Skip to main content

In the mail yesterday I received a notice of entry of judgment of foreclosure and sale.

Buffalo, NY |

If I read correctly under NY state law the defendent must be served by a process server and it they can't locate the defendent they are suppose to tape the papers to the premises. Am i correct and can I pursue this further?

Attorney Answers 3


  1. Your local jurisdiction may treat the matter differently, but in Florida, a foreclosure plaintiff that can not personally serve the named defendant can perform what is called "constructive service by publication" to obtain "in rem" jurisdiction. In other words, if the plaintiff properly publishes the notice of filing foreclosure in a local newspaper, it can proceed with the foreclosure case but only to recover the title to the property, not to enforce a future deficiency judgment against the defendant that was never served.

    Any information submitted by this attorney on Avvo.com is not intended to be communicated as legal advice. All information provided is general and intended for information purposes only. For detailed legal advice regarding your loan modification, foreclosure, and/or bankruptcy needs, please schedule an appointment with the attorney.


  2. Dear am I correct?

    Once a judgment is entered, no one will know that a default judgment arose because you were not properly served with the summons and complaint. While "proof" of service must be filed before a party may be found to default, the affidavit of the process server may contain false statements.

    Now that you know a judgment exists, if your default was not intentional, and if you intend to do something to protect your rights, you must travel to the court that entered the judgment, review the court file and in particular the affidavits of service, and take the steps needed to vacate the judgment.

    You will find out more when you go to court but you can start here:

    http://www.nedap.org/hotline/vacating.html

    http://www.nycourts.gov/attorneys/volunteer/emeritus/rsaa/organizations/WNYLC.pdf

    Good luck.

    The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.


  3. If u are asking whether a technicality re service will save you the answer is no. It is way too late to raise that issue now. It must be raised as a defense early in the case. Your case is basically over.

    You could fight back and try to get it reversed now, but it sounds like u probably defaulted throughout the process. Any chance u would have is a big big big longshot and would take experienced counsel at considerable cost to u to get a favorable result, if thats even possible.

    If am missing something here about your case, and you do need counsel, feel free to call my Buffalo office to speak with me directly.