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IN THIS FORECLOSURE ACTION, DEFENDANT DID NOT WAIVE THE LACK OF JURISDICTION DEFENSE BY PARTICIPATING IN THE MANDATORY SETTLEMENT CONFERENCE AND WAS ENTITLED TO A HEARING ON WHETHER SHE WAS PROPERLY SERVED WITH THE SUMMONS AND COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this foreclosure action did not waive the lack of jurisdiction defense and demonstrated entitlement to a hearing on whether she was properly served:

… [B]y participating in the mandatory settlement foreclosure conference and subsequently contacting the plaintiff for settlement purposes, the defendant did not demonstrate a clear intent to participate in the lawsuit on the merits, and therefore she did not formally or informally appear in the action … . …

… [D]efendant sufficiently rebutted the presumption of proper service. The defendant submitted her own sufficiently factually detailed sworn affidavit in which she, inter alia, denied receipt of service, denied residing at the subject address at the time service allegedly was made, and averred that she had not lived there since September 2011 and that she had moved to Georgia in November 2013. Under these circumstances, a hearing to determine whether the defendant was properly served pursuant to CPLR 308(2) was required … . Nationstar Mtge., LLC v Stroman, 2022 NY Slip Op 00869, Second Dept 2-9-22

 

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