Key Takeaway
Court rules no traverse hearing needed when plaintiff fails to oppose defendant's motion to vacate service, potentially resulting in statute of limitations defense.
In foreclosure proceedings, proper service of process is fundamental to establishing a court’s jurisdiction over defendants. When service is challenged, courts must carefully evaluate whether the evidence presented creates genuine questions requiring a hearing. The balance between protecting defendants’ due process rights and preventing frivolous challenges to service makes these determinations particularly significant.
The case of Wells Fargo Bank, N.A. v DeCesare illustrates an important procedural principle: when a defendant presents sufficient evidence to challenge service and the plaintiff chooses not to respond, courts should not require lengthy hearings to resolve what becomes an unopposed motion.
Jason Tenenbaum’s Analysis:
Wells Fargo Bank, N.A. v DeCesare, 2017 NY Slip Op 01592 (2d Dept. 2017)
“The detailed and specific evidence submitted by DeCesare in support of her motion was sufficient to rebut the allegations contained in the process server’s affidavit of service, thereby shifting the burden of proof to the plaintiff to establish jurisdiction at a hearing by a preponderance of the evidence (see Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 344). However, because the plaintiff, which was well aware of the existence of the motion, elected not to file any opposition papers, no hearing was required, and the Supreme Court should have granted DeCesare’s unopposed motion and vacated the order of reference (see Walter v Jones, Sledzik, Garneau & Nardone, LLP, 67 AD3d 671).”
The added bonus is that the statute of limitations has probably run and now the Defendant has a house free and clear.
Key Takeaway
When defendants present detailed evidence challenging service of process, they shift the burden to plaintiffs to prove proper service. However, if plaintiffs fail to oppose such motions, courts should grant the unopposed applications without requiring hearings. This strategic advantage can be significant, as successful challenges may trigger statute of limitations defenses that effectively end the case in the defendant’s favor.
