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Civil Practice — Service of Process – Due Diligence – Prior to Suit – Taxation – Real Property – Foreclosure


Watauga County v. Beal (Lawyers Weekly No. 011-312-17, 12 pp.) (Wanda Bryant, J.) Appealed from Watauga County District Court (Hal Harrison, J.) N.C. App.

Holding: The plaintiff-county knew, from its many previous attempts to contact defendant to get her to pay her property taxes, that defendant could not be found to serve personally. The county’s pre-complaint faxes to a number at which the county had successfully contacted defendant before and its attempts to serve defendant at the only address she had given them – a post office box – constituted due diligence under these circumstances.

We affirm the trial court’s refusal to set aside entry of default, default judgment, foreclosure sale, and commissioner’s deed.

The facts of this case are unique in that plaintiff essentially accomplished or satisfied much of the due diligence requirement before the complaint was ever filed.

Indeed, defendant admitted during a phone call to plaintiff’s attorney regarding the foreclosure sale that the Conover Post Office box was no longer her mailing address, she had moved to another county, and changed her name, all without notifying the County Tax Listing Office.

Defendant’s contention that “it was common knowledge where she could be found” will not suffice where the record suggests that since at least 2013, defendant appears to have made every effort to purposefully conceal exactly that fact, i.e., the fact of her whereabouts, at least for the purposes of plaintiff’s collecting duly owed property taxes. In other words, defendant will not now be heard to complain on appeal about lack of notice where she failed in the first place to provide notice to the County Tax Listing Office that she had changed her name and moved to another county.

Based on the circumstances of this case, we conclude that where plaintiff already knew from extensive prior experience with defendant that it could not with due diligence effect service of process on defendant by personal delivery or by registered or certified mail, plaintiff’s actions satisfied the “due diligence” necessary to justify the use of service of process by publication.



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