Those who have lost a property to foreclosure know one thing is almost certain; they're not likely to see their homes again. A New York man is singing a different tune, however, after the Supreme Court of New York vacated a bank's foreclosure sale of his home. Justice Allan Weiss overruled a Deutsche Bank's foreclosure on a defendant's property, finding that the documents filed by the bank deprived the homeowner of due process.
It may seem like a fairy tale, but here is the law and how it was applied: In New York, a party moving to dismiss a default must demonstrate a reasonable excuse for the default and demonstrate a potentially meritorious defense. A defendant need not demonstrate this if the basis for the request to vacate is that the Court lacks personal jurisdiction. Keep in mind that if the court doesn't have personal jurisdiction, subsequent holdings should be dismissed and it is the Plaintiff's burden to prove personal jurisdiction by proper service of process. A process server's signed affidavit serves as prima facie evidence of proper service. If personal jurisdiction is not obtained in this fashion, the proceeding is proper for dismissal without condition.
The Court found the Plaintiff failed to submit any proof that they properly served the Defendant. The affidavit of service Plaintiff submitted had a Supreme Court of Kings County Caption (it should have been in Queens) with an index number that did not match the actual foreclosure. The address where Plaintiff tried to serve the Defendant was not even the Defendant's address.
This is a prime example of the sloppiness that certain lenders and their legal counsel have perpetrated when pursuing sometimes thousands of foreclosures nationwide. This should serve as a reminder to homeowners that there are defenses to a foreclosure case. If you are facing a Florida Foreclosure Lawsuit, contact a Florida Foreclosure Defense Lawyer or a Jacksonville Foreclosure Defense Lawyer for a free consultation. Do not lose the ability to defend your home by sitting on your rights. c
