Nationstar Mortgage LLC v. June O'Connor
Attorneys and Parties
Brief Summary
Mortgage foreclosure; whether personal jurisdiction existed based on service of process, warranting a traverse hearing, and whether an attorney’s appearance waived jurisdictional objections under New York Civil Practice Law and Rules (CPLR) 5015(a)(4) [motion to vacate a judgment for lack of jurisdiction] and CPLR 5015(a)(1) [motion to vacate a judgment due to excusable default].
The Supreme Court, Bronx County denied defendant’s motion to vacate the order of reference and the judgment of foreclosure and sale.
The Appellate Division reversed the order denying the motion and remanded for a traverse hearing on service and on whether the attorney who appeared did so with defendant’s authorization.
Defendant submitted sworn affidavits from a coworker and her daughter specifically rebutting the process server’s affidavits (challenging both business service and nail-and-mail at the alleged residence) and raised a factual dispute as to whether the purported appearance by counsel was authorized, requiring a hearing.
Background
Plaintiff commenced a mortgage foreclosure action. Affidavits of service stated that defendant was served at her actual place of business via a person of suitable age and discretion and by nail-and-mail at her actual dwelling or usual abode. Defendant moved to vacate the July 8, 2015 order of reference and the October 31, 2016 judgment of foreclosure and sale under CPLR 5015(a)(1) and 5015(a)(4), arguing lack of proper service and that she never retained the attorney who opposed the order of reference on her behalf. Defendant submitted an affidavit from a coworker averring that the person who purportedly accepted service at the workplace was not an employee, and an affidavit from her daughter averring that the residence used for nail-and-mail was the daughter’s home, not defendant’s, and that no service attempts occurred on the dates and times claimed.
Lower Court Decision
The Supreme Court, Bronx County (Semaj, J.) denied defendant’s CPLR 5015 motion, leaving the order of reference and judgment of foreclosure and sale intact.
Appellate Division Reversal
The Appellate Division reversed and remanded for a traverse hearing to determine whether personal jurisdiction was obtained over defendant and whether the attorney who filed opposition was authorized to appear. Given the need for a hearing on CPLR 5015(a)(4), the Court did not reach the CPLR 5015(a)(1) argument.
Legal Significance
The decision underscores that detailed, sworn denials can rebut the presumption of proper service created by a process server’s affidavit, necessitating a traverse hearing (see Wells Fargo Bank, N.A. v Jones, 139 AD3d 520, 523 [1st Dept 2016]). It also highlights that a purported attorney appearance does not waive jurisdictional objections if authorization is disputed and unresolved, warranting a hearing (see Ming Xue Xir v 422 Sunshine Ct., LLC, 227 AD3d 980, 982 [2d Dept 2024]).
In foreclosure actions, specific, sworn challenges to service and to the authorization of counsel’s appearance require a traverse hearing before a judgment can stand; courts will not reach excusable-default arguments until personal jurisdiction is established.