facts as are applicable:
“(1) The residences of all named defendants sought to be served, if known, and the names of all such defendants whose residences are unknown after reasonable effort to ascertain the same.” (Emphasis added.)

However, the example of the affidavit given at K.S.A. 60-307(á)(5) states:

“Such affidavit shall be in substantially the following form:
(Name of Court)
__, Plaintiff,
vs.
(Name of first defendant), et al., Defendants.
(AFFIDAVIT)
"STATE OF KANSAS,_COUNT.Y, ss:_of lawful age, being first duly sworn, states
“1. That he or she is (plaintiff or defendant, or an attorney for such) in the above action and makes this affidavit for the purpose of obtaining service by publication upon the parties named herein.
“2. That the defendants on whom service by publication is sought and whose names and addresses are known are as follows: (Names and addresses).
[374]*374“3. That the defendants on whom service by publication is sought whose names are known but whose residences are unknown notwithstanding reasonable effort of the affiant to ascertain the same are as follows: (Names).
“4. That affiant does not know and with reasonable diligence is unable to ascertain the names or residences of any of those classes of unknown persons who are or may be concerned in the subject of this litigation, as mentioned in K.S.A. 60-307, subsection (a)(5), and amendments thereto, but that he or she desires to include all such in his or her constructive service.
“5. That the said (plaintiff or defendant) is unable to procure personal service of summons on any of the said defendants within this state.
“6. That this action is one of those mentioned in K.S.A.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Judkins v. Davenport
59 S.W.3d 689 (Court of Appeals of Texas, 2000)
Siefkes v. Nichols
788 F. Supp. 477 (D. Kansas, 1992)
In the Interest of L.S.
788 P.2d 875 (Court of Appeals of Kansas, 1990)
In Re LS
788 P.2d 875 (Court of Appeals of Kansas, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
659 P.2d 232, 8 Kan. App. 2d 371, 1983 Kan. App. LEXIS 125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-national-mortgage-assn-v-beard-kanctapp-1983.