HSBC Bank USA v Cheryl Keeling
Categories
Attorneys and Parties
Brief Summary
Mortgage foreclosure and service of process, specifically whether the court had personal jurisdiction over the defendant based on proof of service.
The lower court granted Cheryl Keeling's motion seeking proof of service of the motion to foreclose and sell the property and, on its own initiative, dismissed the foreclosure complaint for lack of personal jurisdiction.
The Appellate Division reversed the order, denied Keeling's motion, and reinstated the complaint.
The plaintiff established prima facie proper service through the process server's affidavits. Keeling's submission was an unsworn affidavit and did not set forth specific facts sufficient to rebut the affidavits or require a traverse hearing.
Background
HSBC Bank USA brought a mortgage foreclosure action against Cheryl Keeling and others in Bronx County. In response, Keeling moved for proof of service relating to the foreclosure proceedings. The plaintiff submitted process server affidavits with its motions and in opposition to Keeling's motion to show that service had been properly made.
Lower Court Decision
The Supreme Court, Bronx County, granted Keeling's motion for proof of service and sua sponte dismissed the complaint on the ground that the court lacked personal jurisdiction over her.
Appellate Division Reversal
The Appellate Division, First Department, unanimously reversed. It held that a process server's affidavit constitutes prima facie evidence of proper service, and that the plaintiff met that burden here. The Court further held that although a sworn denial of service can sometimes require a traverse hearing, Keeling was not entitled to such a hearing because her affidavit was unsworn and failed to raise a factual issue. The motion was denied and the complaint reinstated.
Legal Significance
This decision confirms that in New York foreclosure litigation, process server affidavits are sufficient to establish prima facie proper service and personal jurisdiction unless the defendant offers a sworn, fact-specific challenge. An unsworn or conclusory denial will not defeat service or trigger a traverse hearing.
A defendant challenging service must submit a sworn statement with specific facts; otherwise, a process server's affidavit will support personal jurisdiction and preserve the foreclosure action.