Foreclosure Dismissed: The Impact of Process Server Standards in Nassau County
Background of the Case: U.S. Bank Nat. Assoc. v. Murillo
In a significant ruling, the Supreme Court of Nassau County dismissed a foreclosure action in the case of U.S. Bank Nat. Assoc. v. Murillo. The dismissal was based on a lack of jurisdiction, a decision reached after a traverse hearing revealed a critical lapse: the process server, crucial to the case, had no records to present.
Nassau County's Process Server Standards Challenged
Nassau County, unlike other regions, does not require process servers to be licensed. During the traverse hearing, the plaintiff's counsel argued that this exemption should absolve the process server from adhering to the standards typically expected of licensed servers. However, the court found this argument lacking.
Court's Application of New York General Business Law The court referred to New York General Business Law (GBL) Article 8 [1], which applies to all process servers irrespective of their licensing status. The law mandates strict record-keeping, enforced by the attorney general, with provisions for civil penalties in cases of non-compliance.
Precedent and Policy Considerations
The court drew upon the precedent set by First Commercial Bank of Memphis v Ndiaye, where a process server's failure to maintain proper records resulted in case dismissal. The Ndiaye ruling highlighted the necessity of stringent process-serving requirements to prevent "sewer service" abuses and ensure record reliability.
The Decision in the Present Case
In U.S. Bank Nat. Assoc. v. Murillo, the absence of any records by the process server led the court to a more decisive dismissal than in Ndiaye. The court emphasized the importance of record-keeping in upholding legal standards, especially in the context of foreclosure actions. Accordingly, "this Court, recognizing the sound policy of preventing questionable service practices, finds that the process server, Mr. Cardi, was required to keep records in accordance with GBL § 89-u, and that his failure to produce such records at the traverse hearing, as required by 22 NYCRR § 208.29[2], is unlawful and constitutes grounds for dismissal for lack of jurisdiction."
Evolving Standards for Process Server Credibility
The court noted a shift in judicial perspective, moving away from presuming process server credibility to demanding tangible proof of service. This change is particularly pertinent in the current economic climate, underscoring the need for verifiable and reliable service documentation.
Conclusion: Emphasizing Reliable Service in Legal Proceedings This ruling marks a significant stand on the necessity of strict adherence to process-serving laws, even in counties without licensing requirements. It reinforces the judiciary's commitment to ensuring fairness and legality in legal proceedings.
[1] Under GBL Article 8, a process server is defined as a person, other than an attorney or a party to an action acting on his own behalf who (a) derives income from the service of papers in an action; or (b) has effected service in five or more actions or proceedings in the twelve month period immediately preceding the service in question. GBL § 89-t
[2] 22 NYCRR § 208.29 Traverse hearings. Whenever the court has scheduled a hearing to determine whether process was served validly and timely upon a party, and where a process server will testify as to the service, the process sever shall be required to bring to the hearing all records in the possession of the process server relating to the matter at issue. Where the process server is licensed, he or she shall also bring the license to the court.