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Civil Procedure

NY Judge Nixes Bank’s Foreclosure Judgment Because Process Server Didn’t Keep Records

Posted Jan 12, 2012 5:02 PM CDT
By Martha Neil

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Opening a door to a potential defense that apparently has largely or entirely gone unnoticed in mortgage foreclosure cases, a New York judge last month overturned a bank judgment because a process server didn't keep records required by law.

A former police officer working for A&J Process Service admitted to state Supreme Court Justice F. Dana Winslow that he didn't keep records either in the Nassau County case of Soledad Murillo or in thousands of others over the past six years, Reuters reports.

Failure by a process server to keep records concerning efforts to serve a complaint on the defendant homeowner violates New York's general business law, the judge held. A lawyer for the once-prolific Steven J. Baum foreclosure law firm, which had a local office on the same floor of the same building as A&J, argued unsuccessfully that a process server's failure to keep records wasn't a reason to overturn a foreclosure judgment.

"The duty to keep comprehensive records may have been unnoticed, or underestimated, by litigants and the courts," the judge said in a Dec. 22 written opinion. "Past practice, however, cannot be the motivating force for future conduct and determinations."

Related coverage:

ABAJournal.com: "Federal Judge OKs RICO Conspiracy Class Action Against Law Firm in ‘Sewer Service’ Case"

ABAJournal.com: "Baum Foreclosure Firm to Close After Fannie and Freddie Pull Files, Plans Mass Layoffs"

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