No sooner does our most recent alert comment upon the dangers to foreclosing lenders having to publish the summons then a case turns up highlighting yet another problem: the mandate for first publication within thirty days of granting the publication order. [NYCTL -1 Trust v. Cruz, 15 Misc.3d 1144(A), 841 N.Y.S.2d 821 (2007)]
This sounds like minutia for and a burden upon lenders’ and servicers’ counsel. It is. But when a foreclosure action is delayed (because of publication issues) or when counsel needs more information about borrowers’ whereabouts, why it is all so meaningful is worth noting.
Turning to the basic concern, when a defendant in a foreclosure action cannot be located for the purpose of process service – and this tends to have more significance where the borrower is concerned – the foreclosing party is banished to the time consuming and expensive process of publishing the summons. (This was the subject of our most recent alert as mentioned earlier.)
One of the aspects of this odious process is a New York practice requirement that the first publication must be made within thirty days of the granting of the order which authorizes the publication. While this would seem to be some kind of standard and ultimately innocuous mechanical procedure, it can present genuine problems. The foreclosing party’s counsel would not volitionally delay placing the publication, but the order has to be in hand and that is where the problem lies.
When a judge signs an order it wends its way through the courts to the office of the clerk where it is entered. But particularly downstate where there are literally thousands of orders in the process, the process of entry, and then making the order physically available to counsel, can consume up to a period of many weeks – or more. If the order is unreachable for a period of time which prohibits a first publication within thirty days – and it happens – then the foreclosing plaintiff must first apply anew for an order with all the waste of time that portends.
Given these actualities, might a court solve the problem by declaring a first publication later than thirty days to be valid nonetheless? Case law, as stated in the mentioned decision, confirms that failing to publish within the thirty day mandated period is a jurisdictional defect. That is to say, it is fatal. A court cannot treat it as a mere irregularity and cannot overlook the apparently late publication. In the noted case, counsel advised the court that it had difficulty in obtaining the order but that couldn’t save the day because of the status of the law.
So, chalk this up as another threatening issue involving the unpalatable need to publish a summons in a foreclosure action.
Mr. Bergman, author of the four-volume treatise, Bergman on New York Mortgage Foreclosures, LexisNexis Matthew Bender (rev. 2017), is a partner with Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. in Garden City, New York. He is also a member of the USFN, The American College of Real Estate Lawyers, The American College of Mortgage Attorneys, an adviser to the New York Times on foreclosure issues and writes a regular servicing column for the New York Law Journal. He is AV rated by Martindale-Hubbell, his biography appears in Who’s Who In American Law and he has been for years listed in Best Lawyers In America and New York Super Lawyers.