United States: New Jersey Appellate Division Rules Specific Searches Not Required Before Resorting To Service By Mail

In New Jersey, there are three different means by which service can be effected by mail when the primary method, personal service, is unsuccessful. Each method is unique to the specific situation that gives rise to the resort to service by mail, and is ruled by its own set of conditions. The New Jersey Appellate Division recently rejected an attempt to blur the lines between the rules, and provided clarity as to what constitutes "diligent effort and inquiry," a requirement found in each rule.

In U.S. Bank Nat'l Ass'n v. Curcio, No. A-2649-13T4, 2016 N.J. Super. LEXIS 22 (App. Div. Feb. 1, 2016), the defendant defaulted on a promissory note, which had been assigned to the plaintiff, U.S. Bank National Association. After exchanging some correspondence with the defendant (which was addressed to the defendant's encumbered residence in New Jersey), the bank initiated a foreclosure action on the mortgaged property. Three attempts at personal service at the encumbered property ensued—and failed. A New Jersey rule, Rule 4:4-3(a), permits service by mail if a party is unable to personally serve process after diligent effort and inquiry. The bank engaged in what it considered to be a "diligent effort" to locate the defendant: (1) employment of a private investigator to conduct records searches; (2) inquiry with the U.S. Postal Service regarding change of address submissions; (3) skiptracing; (4) inquiry with the Department of Motor Vehicles; (5) inquiry with the Tax Assessor's office; and last but not least: (6) talking with neighbors. Every inquiry indicated that the defendant still resided at the encumbered property.

The bank then mailed the summons and complaint by regular and certified mail to the encumbered property. The certified mail was returned marked "unclaimed." The regular mail was not returned. The bank filed a certification with the court, stating the specific efforts it took to locate the defendant, and entered default when no answer was filed. Eventually, the bank obtained a default judgment and the court ordered a sheriff's sale of the property.

The defendant moved to vacate the entry of default judgment, but the trial court found that the bank's three unsuccessful attempts to serve the defendant personally allowed the bank to serve the defendant by mail. An appeal to the Appellate Division followed. The defendant argued that the bank should have performed title searches through surrogate courts, examined vital statistics, and searched the records of the New Jersey Department of Banking and Insurance, among other entities. The court rejected this argument noting "our Court Rules do not require specific searches ... before resorting to service by mail."1 "As set forth above," the court continued, "[the bank] performed a diligent inquiry."2 The court noted that the "defendant does not argue that such [proposed] searches would have led to [the bank] discovering a different address for defendant. ... Instead, defendant's certification admits that she has resided at the encumbered property for thirty-five years."3 The court would not say what specific attempts would constitute "diligent effort and inquiry." Instead, it implied that a review of all efforts would be made on a case-by-case basis to determine if, under the circumstances of that case, the inquiry made was "diligent." Here, the court found the bank's efforts were diligent, justifying service by mail pursuant to Rule 4:4-3(a).

Defendant then argued that the bank should have made service by mail pursuant to Rule 4:4-4(b) (1). Rule 4:4-4(b)(1) provides for service by mail but requires that specific information be sought personally or by mail of anyone who may have information as to the defendant's location, something that the bank did not do. However, Rule 4:4-4(b) (1) is New Jersey's long-arm provision prescribing how service may be made on a person not present in the state. The bank had no reason to believe that the defendant was residing out of state and all of its inquiries indicated that she was indeed still residing at the mortgaged residence in New Jersey. The court found that Rule 4:4-4(b)(1) did not apply.

The court also discussed Rule 4:4-5(a) because the trial court had referred to it when deciding that service by mail was proper. Rule 4:4-5(a) permits service by mail in actions affecting property, which certainly was the case here, but also requires diligent inquiry before mail service will be permitted. However, like Rule 4:4-4(b)(1), it applies only when the party cannot, after diligent inquiry, be served within the state. The court found that service under this rule was not necessary because the defendant could be, and was, served within the state by mail under Rule 4:4-3(a).

In light of Curcio, practitioners now know that there are no specific steps that are required in order to meet the "diligent inquiry" requirement. To be sure, not every case will require a private investigator and skiptracing. But these tools, employed as part of a belt-and-suspenders approach to a diligent inquiry, cannot hurt. Practitioners should also be sure to document their efforts to effect personal service. Ultimately, there are any number of ways to conduct an inquiry into the location of a defendant, and as long as the sum total of those inquiries demonstrates to the court that the effort was diligent, service by mail should be proper.


1 Curcio, 2016 N.J. Super. LEXIS 22, at *11-12 (citing R. 4:4-7).

2 Id. at *12.

3 Id. (citations omitted).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions