August 2011 Vol. 4, No. 7



Foreclosures; Mortgages

PHH Mortgage Corp v Mattfeld, 2010 AP 612 (Wis Ct App 2011).

Facts: PHH Mortgage Corporation brought a foreclosure action in 2008 against Scott and Shelley Mattfeld. The Mattfelds did not appear in court. PHH presented evidence that it had attempted personal service of process, had been unsuccessful, and had then served the Mattfelds through publication. The circuit court entered default judgment against the Mattfelds. The Mattfelds made a motion for relief from the default judgment, arguing that the judgment was void for lack of personal jurisdiction because PHH did not effect proper service of process.

The Mattfelds argued that process was defective for a number of reasons. First, PHH's summons and complaint had misspelled the Mattfelds' last name as "Mattfield." Second, the Mattfelds argued that PHH attempted personal service at their former home and that, therefore, PHH had notice that the property was vacant. Further, they argued PHH had notice from the post office of the Mattfelds' change of address but did not attempt service at the new address. Finally, the Mattfelds argued that the service by publication was improper because it did not meet the standards of Wisconsin Statute Section 985.02(1), which states that a "legal notice shall be published in a newspaper likely to give notice in the area or to the person affected." The trial court denied the motion for relief and the Mattfelds appealed.

Holding: Reversed and remanded. The court of appeals focused on the defective service by publication and held that because the publication was improper, the trial court did not have personal jurisdiction over the Mattfelds. PHH published notice in the Daily Reporter, a Milwaukee public newspaper of general circulation. The Mattfelds did not live in Milwaukee; they lived in Menomonee Falls about 20 miles north of Milwaukee, in the county of Waukesha.

PHH maintained that the Daily Reporter was distributed throughout the state, but an affidavit from the newspaper's publisher stated that the paper was "not a qualified legal newspaper in Waukesha County, where the property that is the subject of the action is located." The court thus held that the Mattfelds had met their burden of proof and shown that the Daily Reporter did not meet the requirements of Section 985 because it was not likely to give notice to the area in which the Mattfelds lived.

Because PHH did not properly serve the Mattfelds, the trial court did not have personal jurisdiction over them and the default judgment was void. Therefore, the court of appeals reversed the order denying the Mattfelds motion and remanded the case with instructions to vacate the judgment.

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