by Blair Gisi, Esq.  
SouthLaw, P.C.  
USFN Member (IA, KS, MO, NE)

In Kansas over the last several years, even prior to the difficulties caused by COVID-19, there has been a swell of scrutiny surrounding service by publication from title companies and underwriters.  The source of this scrutiny stems from K.S.A. §60-309(a) which provides that a judgment entered on service by publication, “may at any time within two years after its entry, move for relief from the judgment and to be allowed to defend.”

The obvious concern is that a property sold under a judgment where plaintiff effected service by publication would be vulnerable.  However, the statute also considers that and provides that if sale of the real estate in question is made for value after three months from the date of the judgment, then the motion to set aside the judgment has no effect on the sale.

In the COVID-era, this issue becomes more prevalent with the limitations surrounding federally backed loans and the ability to proceed with foreclosure only against vacant or abandoned properties.  In other words, where industry firms are able to foreclose, it may be difficult to track down or locate the current location of the borrowers and firms, ultimately, will have to more frequently rely on service by publication.

With this rising attention to and increasing frequency of service by publication it becomes important to follow the statute setting out the requirements for service by publication under K.S.A. §60-307.  Of particular concern under this statute is the affidavit for service by publication, and even more specifically, K.S.A. 60-307(c)(2) – the requirement to make a “reasonable but unsuccessful effort to ascertain the names and residence of any defendants sought to be served as unknown parties . . . .”

While it is not entirely clear at the moment what “reasonable but unsuccessful effort” means, firms should make use of all resources available to them including skip-trace vendors, social media, or, in extreme cases where the circumstances warrant, even hiring a private investigator.  Just as importantly, be sure to document those efforts both in the firm file as well as in the affidavit itself.  An affidavit lacking details and true efforts by the signee is unlikely to survive review.

The perceived vulnerabilities surrounding service by publication are inherently unavoidable.  The best industry firms can do is abide by the guidelines as set forth in the relevant statutes, make good faith efforts at providing actual notice to the defendants, and documenting those efforts to extent to be able to stand up to the scrutiny from defendants, courts, and title companies.

Copyright © 2021 USFN. All rights reserved.

June 2021 e-Update