Countrywide Home Loans Servicing, v. Albert

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Docket Number

No. 2009-07700.

Attorney(S)

Linda Albert, Mahopac, N.Y., appellant pro se. Steven J. Baum, P.C., Buffalo, N.Y. (Timothy P. Seibold of counsel), for respondent.

Judges

Cheryl E. Chambers
Thomas A. Dickerson
Mark C. Dillon

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Smart Summary

Factual and Procedural Background

This appeal arises from an action to foreclose a mortgage in which the defendant, Linda Albert, sought to vacate a judgment of foreclosure and sale dated October 10, 2008. The Supreme Court, Putnam County, denied her motion to vacate that judgment. The defendant appeals that portion of the order dated April 15, 2009, which denied her motion.

Legal Issues Presented

Whether the Supreme Court had personal jurisdiction over the defendant given the appearance of her attorney and the defendant's failure to object to jurisdiction.
Whether the defendant was properly served with process in accordance with statutory requirements.
Whether the Supreme Court properly declined to consider the defendant’s late reply papers in support of her motion to vacate the judgment.
Whether the defendant waived the defense of lack of standing by failing to assert it in a timely manner.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ohio Sav. Bank v Munsey, 34 AD3d 659, 659	Appearance by defendant or attorney equates to personal service, conferring personal jurisdiction unless timely objection is made.	Used to determine that the defendant waived personal jurisdiction objections by her attorney's appearance and failure to object timely.
Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 140	Appearance by attorney constitutes appearance by party for jurisdictional purposes.	Supported the conclusion that the defendant's attorney's appearance waived jurisdictional defenses.
National Loan Invs., L.P. v Piscitello, 21 AD3d 537, 537-538	Statutory authority confirming appearance by attorney confers jurisdiction.	Reinforced the waiver of jurisdictional defenses due to attorney's appearance.
Estate of Waterman v Jones, 46 AD3d 63, 65	Service of process must strictly comply with statutory methods under CPLR 308.	Guided the court’s assessment of the adequacy of service on the defendant.
Macchia v Russo, 67 NY2d 592, 594	Strict compliance required for service of process.	Supported strict scrutiny of service in this case.
Dorfman v Leidner, 76 NY2d 956, 958	Reinforces strict compliance with service requirements.	Referenced in context of service adequacy.
Scarano v Scarano, 63 AD3d 716, 716	Process server's affidavit is prima facie evidence of proper service; defendant must rebut with specific facts.	Applied to conclude the defendant failed to rebut prima facie proof of proper service.
Simonds v Grobman, 277 AD2d 369, 370	Defendant’s sworn denial must include specific facts to rebut affidavit of service.	Used to evaluate the sufficiency of defendant’s denial of proper service.
City of New York v Miller, 72 AD3d 726, 727	Supports denial of evidentiary hearing when defendant fails to rebut affidavit of service.	Supported refusal to hold hearing on service validity.
Mosheyeva v Distefano, 288 AD2d 448, 449	Court discretion to decline consideration of late papers.	Supported the court’s refusal to consider late reply papers.
Romeo v Ben-Soph Food Corp., 146 AD2d 688, 690	Discretionary refusal of late submissions without excuse.	Reinforced the court's discretion in this procedural ruling.
HSBC Bank, USA v Dammond, 59 AD3d 679, 680	Failure to assert standing defense timely results in waiver.	Applied to find defendant waived standing defense.
Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242-245	Standing defense must be timely raised or is waived.	Supported waiver of standing defense by defendant.

Court's Reasoning and Analysis

The court first analyzed personal jurisdiction, concluding that the defendant waived any objection by virtue of her attorney’s appearance and failure to timely object to jurisdiction. The court then addressed service of process, finding the process server’s affidavit constituted prima facie evidence of proper service, which the defendant failed to rebut with specific facts, thus no evidentiary hearing was warranted. Regarding procedural compliance, the court found the defendant’s reply papers in support of her motion to vacate were untimely under CPLR 2214(b), and the court properly exercised discretion to decline their consideration due to lack of excuse for delay. Finally, the court held that the defendant waived the defense of lack of standing by failing to assert it in a timely pre-answer motion or answer, pursuant to CPLR 3211(e). The defendant’s other contentions were either not properly before the court or without merit.

Holding and Implications

The order of the Supreme Court, Putnam County, dated April 15, 2009, is affirmed insofar as appealed from, with costs.

The direct consequence of this decision is that the defendant’s motion to vacate the judgment of foreclosure and sale was denied, and the foreclosure judgment stands. No new legal precedent was established; the court applied established principles regarding waiver of jurisdictional defenses, proper service of process, procedural timing for submissions, and waiver of standing defenses.

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COUNTRYWIDE HOME LOANS SERVICING, LP, Respondent, v. LINDA ALBERT, Appellant, et al., Defendants

Ordered that the order is affirmed insofar as appealed from, with costs.

"`An appearance by a defendant in an action is deemed to be the equivalent of personal service of a summons upon him [or her], and therefore confers personal jurisdiction over him [or her], unless he [or she] asserts an objection to jurisdiction either by way of motion or in his [or her] answer`" ( Ohio Sav. Bank v Munsey, 34 AD3d 659, 659, quoting Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 140; see CPLR 320; National Loan Inus., L.P. v Piscitello, 21 AD3d 537, 537-538). "`By statute, a party may appear in an action by attorney (CPLR 321), and such an appearance constitutes an appearance by the party for purposes of conferring jurisdiction`" ( National Loan Invs., L.P. v Piscitello, 21 AD3d at 537-538,' quoting Skyline Agency v Coppotelli, Inc., 117 AD2d at 140). It is undisputed that the attorney formerly representing the defendant Linda Albert (hereinafter the defendant) filed a notice of appearance on her behalf in this action, and that neither the defendant nor her attorney moved to dismiss the complaint on the ground of lack of personal jurisdiction or asserted lack of personal jurisdiction in a responsive pleading ( see Ohio Sav. Bank v Munsey, 34 AD3d at 659). Accordingly, the defendant waived any claim that the Supreme Court lacked personal jurisdiction over her in this action ( id. at 659-660; see Matter of Woicik v Town of E. Hampton, 207 AD2d 356, 357). In any event, the defendant's claim that she was not properly served in this action is without merit. "Service of process must be made in strict compliance with statutory `methods for effecting personal service upon a natural person' pursuant to CPLR 308" ( Estate of Waterman v Jones, 46 AD3d 63, 65, quoting Macchia v Russo, 67 NY2d 592, 594; see Dorfman v Leidner, 76 NY2d 956, 958). "A process server's affidavit of service constitutes prima facie evidence of proper service" ( Scarano v Scarano, 63 AD3d 716, 716). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing ( see Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139), no hearing is required where the defendant fails to swear to `specific facts to rebut the statements in the process server's affidavits`" ( Scarano v Scarano, 63 AD3d at 716, quoting Simonds v Grobman, 277 AD2d 369, 370). Here, the defendant's claims were insufficient to rebut the prima facie proof of proper service pursuant to CPLR 308 (4) created by the process server's affidavit and to warrant a hearing to determine the validity of service of process ( see City of New York v Miller, 72 AD3d 726, 727; Scarano v Scarano, 63 AD3d at 716).

The Supreme Court properly declined to consider the reply papers submitted by the defendant in further support of her motion, inter alia, to vacate a judgment of foreclosure and sale dated October 10, 2008. Under the circumstances of this case, and based on demands set forth in the defendant's notice of motion, the defendant's reply papers were required to be submitted at least one day before the motion's return date ( see CPLR 2214 [b]). Moreover, inasmuch as consideration of these papers was a matter within the discretion of the court ( see CPLR 2214 [c]), the Supreme Court providently exercised its discretion in declining to consider them, as the defendant offered no excuse for her delay in submitting the papers ( cf. Mosheyeva v Distefano, 288 AD2d 448, 449 [20011; Romeo v Ben-Soph Food Corp., 146 AD2d 688, 690).

The defendant waived any argument that the plaintiff lacked standing to commence this action. Having failed to interpose an answer or file a pre-answer motion which asserted the defense of standing, the defendant waived that defense pursuant to CPLR 3211 (e) ( see HSBC Bank, USA v Dammond, 59 AD3d 679, 680; see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242-245).

The defendant's remaining contentions are either not properly before this Court or without merit.