Merits Participation Waives Personal-Jurisdiction Defenses in Mortgage-Foreclosure Restoration Proceedings

1. Introduction

In LaSalle Bank Natl. Assn. v Blake, the Second Department addressed the consequences of a defaulting borrower’s participation in proceedings to restore a dismissed mortgage-foreclosure action. The principal holding is that a defendant who contests restoration and affirmatively seeks relief without objecting to personal jurisdiction or untimely service may waive those defenses. Once waived, the jurisdictional objection cannot later support relief from the defendant’s default under CPLR 5015(a)(4).

The decision also rejects two separate attempts to resist the foreclosure’s continuation: a renewal motion based on the Foreclosure Abuse Prevention Act (FAPA), and a claim that service of process after dismissal constituted extrinsic fraud. Although the opinion applies established principles rather than announcing an entirely new doctrine, it provides an important application of waiver rules to foreclosure-restoration proceedings.

The plaintiff was LaSalle Bank National Association. The appealing defendant, Kemi Blake, represented herself. The appeal concerned procedural orders allowing the litigation to proceed, not a final determination directing a foreclosure sale.

2. Background and Procedural History

In January 2007, Blake executed a $750,000 note secured by a mortgage on Brooklyn real property. LaSalle commenced this foreclosure action in December 2008, and Blake did not answer.

On July 19, 2017, Supreme Court directed LaSalle to move for an order of reference within 90 days and explain its delay in prosecuting the action. On November 8, 2017, the court dismissed the complaint on its own initiative as abandoned under CPLR 3215(c). The dismissal order with notice of entry was not served on LaSalle until July 2021.

LaSalle moved in August 2021 to vacate the dismissal and restore the action to the active calendar. Blake opposed restoration and cross-moved for relief, including sanctions against LaSalle’s counsel under 22 NYCRR 130-1.1. Crucially, she did not challenge personal jurisdiction or compliance with CPLR 306-b.

After Supreme Court restored the action, Blake sought both reargument and renewal. Her renewal application relied on FAPA, which became effective December 30, 2022. LaSalle subsequently sought a default judgment and an order of reference, while Blake cross-moved to vacate her default and dismiss the complaint against her.

The panel was unanimous and awarded LaSalle one bill of costs.

3. Summary of the Opinion

The court’s reasoning rests on five principal conclusions:

1. The jurisdictional challenge was not preserved. Blake improperly raised her challenge to personal jurisdiction over the May 2022 order for the first time on appeal.
2. The challenge also failed independently on waiver grounds. By opposing restoration and requesting affirmative relief without questioning jurisdiction or timely service, Blake submitted to the court’s personal jurisdiction.
3. FAPA did not justify renewal. Under the circumstances presented, its enactment did not affect the determination restoring this action.
4. Extrinsic fraud was not established. Blake did not show that service of process in 2020, after the abandonment dismissal, caused her to believe that she need not defend the action.
5. A waived jurisdictional objection could not support later vacatur. CPLR 5015(a)(4) did not revive the personal-jurisdiction defense she had relinquished through participation.

4. Analysis: Legal Reasoning

A. Preservation and waiver independently defeated the jurisdictional challenge

The opinion first identifies an appellate-preservation problem: Blake had not presented her personal-jurisdiction objection to Supreme Court when opposing restoration. An appellate court ordinarily does not decide an objection first advanced on appeal. The Second Department nevertheless addressed the objection’s substance and held that Blake had waived it.

These are distinct grounds. Preservation concerns whether an argument was properly presented for appellate review. Waiver concerns whether the defendant’s conduct relinquished the underlying defense. Thus, the decision does not merely decline to consider an untimely appellate argument; it also holds that the objection was substantively unavailable because of Blake’s participation below.

B. Participation in restoration proceedings constituted submission to jurisdiction

A defendant can waive personal jurisdiction by appearing without raising the defense in an answer or pre-answer dismissal motion. The opinion also recognizes a broader conduct-based principle: participation on the merits can demonstrate an intention to submit to the court’s authority.

Blake’s opposition to restoration, coupled with her affirmative request for sanctions and other relief, was decisive. She sought a favorable exercise of judicial authority without asking the court to determine whether it had personal jurisdiction over her. The court treated that combination as submission to jurisdiction.

The practical significance is that waiver does not depend exclusively on filing a formal answer. A defendant who has defaulted may still relinquish jurisdictional objections through later motion practice. Here, participation in the effort to reopen the dismissed action was sufficient.

The court did not determine that the original service was valid. Its holding instead made objections to service and personal jurisdiction unavailable because of Blake’s subsequent conduct.

C. The CPLR 306-b objection was also waivable

CPLR 306-b generally requires service of the summons and complaint within 120 days after commencement. The opinion emphasizes that an objection based on noncompliance must be properly raised; the statutory deadline does not create a dismissal claim that necessarily survives participation without objection.

Blake neither challenged service nor invoked CPLR 306-b when opposing restoration and requesting relief. Accordingly, the court held that she waived the service-timing defense as well as her personal-jurisdiction objection. The opinion therefore resolves the issue through waiver rather than through a factual determination that service occurred within the statutory period.

D. FAPA’s enactment did not alter the restoration determination

Blake sought renewal on the theory that FAPA constituted a change in law affecting the earlier restoration order. The court rejected that argument because, “under the circumstances,” FAPA had no effect on the determination to vacate the abandonment dismissal and restore the action.

This is a limited holding. The decision does not announce that FAPA can never affect an existing foreclosure action or a renewal application. Nor does it provide a general resolution of FAPA’s temporal reach. It establishes only that the statutory change did not supply a basis for disturbing this restoration ruling.

The court cited RPAPL 1301(3), a provision generally regulating additional actions to recover mortgage debt while a foreclosure action is pending or after judgment. The opinion does not describe a competing action or develop a detailed statutory analysis. Those missing facts should not be supplied by inference.

E. Extrinsic fraud required proof that deception discouraged a defense

CPLR 5015(a)(3) permits relief based on “fraud, misrepresentation, or other misconduct of an adverse party.” For the extrinsic-fraud claim presented here, Blake had to demonstrate a device, trick, or deceit that led her to believe she did not need to defend the lawsuit.

She argued that LaSalle’s service of process in 2020, while the complaint stood dismissed as abandoned, constituted extrinsic fraud. The court rejected that contention because she did not establish the required connection between the service and a belief that no defense was necessary.

The distinction is between alleging questionable procedural conduct and proving deception that interfered with participation in the litigation. The opinion does not establish that service after dismissal is always proper; it holds that the asserted conduct did not satisfy the particular fraud ground invoked.

F. CPLR 5015(a)(4) did not revive the waived defense

CPLR 5015(a)(4) authorizes relief for lack of jurisdiction to render a judgment or order. But personal jurisdiction is a protection a litigant can waive. Because Blake had already submitted to the court’s jurisdiction through her restoration-related motion practice, she could not later use the same jurisdictional objection to vacate her default.

The restoration and default-vacatur rulings therefore follow a single chain of reasoning: unqualified participation supplied personal jurisdiction; that participation waived the objection; and the waived objection could not support a later jurisdictional attack.

5. Precedents Cited and Their Influence

The cited decisions provide the doctrinal framework for waiver, statutory renewal, fraud-based relief, and jurisdictional vacatur. Their significance below is confined to the propositions for which the supplied opinion invokes them.

A. Appearance, participation, and service objections

BAC Home Loans Servicing, L.P. v Davis, 241 AD3d 1231, 1231–1232

This is a central waiver authority. The court cites it both for waiver through an appearance without a jurisdictional defense and for submission to jurisdiction through participation on the merits. It directly supports treating Blake’s opposition and affirmative request for relief as conduct that relinquished her objections.

U.S. Bank N.A. v Smith, 210 AD3d 725, 726

This decision supports the established rule that appearing without raising lack of personal jurisdiction in an answer or pre-answer dismissal motion may waive that defense. It supplies the conventional procedural baseline before the opinion turns to Blake’s particular motion practice.

Travelon, Inc. v Maekitan, 215 AD3d 710, 712

This authority supports the broader principle that merits participation manifests an intention to submit to jurisdiction. Its role is important because Blake’s waiver arose through opposition and a cross-motion, rather than through an answer addressing the foreclosure complaint.

Vanyo v Buffalo Police Benevolent Assn., Inc., 34 NY3d 1104, 1105

The Court of Appeals decision establishes that a CPLR 306-b objection is waived if not properly raised. It supplies the controlling foundation for rejecting Blake’s service-deadline argument without deciding whether service actually satisfied the 120-day requirement.

B. FAPA and restoration

Wilmington Trust, N.A. v Pacific St. Servs., Inc., 246 AD3d 777, 779

The court cites this decision directly in concluding that FAPA did not affect restoration under the circumstances. It provides precedent for rejecting the asserted statutory change as a reason to reopen the earlier ruling, although the supplied opinion does not elaborate on the factual comparison.

Citimortgage, Inc. v Hassanin, 242 AD3d 1169, 1170–1171

Cited as additional support alongside RPAPL 1301(3), this decision reinforces the rejection of the FAPA-based renewal argument. Because the opinion gives no further explanation, its use should not be expanded into a categorical holding about every FAPA provision or every restored foreclosure action.

C. Extrinsic fraud under CPLR 5015(a)(3)

HSBC Bank USA, N.A. v Bolkas, 243 AD3d 766, 768

This decision supplies the operative extrinsic-fraud formulation: a defendant must demonstrate deception that led the defendant to believe a defense was unnecessary. It directs the inquiry toward the effect of the alleged misconduct, not merely whether the challenged procedural act appeared irregular.

LaSalle Bank N.A. v Oberstein, 146 AD3d 945, 945–946

The opinion quotes this case through HSBC Bank USA, N.A. v Bolkas for the “device, trick, or deceit” standard and cites it again when rejecting vacatur. It therefore supports both the governing test and the conclusion that failure to establish the required deceptive effect defeats relief.

Empire State Conglomerates v Mahbur, 105 AD3d 898, 899

This decision supplies additional support for the extrinsic-fraud standard. Its role is corroborative: Blake needed to demonstrate interference with her decision to defend, rather than simply attach the label “fraud” to service occurring after dismissal.

D. Jurisdictional vacatur and the effect of prior participation

Bharath v Sitaram, 246 AD3d 859, 860–861

This is the principal authority linking CPLR 5015(a)(4) to waiver by participation. The court cites it for the availability of jurisdictional relief, the jurisdiction-conferring effect of merits participation, and the conclusion that a waived objection cannot later justify vacatur.

Sams Distribs., LLC v Friedman, 235 AD3d 1021, 1022

This decision supports the threshold proposition that CPLR 5015(a)(4) permits relief where jurisdiction was lacking. It identifies the available remedy, while the subsequent waiver analysis explains why Blake could not obtain that remedy.

Deutsche Bank Natl. Trust Co. v Medford, 234 AD3d 669, 671

This authority reinforces that participation on the merits demonstrates submission to personal jurisdiction. It supports applying the conduct-based waiver principle when reviewing Blake’s later attempt to vacate her default.

E. Remaining contentions

Newlands Asset Holding Trust v Vasquez, 218 AD3d 786, 786

The court cites this decision when stating that the remaining contentions were either meritless or unnecessary to reach. Its role is limited to that concluding disposition; it does not supply an additional articulated rule concerning service, fraud, or FAPA.

6. Potential Impact and Limits

For defendants: The decision underscores the need to address service and personal jurisdiction before litigating the merits or requesting affirmative relief. The danger of waiver persists even after an initial default and even when the immediate proceeding concerns restoration rather than the underlying foreclosure claim.

For plaintiffs: A defendant’s conduct may defeat later service objections without requiring a determination that the original service was proper. The relevant inquiry includes what relief the defendant requested and whether jurisdictional objections were raised at that time.

For renewal applications: Identifying a legislative change is insufficient unless that change affects the determination under challenge. The opinion illustrates this requirement in the FAPA context without establishing a general exemption from FAPA for restored actions.

For fraud-based vacatur: Courts will distinguish an allegation of procedural impropriety from proof that deception actually led a defendant not to defend. The required connection cannot be assumed.

The decision’s reach remains procedural. It does not announce a new general standard for vacating abandonment dismissals under CPLR 3215(c), establish the validity of every attempted service, or decide every possible defense to foreclosure. Nor does its affirmance of a default judgment and order of reference itself constitute a final judgment directing sale.

7. Complex Concepts Simplified

Personal jurisdiction

The court’s authority over a particular person. Unlike subject-matter jurisdiction, this protection can be relinquished through consent or conduct.

Waiver

Losing a legal objection by failing to assert it properly or by acting inconsistently with it. Here, requesting relief without challenging jurisdiction constituted waiver.

In personam jurisdiction

Another term for personal jurisdiction: authority to bind the particular defendant.

Sua sponte

Action taken by the court on its own initiative. The 2017 abandonment dismissal was issued this way.

Reargument and renewal

Reargument asks the court to reconsider an asserted mistake in its earlier decision. Renewal asks for reconsideration based on qualifying new material or a relevant change in law. Here, denial of reargument was not appealable; denial of renewal was reviewed and affirmed.

Extrinsic fraud

In this context, deception that causes a party to believe defending the lawsuit is unnecessary, thereby interfering with participation.

Order of reference

An order assigning specified foreclosure-related tasks to a referee, commonly including calculation of the amount due. It is not itself a final foreclosure sale order.

Notice of entry

Formal notification that an order has been entered. The opinion specifically notes the delay between the 2017 dismissal and service of that order with notice of entry in July 2021.

8. Conclusion

LaSalle Bank Natl. Assn. v Blake demonstrates that procedural participation can have decisive jurisdictional consequences. By contesting restoration and seeking affirmative relief without preserving objections to jurisdiction or timely service, Blake waived those defenses and could not later revive them through CPLR 5015(a)(4).

The accompanying rulings reinforce two narrower principles: a statutory change must affect the challenged determination to justify renewal, and extrinsic fraud requires proof that deception discouraged a defense. Together, these holdings emphasize timely objections, careful motion practice, and proof tailored to the specific ground for relief.