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SERVICE - BOGUS V. BANK OF NEW YORK

In Bogus v. Bank of New York, [Ms. 2081195, Apr. 16, 2010] __ So. 3d __ (Ala. Civ. App. 2010), the Alabama Court of Civil Appeals held that under Title 62 ¤ 129, Ala. Code 1940 (as recompiled in 1958), service by posting process on foreclosed property does not constitute valid service unless there has been a previous attempt at personal service. Title 62 ¤ 129 applies to counties with a population of 90,000 or more according to the last federal census. It authorizes a person who became the owner of real estate by virtue of a mortgage foreclosure to file an ejectment action if the person in possession of the real estate did not surrender possession of it within 10 days after written demand. It also contains specific requirements for service of the summons and complaint, including a provision that permits service by posting process on the premises if personal service is unsuccessful. The Court assumed, but did not decide, that Title 62 ¤ 129 remained in force pursuant to Ala. Code ¤ 1-1-10, Ala. Code 1975, which states that "all statutes of a public, general and permanent nature, not included in this Code, are repealed. The foregoing provisions shall not repeal, nor be construed to appeal. . .statutes which apply to one or more counties. . .on the basis of population." Defendants never attempted personal service, but merely posted process on the foreclosed premises. Because it concluded that Plaintiffs were not validly served, the Court set aside the default judgment that had been entered against them.

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