The Statewide Title Newsletter and Legal Memorandum

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Issue  55  Article  117
Published:  2/1/2000

Service by Publication on the Internet?
Chris Burti, Vice President and Legal Counsel

There is a new decision by the New Jersey appellate court that may be the precursor of a trend to incorporate technology into the legal process by judicial decree. While the ruling involves a domestic case, the implications for foreclosures and other real estate related litigation is obvious. It is interesting to note that the Court cited a North Carolina case to support its ruling. The Court held that where a party cannot physically locate an adverse party for service, the known existence of an e-mail address is a relevant fact to be disclosed to a trial court in support of an application for service by publication. That in conjunction with service by publication the court may require an attempt be made for "actual service" by e-mail. Modan v. Modan, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, A-6286-97T5, decided January 12, 2000, was an appeal by defendant from an order denying a motion to vacate a default judgment of divorce obtained by plaintiff.

The parties were married in 1995, and separated in 1997, subsequently plaintiff brought defendant to her mother's home in New York. Plaintiff employed an attorney to work out the terms of a property settlement but defendant, nevertheless, departed for Pakistan. When negotiations failed, plaintiff filed a complaint for divorce alleging that defendant resided in New York. According to a verification filed in the matter, a copy of the complaint was sent to the mother's address by both regular and certified mail which was returned undelivered. The facts of the case made it clear that plaintiff knew of defendant's move to Pakistan though he may have been unaware of defendant's exact address there. However, copies of e-mail messages sent to him were in the record, and he was aware of an e mail address in Pakistan where defendant could be reached. The Court found that the plaintiff knew that defendant did not reside in New York and that she had not gone back to Pakistan merely for a visit. Rather, defendant went home and was waiting, according to her e-mails, for plaintiff to accept her back as his wife.

Plaintiff submitted an affidavit of diligent inquiry, pursuant to the New Jersey procedural rules, in support of a motion for an order for publication. Plaintiff stated, in the affidavit, that when defendant left their marital abode she went to live in New York. He admitted that she had called him several times from Pakistan but he did not "know whether she is still in Pakistan visiting or what . . .". An affidavit of diligent inquiry is required in New Jersey to disclose the efforts made to ascertain the defendant's whereabouts before seeking an order for publication. The Court pointed out that the plaintiff did not mention in his affidavit that he had received e-mails from defendant and that he knew of an e-mail address where defendant might be reached in Pakistan. Service by publication in New Jersey requires that, in addition to publication, a notice in the form of a summons must also be sent by mail to the defendant's residence or the place where the defendant usually receives mail if known. By reason of this requirement, the Court determined that plaintiff's affidavit of diligent inquiry and his failure to notify plaintiff by e-mail did not comply with the Rule.

The Court noted that virtually every jurisdiction requires a diligent inquiry be made as to the whereabouts of the defendant before permitting service of process by publication. The Court cited the decisions of several States for the proposition that there is no laundry list for due diligence, including North Carolina's Court of Appeals holding that determination [of due diligence] in each case is based upon the facts and circumstances thereof." Barclay's American/Mortgage Corp. v. BGCA Enterprises, 446 S.E.2d 883, 886 (N.C.App. 1994). The opinion pointed out that a plaintiff need not exhaust all conceivable means of personal service before service by publication is authorized, but need only follow up on the information that might reasonably assist in determining defendant's whereabouts. They noted that North Carolina's Court of Appeals has stated that due diligence "requires a party to use all reasonably available resources to accomplish service." Barclay’s, supra, 446 S.E.2d at 886.

In this case, since plaintiff knew of an e-mail address where defendant could be reached, a reasonable method was available for effecting actual notice to defendant in addition to the requirement of service by publication. The Court held that the trial court should have been made aware that an e-mail address was available to plaintiff in order that it could have required that an appropriate notice of the complaint be e mailed to defendant so that actual notice to defendant would likely have been effected. The Court stated that perhaps " actual notice to defendant may not have been effected, but by attempting to notify her via e-mail, plaintiff's due diligence in making complete disclosure would have satisfied both the letter and spirit of R[ule]. 4:4-5. By reason of the foregoing, we reverse the denial of defendant's motion to vacate the final judgment of divorce."

We are often asked to insure title to property acquired through judicial proceedings effected through service by publication. Due diligence in such cases is a significant concern since our courts have consistently been unwilling to divest title based upon service by publication where parties could have been located with little extra effort. Search engines on the Internet, dedicated to locating people, are easily found and are becoming very powerful. We expect a trend in appellate decisions mandating Internet research, of some kind, as part of the due diligence process.

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