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Home Improvement, Inc. v. Villar.

2022 COA 129. No. 21CA1241. Civil Procedure—Service of Process—Service by Mail—Service by Publication—Address—Last Known Address.

November 3, 2022

Home Improvement, Inc. performed repair work to the residence on Villar’s property (the property). Home Improvement was unable to collect the outstanding amount it was owed for the work, so it sent Villar a notice of intent to file a mechanic’s lien via certified mail to the property. This notice was sent “return receipt requested” but was returned as undeliverable, with a handwritten notation on the envelope stating, “UAA P[.]O. Box.” Home Improvement later sued Villar. A process server was unable to serve Villar, so Home Improvement filed a verified motion to proceed against the property in rem. The district court authorized service by mail and by publication. Home Improvement sent a copy of the process to the property via certified mail, return receipt requested, but the mail was returned undeliverable. Home Improvement also published the process in a newspaper in the county where the action was pending, and it had the process server attach a copy of the complaint and other process to the front door of the house at the property. Villar never appeared in the case, and the district court ultimately entered a default judgment and decree of foreclosure against him. The sheriff ultimately auctioned off the property, and after Villar’s wife was served with a notice to quit at the property, Villar moved to set aside the default judgment and foreclosure sale. The district court concluded that Villar’s last known address was the property address, and it left the judgment intact.

On appeal, Villar argued that the judgment is void because the district court lacked in rem jurisdiction due to ineffective service of process. Under CRCP 4, a verified motion seeking service by mail or publication must state “the address, or last known address” of the person to be served. For service by mail, a copy of the process must be sent by registered or certified mail to such address, and a signed return receipt is required before service is complete. Service by publication similarly requires mailing a copy of the process to each person whose address or last known address was stated in the motion and filing of proof thereof. “Address” is the place at which a party generally recognizes that another party can be communicated with, and “last known address” is the most recent such place. Here, when the notice of intent to file the mechanic’s lien was returned to Home Improvement “not deliverable as addressed,” Home Improvement became aware that mail would not be delivered to the property address but could be delivered to Villar’s P.O. box. The property address ceased to be a “known” address, while the P.O. box became the only address, and thus the last known address. Because neither the service by mail nor the service by publication used Villar’s P.O. box, the district court never obtained in rem jurisdiction over the property. Accordingly, the judgment is void, and the foreclosure and any resulting orders cannot stand.

The order denying the motion to set aside the default judgment and the order of possession were reversed. The case was remanded for further proceedings.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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