Consumer gets jurisdiction hearing by denying specific facts in affidavit of service

Today's New York Law Journal case, Chase Home Financing, LLC v, Adetula, emphasizes the importance of asserting -- without waiving -- your defense of lack of personal jurisdiction due to improper service.

The defendant was sued in a foreclosure action and had failed answer the complaint. Before Chase could obtain its default judgment pursuant to motion, the defendant retained counsel who then served an answer that was rejected by Chase. The lawyer cross-moved to vacate her default under CPLR § 5015, to extend her time to answer under CPLR § 2004, and to compel acceptance of her answer under CPLR § 3012(d).

At issue was whether or not the defendant "waived" her personal jurisdiction defense by appearing at a court-imposed settlement conference without asserting that defense. The judge held that she never formally appeared under CPLR § 320, which requires service of an answer, notice of appearance, or a motion to constitute a formal appearance. Although parties can appear "informally" by actively litigating the merits of an issue without raising the issue of jurisdiction, Justice Markey of the Supreme Court, Queens County, ruled that such wasn't the case here. The defendant's answer was rejected, and furthermore, her appearance at a settlement conference did not amount to "actively litigating" any issues in her case.

As such, Justice Markey considered the factual rebuttals to Chase's affidavit of service. The defendant attacked the alleged recipient of her summons and complaint. Chase's process server claimed to have personally delivered the papers to a "JOHN OTTO COUSIN." The defendant had no such cousin. The defendant had no aunts or uncles either. Her only co-tenant was a female, Elaine Perry, who resided upstairs in her house. This discrepancy alone, introduced by the the defendant' affidavit alone, was enough to win a traverse hearing to try the issue of proper service.

The lesson here is to quickly examine the affidavit of service, and move to dismiss the case if the affidavit misrepresents any information. In my practice, I see more questionable -- if not falsified -- affidavits then I'd like to convey. It's a serious offense, perjury actually, and it hurts consumers while deceiving the courts.

Consumer debtors are routinely taken advantage of by falsified affidavits of service, which result in default judgments and seized assets. It nearly guarantees deprivation of personal property. It also violates consumer laws that have privates causes of action. This means that I could recover money for you regardless of the legitimacy of the underlying debt at issue.

If you've been sued for credit card debt, loan debt, or any debt, call me to ascertain your defenses and potential counterclaims for unfair litigation practices. Have you received a summons and complaint? Has a mysterious creditor or judgment appeared on your credit report? Does your name appear in court records? Are your wages being garnished? Has your bank account been frozen?

If you've received contact, in any form, from any of the below collection law firms, contact me right away. You need to raise important city, state, and federal defenses:

Cohen & Slamowitz, LLP, Mel S. Harris Associates, LLC, Wolpoff & Abramson, LLP, Rubin & Rothman, LLC, Eltman, Eltman & Cooper, P.C., Mullooly, Jeffrey, Rooney & Flynn, LLP, Forster & Garbus, LLP, Malen & Associates, P.C., Pressler and Pressler, LLP [I make no particular representations about these law firms other than their status as consumer debt collectors].

Categories: Debt Defense
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