A case decided last month in a Brooklyn, New York trial court serves as a valuable reminder to defaulting homeowners (and their attorneys) that, in cases where a foreclosure judgment has already been entered (and even if a foreclosure sale has already taken place), it is still possible to void the sale and the judgment if the process server failed to properly serve the property owner with the lawsuit upon commencement of the legal action.(1)
In this case, service of process upon the defaulting property owner was purportedly effected by resorting to what is referred to as "nail and mail service" (a form of substituted service that apparently is still allowed in New York) whereby the process server affixes one true copy of the the summons and foreclosure lawsuit on the door of the property owner's "actual dwelling place or usual place of abode." Service is completed when a second true copy is mailed to the property owner.
Unfortunately for the process server and the foreclosing lender, the two locations at which the nail and mail service was attempted (at the house that was the subject of the foreclosure action and at a second location) were not the property owner's "actual dwelling place or usual place of abode." In addition, the three affidavits of service that were filed in court by the process server relating to service on the delinquent property owner conflicted with each other.
The property owner (through counsel) presented an unrebutted affidavit to the court stating that she never lived at either of the two locations, and, for an 18 year period that included the dates on which service was purportedly attempted, she lived at another address.
In reaching his decision setting aside the foreclosure sale and vacating the judgment, Kings County Supreme Court Justice Martin Schneier reminds us of this basic, fundamental precept of law:
- It is "axiomatic that the failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void" (McMullen v. Arnone, 79 AD2d 496, 499 [2d Dept. 1981]), irrespective of the question of merit. [emphasis added in bold]
For the decision, see HSBC Bank USA, N.A. v Fleurimond, 2008 NY Slip Op 52320(U), Sup Ct, Kings County (November 18, 2008).
Go here for other posts on foreclosures involving faulty notifications to property owners.
(1) As simple as serving a defendant in a lawsuit may appear to the unitiated, the statutes that apply (other than in cases where the process server actually hands an individual defendant the summons and complaint in a face to face encounter) can be somewhat nuanced (particularly when a corporate defendant is involved). It may be a good idea for foreclosure defense counsel to review the statutes regulating service of process and, (in my view) more importantly, take the time to familiarize oneself with some of the case law applying the service of process statutes to become aware of the types of facts and circumstances that have resulted in a finding of faulty service. Such instances can open up opportunities for counsel to void a foreclosure judgment and, where a foreclosure sale has already taken place, void said sale, thereby forcing the foreclosing lender to go back to "square one" of the legal action and start over again.
In my humble judgment, process servers screw up (either innocently, or intentionally - ie. "sewer service") more often than many may think. Accordingly, the careful scrutiny of the process server's actions (reviewing the affidavits of service for errors & inconsistencies, eliciting oral testimony under oath from the process server) is something deserving of serious consideration. SewerServiceAlpha foreclosure faulty notice
