An “appearance” is a party’s participation in a lawsuit. Failure to appear can lead to an entry of a default judgment against a homeowner. Appearing in a foreclosure action entitles a homeowner to defend and receive notice of all subsequent proceedings. An appearance by a homeowner in an action is deemed to be the equivalent of personal service of a summons upon him, and therefore confers personal jurisdiction over him, unless he asserts an objection to jurisdiction either by way of motion or in his answer.
After a homeowner is served with a summons and complaint, he must respond in writing within a limited period of time. An answer is a pleading submitted by a homeowner or respondent in response to allegations asserted by the plaintiff or petitioner. The written response must be made within 20 days of personal service, or within 30 days of the time when service by any other means is complete. If a homeowner fails to respond, he or she is in default and plaintiff may be able to obtain a default judgment against the homeowner for the relief requested. The Answer contains the legal defenses and counterclaims regarding the issues in a homeowner’s foreclosure action.
In a foreclosure suit, particularly with regard to a “high-cost home loan,” a “subprime home loan” or a “non-traditional home loan,” RPAPL 1304 law mandates that, at least 90 days before a lender or mortgage loan servicer commences legal action against the borrower, the lender or mortgage loan servicer must give the borrower a specific, statutorily prescribed notice called “90 Day Notice.” The 90 Day notice must be sent in a statutorily defined manner, method and form of delivery. In essence, the 90 Day notice warns the borrower that he or she may lose his or her home because of the loan default and provides information regarding assistance for homeowners who are facing financial difficulty. The bank’s failure to send the 90 Day notice in the compliance with the statutory requirements violates RPAPL 1304 and can warrant the dismissal of the bank’s foreclosure action.
New York courts have consistently held that to have standing, the plaintiff must have title to both the note and mortgage at the time the foreclosure action was commenced. “Foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt [the note], the assignment of the mortgage is a nullity. To become a holder of a promissory note and thus to have standing, a foreclosing plaintiff must establish endorsement of the note and physical delivery of it prior to the commencement of the foreclosure action. “In order to commence a foreclosure action, the plaintiff must have a legal or equitable interest in the subject mortgage… A plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note prior to commencement of the action with the filing of the complaint… Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident.” The court will dismiss a foreclosure action if it determines the bank lack’s standing in a particular matter.
In a foreclosure action, the homeowner has a promising defense when an agency relationship between a principal and agent has not been established. It has been held that the agent, who has a fiduciary relationship with the principal, “is a party who acts on behalf of the principal with the latter’s express, implied, or apparent authority.” In a foreclosure context a principal is usually a Bank or Trust and its Agent is its Servicer or Trustee. An agency relationship is also within the context of a servicer and its mortgage employee. A party who claims to be the agent of another bears the burden of proving the agency relationship by a preponderance of the evidence. In the absence of any evidence that an officer or employee of loan servicing corporation was authorized to act as a representative of foreclosing lender, neither documents executed by officers for servicing corporation nor communications by counsel with officers could satisfy requirements of administrative order or otherwise support judgment of foreclosure and sale.
Personal jurisdiction is obtained by serving a homeowner with a summons and complaint. But, a homeowner must be properly served for the court to obtain personal jurisdiction. The preferred methods of personal service on an individual are by delivering the summons to the homeowner (see CPLR 308 ), or by delivering the summons to a person of suitable age and discretion and mailing another copy of the summons to the defendant’s last known residence or actual place of business (see CPLR 308 ). If service cannot be effected by those methods “with due diligence,” CPLR 308 (4) permits so-called “nail and mail” service, which entails affixing the summons to the door of the defendant’s “actual place of business, dwelling place or usual place of abode,” and by mailing the summons either to the defendant’s last known residence or actual place of business. A homeowner may raise a challenge to the summons or service of process in a motion to dismiss the complaint for lack of jurisdiction over the homeowner; or as an affirmative defense in the answer. A homeowner may move to dismiss a complaint for lack of personal jurisdiction where the homeowner was improperly served with process.
An appearance by a defendant in an action is deemed to be the equivalent of personal service of a summons upon him, and therefore confers personal jurisdiction over him, unless he asserts an objection to jurisdiction either by way of motion or in his answer. However, the defense of lack of personal jurisdiction is waivable and must be raised at the outset of a homeowner’s appearance in the action.
A Traverse Hearing is a pre-trial hearing ordered by a judge to determine the sufficiency of service of process in a civil action. To warrant a Traverse Hearing, the homeowner must submit a sworn affidavit denial containing a detailed and specific contradiction of the allegations in the process server’s affidavit that defeats the presumption of proper service. If a Judge deems that a homeowner has rebutted the presumption of valid service and the issue is unresolved, he will schedule a Traverse Hearing. A judge may conduct the hearing himself or refer the case to a judicial hearing officer (“JHO”) to conduct the hearing. At the traverse hearing the burden is on the Bank to call the process server as a witness and testify as to the service. The process server must appear with his log book, copies of his affidavit(s), copy of the photograph of the premises served and, as is required by the New York City Administrative Code, his process serving license. Pursuant to New York General Business Law Section 89-cc, a process server is required keep a log including the details of the service. The log must include:
“legible record of all service made by him as prescribed in this section. Such records shall be kept in chronological order in a bound, paginated volume. […]. The record to be maintained shall include the following information, where applicable: (a) the title of the action or a reasonable abbreviation thereof; (b) the name of the person served, if known; (c) the date and approximate time service was effected; (d) the address where service was effected; (e) the nature of the papers served; (f) the court in which the action has been commenced; (g) the index number of the action, if known; (h) if service is effectuated pursuant to subdivision four of section three hundred eight of the civil practice law and rules or subdivision one of section seven hundred thirty-five of the real property actions and proceedings law, a description of the color of the door to which the summons is affixed; (i) the process serving agency from whom the process served was received, if any; (j) type of service effected whether personal, substituted or conspicuous; (k) if service is effected pursuant to subdivision one, two or three of section three hundred eight of the civil practice law and rules, the record shall also include the description of the person served, including, but not limited to sex, color of skin, hair color, approximate age, height and weight and other identifying features; (l) if service is effected pursuant to subdivision four of section three hundred eight of the civil practice law and rules, the record shall also include the dates, addresses and time of attempted service pursuant to subdivision one, two or three of such section; (m) if the process server files an affidavit of service with the court, his record shall include the date of such filing.”
A homeowner’s attorney can cross examine the process server, present and contest evidence and conduct direct examination of witnesses during litigation. The Court either decides at the hearing that service was improper as a matter of law and dismisses the Complaint without prejudice or, more likely, orders plaintiff to re-serve the Complaint properly.
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