Lender’s Trouble With Process Service – But This Time They Win
Lenders need not be reminded that mortgage foreclosure actions in New York take forever and a major component of the time consumed is attributable to process service. Every defendant in the action of course must be served, jurisdiction must be obtained, and that can become a lengthy process, something we have discussed in other alerts and need not be explored here. The other peril in this arena is that an attack on process service can come in the middle, or near the end, or even after a foreclosure sale has been completed. If the challenge to process service is upheld at this late date, then the case will either be dismissed or go back to the very beginning – obviously a disastrous situation for the foreclosing lender.
As reminded by a recent case [Ocwen Loan Servicing, LLC v. Ali, 180 A.D.3d 591, 119 N.Y.S.3d 474 (1st Dept. 2020)], the focus here will be primarily on the type of attack. (While any defendant may claim not to have been served, defaulting borrowers typically do this with the most zeal. They are rarely waiting at home rushing to the front door to invite legal papers to be handed to them.)
The two mentioned principles in the recent case, albeit well established, are that the affidavit of a process server constitutes prima facie evidence of proper service. This of course is a strong point for the foreclosing party. If the process server swears to having completed the service, then the initial case is made. It doesn’t mean it cannot be assailed, but the first burden has been met.
The next helpful part of the equation, again well established, is that mere denial of receipt of service is insufficient to rebut the presumption of proper service created by a properly executed affidavit of service.
With those maxims in mind one might think that the process service road is not a tough one, but in fact it is. While many a defendant will be careless enough to just deny receipt of service, without the needed specificity, plenty of others will present a tale designed to deflect the sworn statement of the process server. While process servers are fallible, and sometimes they do not do their jobs correctly, on the ground experience suggests that overwhelmingly, process service is properly done – although that does not mean that courts cannot rule the opposite way.
In the recent case, there was some room for concern on the lender’s part. The borrower’s affidavit denied that she was personally served because she had temporarily moved to a family member’s home. Her claim was that she was never in her dwelling place or usual place of abode at the time service was allegedly affected upon her. This is a lot closer to the needed specificity, but there was no documentary evidence to support the assertion and so the court found her presentation insufficient to defeat jurisdiction.
As a backup argument she averred that she was shorter than the person described in the affidavit of service, but that too was found insufficient to rebut the presumption of proper service. Fortunately for the foreclosing party, the borrower did not dispute that the other descriptions in the affidavit of service, such as her age, weight, hair color, and skin color did match her description.
That process service remains, and will without doubt continue to be an area of peril for any foreclosing party is not in question. But decisions such as the one reported here are certainly encouraging and help to create a more level playing field.
Mr. Bergman, author of the four-volume treatise, Bergman on New York Mortgage Foreclosures, LexisNexis Matthew Bender (rev. 2019), is a partner with Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. in Garden City, New York. He is also a member of the USFN, The American College of Real Estate Lawyers, The American College of Mortgage Attorneys, an adviser to the New York Times on foreclosure issues and writes a regular servicing column for the New York Law Journal. He is AV rated by Martindale-Hubbell, his biography appears in Who’s Who In American Law and he has been for years listed in Best Lawyers In America and New York Super Lawyers.