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Tenants of 1974 Lakeland Acres Road v. U.S. Bank

Court of Appeals of Arkansas, Division IV

May 31, 2017

TENANTS OF 1974 LAKELAND ACRES ROAD, DRASCO, ARKANSAS (IF ANY), AND THOMAS KELSO APPELLANTS
v.
U.S. BANK APPELLEE

         APPEAL FROM THE CLEBURNE COUNTY CIRCUIT COURT [NO. 12CV-12-223] HONORABLE TIM WEAVER, JUDGE REVERSED AND REMANDED

          The Cruz Law Firm, PLC, by: Kathy A. Cruz, for appellants.

          Baker, 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

         This 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.

         In 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.

         U.S. 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 order.

         On 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.

         The 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 ...


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