Berkman Henoch Obtains Favorable Second Department Decision Regarding Personal Jurisdiction Resulting in the Lender’s Judgment of Foreclosure Being Affirmed

Megan K. McNamara and Rajdai D. Singh, associates of the Firm’s Foreclosure Department, successfully defended Residential Mortgage Loan Trust 2013-tt2, By U.S. Bank National Association, Not In Its Individual Capacity, But Solely As Legal Title Trustee (“Residential”) from an appeal filed by the defendants in a pending foreclosure action. The appeal stemmed from the Lower Court’s order which granted Residential’s motion for judgment of foreclosure and sale, and denied the branch of defendants’ motion seeking dismissal for lack of personal jurisdiction. While the referee appointed by the Lower Court held a traverse hearing to determine whether service was properly effectuated, she did not require the process server to testify because he could not be located. Relying on the process server’s affidavit of service the burden shifted to defendants to rebut plaintiff’s prima facie evidence of service.  Even though one of the defendants appeared at the traverse hearing, he failed to testify and as a result, the referee held that service was proper. The Lower Court granted judgment of foreclosure and sale in Residential’s favor and the Second Department affirmed.  The Second Department specifically held that jurisdiction over defendants was conclusively established as a result of defendants’ failure to rebut plaintiff’s prima facie demonstration of proper service.

A copy of the Second Department’s Order:  Berkman Henoch Obtains Favorable Second Department Decision Regarding Personal Jurisdiction