TENANTS OF 1974 LAKELAND ACRES ROAD, DRASCO, ARKANSAS (IF ANY), AND THOMAS KELSO APPELLANTS
U.S. BANK APPELLEE
FROM THE CLEBURNE COUNTY CIRCUIT COURT [NO. 12CV-12-223]
HONORABLE TIM WEAVER, JUDGE REVERSED AND REMANDED
Cruz Law Firm, PLC, by: Kathy A. Cruz, for appellants.
Donelson, Bearman, Caldwell & Berkowitz, PC, by: Bradley
E. Trammell; and Wilson & Associates, PLLC, by: H. Keith
Morrison, for appellee.
Gruber, C.J., and Klappenbach, J., agree.
KENNETH S. HIXSON, Judge
appeal arises from a default judgment entered against Thomas
Kelso in a foreclosure case. Kelso appeals from the trial
court's denial of his amended motion to set aside the
default judgment. Kelso argues that service of process, which
was by warning order, was defective because the affidavit in
support of the warning order was insufficient. After
conducting a de novo review, we agree with Kelso's
argument that there was a failure of strict compliance with
our service requirements and that the trial court erred in
denying his motion to set aside the judgment. Therefore, we
reverse and remand.
2006, Kelso executed a note and mortgage for $284, 800, which
was secured by residential property at 1974 Lakeland Acres
Road in Drasco, Arkansas. The mortgage was later assigned to
the appellee herein, U.S. Bank. On October 30, 2012, U.S.
Bank filed a foreclosure complaint alleging that Kelso was in
default because he had failed to make any payments on the
mortgage and note since October 2008.
Bank attempted to serve Kelso on November 3, 2012, by mailing
the complaint and summons to a P.O. Box address in Searcy,
Arkansas, which it had discovered from an internet search.
U.S. Bank also attempted to effect service on November 5,
2012, by mailing the summons and complaint to the address of
the mortgage property. These efforts by the Bank to locate
Kelso proved unsuccessful, and the Bank then sought a warning
December 6, 2012, U.S. Bank filed an affidavit for warning
order. In the affidavit, the attorney for U.S. Bank stated:
1. U.S. Bank's records do not contain a current address
for Thomas Kelso.
2. Diligent effort has been made, but U.S. Bank has been
unable to contact or otherwise serve the defendant as
evidenced by receipts which are collectively attached hereto
as Exhibit "A."
3. A search performed on the internet did not produce an
additional address or telephone number for the defendant.
4. U.S. Bank and this office have made diligent inquiry, but
have been unable to achieve service upon or determine the
whereabouts of said defendant.
Exhibit "A" attached to the affidavit contained a
U.S. Postal Service receipt showing payment for return
receipt, restricted delivery to Thomas Kelso at P.O. Box 882,
Searcy, Arkansas 72145, with tracking number 6084. A USPS
"Track and Confirm" document indicated that
delivery of the package with tracking number 6084 was
attempted on November 3, 2012. Also attached to the affidavit
was a certified-mail "green card" documenting an
article addressed to "Tenants" at 1974 Lakeland
Acres Road, Drasco, Arkansas 72530, with tracking number
6091. An envelope with that address and tracking number