Sunday, November 14, 2010

Opportunity To Reclaim Homes For Foreclosed Owners Victimized By "Nail & Mail" Sewer Service?

As the number of ex-homeowners looking to reclaim their unlawfully foreclosed-upon homes increases, a number of methods to accomplish this goal will gain attention. One method is to challenge the propriety of the manner in which the notice of the foreclosure lawsuit was purportedly served upon the homeowner.

In New York, one approach to "sewer service" engaged in by lazy or corrupt process servers involves the use of the "nail and mail" (also known as "post and mail" in some parts of the country) method of serving notice on the homeowner when the server fails to first use "due diligence" in attempting to locate the homeowner. (The "nail & mail" method allows the process server to simply affix the foreclosure notice - the summons and complaint - on the front door of the homeowner's last known residence - ie. "nailing" - and follow up by mailing the notice to said residence).

For those homeowners in New York (and possibly elsewhere) who were purportedly served notice by this method, and now seek to void the foreclosure judgment and the subsequent foreclosure sale (even if the home has since been sold to a new homeowner), the following excerpt from a 2009 Suffolk County, New York lower court ruling may provide some perspective as to what to look for when reviewing the affidavits the process server filed in court swearing that he/she properly served the required notice (bold text is my emphasis, not in the original text):

  • The "due diligence" portion of the plaintiffs affidavit of service indicates that prior to the "nail and mail" service, the process server attempted to deliver the summons and complaint to the defendant(s) on 4/30/08 at 5:30 pm, on 5/17/08 at 10:30 am. The "nailing" was then accomplished on 6/7/08, with the '"mailing" being effectuated several days later. There is no indication that the process server attempted to inquire about or serve the defendant(s) at a place of employment.

    The "nail and mail" method of service pursuant to CPLR §308(4) may be used only where personal service under CPLR §308(1) and (2) cannot be made with "due diligence" (Lemberger v Khan, 18 AD3d 447, 794 NYS2d 416 [2d Dept 2005]).

    The due diligence requirement of CPLR §308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received (McSorley v Spear, 50 AD3d 652, 854 NYS2d 759 [2d Dept 2008]; Estate of Waterman v Jones, 46 AD3d 63, 843 NYS2d 462 [2d Dept 2007]; O'Connell v Post, 27 AD3d 630, 811 NYS2d 441 [2d Dept 2006]; Scott v Knoblock, 204 AD2d 299, 611 NYS2d 265 [2d Dept 1994]; Kaszovitz v Weiszman, 110 AD2d 117, 493 NYS2d 335 [2d Dept 1985]).

    What constitutes due diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality (McSorley v Spear, supra; Estate of Waterman v Jones, supra). Attempting to serve a defendant at his or her residence without showing that there was a genuine inquiry about the defendant's whereabouts and place of employment is fatal to a finding of due diligence as required by CPLR §308(4) (Id.; see also, Sanders v Elie, 29 AD3d 773, 816 NYS2d 509 [2d Dept 2006]).

    Further, absent any evidence that the process server attempted to determine that the address where service was attempted was, in fact, the actual dwelling or usual place of abode of the defendant(s), such as by searching telephone listings or making inquiries of neighbors, the requirement of CPLR §308(4), that service under CPLR §308(1) and (2) first be attempted with "due diligence," is not met (Kurlander v A Big Stam. Corp., 267 AD2d 209, 699 NYS2d 453 [2d Dept 1999]).

    Since the plaintiff has failed to meet the ''due diligence" requirement for "nail and mail" service under CPLR §308(4), jurisdiction over the defendant has not been established(1) and the plaintiffs motion must be denied (Sanders v Elie, supra; Earle v Valente, 302 AD2d 353, 754 NYS2d 364 [2d Dept 2003]; Annis v Long, 298 AD2d 340,751 NYS2d 370 [2d Dept 2002]) Earle v Valente, supra; Annis v Long, supra)

For the ruling, see Countrywide Home Loans, Inc. v Bouvin, 2009 NYSlipOp 32670(U) (NY Sup. Ct. Suffolk County, September 28, 2009).

Go here for links to court rulings involving "nail & mail" method of process-serving and the due diligence required before using this method.

See also:

  • Arizona Real Estate Inv., Inc. v. Schrader, 244 P.3d 565 (Az. Ct. of App. Div. 1, November 9, 2010) for an Arizona ruling reaching the same result involving the "post and mail" method of service, where it found a process server's affidavit of service deficient in that it was silent as to whether he made more than one attempt to serve the homeowner, who still resided in the home. The affidavit also included no facts attesting to any impediments to or evasion of personal service.

  • Bogus v. Bank of New York, No. 2081195 (Ala. Civ. App. April 16, 2010) for an Alabama ruling holding that a lower court had no jurisdiction to boot a homeowner out of his recently foreclosed home where there was no attempt to personally serve the homeowner with process. All the process server did was post the notice on the premises without any attempt to first physically locate the homeowner's whereabouts and provide him with the required notice personally.

(1) Keep in mind that 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." Elm Mgt. Corp. v. Sprung, 33 A.D.3d 753; 823 N.Y.S.2d 187; 2006 N.Y. App. Div. LEXIS 12494 (App. Div. 2nd Dept. 2006). This means that the foreclosure judgment, the foreclosure sale, and any subsequent sale to unwitting third parties would also be null and void. (To those under the mistaken belief that an unwitting purchaser, for value and without notice of the defects in the foreclosure sale is a bona fide purchaser whose claim will defeat the claim of the foreclosed homeowner, I would point out that bona fide purchaser status is only relevant if the judgment is found to be merely voidable, as opposed to absolutely void (wholly void, void ab initio, or just plain void). Stated another way, there is no such thing as bona fide purchaser status in the context of an absolutely void judgment).

For more on void judgments, see: