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ka

In a couple of previous threads, NY foreclosure defendant(s) facing a foreclosure suit in a probate setting inquired about their rights.

 

A decision by the NY Supreme Court Appellate Division, 4th Department, handed down yesterday (Friday, March 16, 2012, clarifies that the law in NY, as everywhere, is rather precisely as explained by several Forum participants.

 

The case is:

 

Wendover Fin. Servs. v Ridgeway, 2012 NY Slip Op 01884 (NY App. 4th Dept. 2012)
http://www.nycourts.gov/reporter/3dseries/2012/2012_01884.htm

 

Plaintiff Wendover brought suit against Amelia C. DONVITO, then already deceased.  Wendover later sought to amend its complaint to add the name of Jo-Ann RIDGEWAY, who had succeeded to DONVITO's interests as the executrix of her estate.   

 

The appellate court found that the suit originally brought against a dead person was a NULLITY and that the suit could NOT therefore be amended to name the executrix or heir:

"We therefore conclude that "the action [against decedent] from its inception was a nullity [inasmuch as] it is well established that the dead cannot be sued" (Marte v Graber, 58 AD3d 1, 3; see Jordan v City of New York, 23 AD3d 436, 437; see also Arbelaez v Chun Kuei Wu, 18 AD3d 583).  Further, we conclude that the caption may not be properly amended pursuant to CPLR 305 (c).  "That provision is generally used to correct an irregularity, for example where a plaintiff is made aware of a mistake in the defendant's name or the wrong name or wrong form is used" (Marte, 58 AD3d at 4).  In the order appointing a referee, the court amended the caption of this [*2]action by "striking the name of the defendant AMELIA DONVITO A/K/A AMELIA C. DONVITO . . . and substituting in place thereof JO-ANN RIDGEWAY AS HEIR TO THE ESTATE OF AMELIA DONVITO A/K/A AMELIA C. DONVITO . . . ."  Here, however, decedent was never a party to the action, and thus there was no party for whom substitution could be effected pursuant to CPLR 1015 (a).

 

We reject plaintiff's contention that it obtained personal jurisdiction over Ridgeway by serving her in her capacity as an alleged heir of decedent.  Although the captions in the summons and complaint included " John Does' and Jane Does,' " those unknown defendants were described in the complaint as tenants or occupants of the property or those claiming a lien against the property.  Ridgeway does not fit within either of those categories in any capacity. In order to name unknown parties pursuant to CPLR 1024, the complaint must adequately describe the intended parties such that, " from the description in the complaint,' " they would have known that they were intended defendants (Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482; see generally Olmsted v Pizza Hut of Am., Inc., 28 AD3d 855, 856).  Here, inasmuch as plaintiff named both decedent and the "Doe" defendants in the summons and complaint and the complaint fails to mention decedent's death, it cannot be said that plaintiff intended to describe the "Doe" defendants to include decedent's heirs, nor did plaintiff adequately do so.  We further conclude that, because Ridgeway, as executrix of decedent's estate, was not properly made a party to the action, the complaint fails to assert a viable cause of action against a properly named party.  "Perhaps, had [plaintiff] abandoned [its] initial action, and properly filed a summons and complaint by purchasing a new index number and naming [Ridgeway], the personal representative of [decedent], as defendant, the matter before us would not be the nullity it is" (Marte, 58 AD3d at 5). "

I would recommend that those interested in the topic of foreclosure in a probate setting carefully read this decision and also compare the suggestions and analysis by several Forum seniors over the last couple of months in other threads.

 

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ka

See the discussion arising out of a current New York foreclosure in a probate setting within this thread:

 

"How does executor defend house of estate in foreclosure?"

http://ssgoldstar.websitetoolbox.com/post/How-does-executor-defend-house-of-estate-in-foreclosure-5663124

 

"Defendant not recognized as owner, borrower, or mortgagor?"

http://ssgoldstar.websitetoolbox.com/post/Defendant-not-recognized-as-owner-borrower-or-mortgagor-5659418

 

See also:

 

"A Quick Note About the Limits of Representation Pro and UPL"

http://ssgoldstar.websitetoolbox.com/post/A-Quick-Note-About-the-Limits-of-Representation-Pro-and-UPL-5660873

 

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ka

From a prior post:

 

Quote:

Your post also has served as a bit of inspiration and it seems to me that both John Martin and Steve Anderson are asking the wrong questions and were fretting about the wrong issues at the outset.

 

Moreover, it seems that both have already probably eviscerated their single best defensive avenue by failing to educate themselves and unnecessarily waiting to develop a thoughtful and coherent defensive strategy.

 

Your post t, reminds us that most mortgage lenders are totally ignorant of both the fact of a decedent's death and the nature of a decedent's estate until informed of this by the decedent's family.

 

This serves a reminder of yet another of Mr. Roper's really excellent suggestions and one well known to lawyers, which is when the other side is IGNORANT of critical details, the best thing to do is usually KEEP YOUR MOUTH SHUT.

 

Because Steve and John Martin have proceeded without consulting an attorney, they already made probably the single worst mistake. That would be filing a probate action AT ALL.

 

In non-judicial foreclosure states, opening up a probate proceeding can be an effective strategy to slow down a non-judicial foreclosure. By contrast, opening a probate proceeding in a judicial foreclosure state would seem to me to be the surest way to speed foreclosure along!

  

 

 

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As t explains, absent a right of survivorship within the deed or another single clearly identifiable heir (e.g. widow or widower), the identity of the owners of the subject property is usually legally unclear UNTIL the family files for probate. The creditors typically stand aside and WAIT in a judicial foreclosure state to learn the identity of the owners through the probate proceeding.

 

Moreover, UNTIL someone TELLS the lender that the decedent is DEAD, this is UNKNOWN to the lender.

 

Someone like Steve Anderson or John Martin probably created an initial problem for themselves because of their eagerness to inform the lender of the death!

 

As a preliminary matter, IF there was any substantial equity in the property, either made a very grave mistake in allowing the loan to fall into default.

 

Despite all of the misinformation being put out by the debt elimination scammers, anyone with equity who stops paying their mortgage voluntarily when they have the financial means to make the payments needs to have their head examined. As Mr. Roper constantly reminded us, this is ALWAYS a mistake!

 

So let us suppose (a) that the subject property is deeply under water and that it is in the interest of the heirs to draw out the foreclosure matter and (b) that there is no other estate property subject to being taken in a foreclosure action in respect of the deficiency.

 

Under these circumstances, the single BEST strategy on the part of the heirs is (a) to NOT inform the Lender of the decedent's death and (b) NOT file the Will for probate. The Will would be simply misplaced!

 

Why is this a better strategy? Well the answer would be really obvious to any first year law student of ordinary intelligence, though it would certainly elude Steve and John, since they have not bothered to get legal counsel.

 

IF THE LENDER DOESN'T KNOW THAT THE BORROWER IS DEAD, THE LENDER WILL FILE THE FORECLOSURE ACTION AGAINST THE DECEDENT, RATHER THAN THE ESTATE!

 

Now Mr. Roper has warned us before repeatedly that the goal in a foreclosure defense is NOT necessarily leading the plaintiff and the court to the TRUTH! This is not to say that the defendant ought to mislead or deceive. Rather it is just that there is no duty to inform or clarify to HELP THE OTHER SIDE. You can certainly be ASSURED that the plaintiff's foreclosure mill lawyers are not wringing their hands wondering about ways to HELP THE BORROWER by informing the borrower about weaknesses or defects in the defensive case.

 

SO WHY DO HEIRS AND DEFENDANTS SUCH AS STEVE AND JOHN FEEL THAT THEY NEED TO HELP THE PLAINTIFF OUT BY COACHING AND ENCOURAGING THE VERY ENTITIES THAT SEEK TO WIN A LAW SUIT?

 

I always find it baffling that defendants are always SO EAGER TO HELP THE PLAINTIFF OUT.

 

So what would happen if the plaintiff brought suit against the decedent rather than the estate?

 

Well, the very first thing that would happen would be that the plaintiff will arrange service of summons, citation or other official process. Some sort of process server will come around to the decedent's last known address.

 

Of course, again, the ever helpful Steve or John might then blurt out to the process server that the Decedent is deceased. A more thoughtful and clever defendant might be somewhat more discrete.

 

A better response might be "Mary Anderson is not here!" (supposing that Steve's mother is named "Mary"). Some process servers would probably ask when they should come back or when Mary is expected to return. Steve or John might take this opportunity to blurt out, "She is NEVER coming back! She is DEAD! Tell your client that we want to help the bank win its case as quickly as possible". A more discrete response might be to simply say, "I do not know when to expect her".

 

If Mary Anderson is buried in an adjacent state, or perhaps buried next to her late husband in Florida, one could tell the process server that "Mary Anderson is in West Palm Beach".

 

Generally, it would be somewhat better to avoid answering the door when the process server comes around. Of course, that presents some risk that the process server will make some inquiries of the neighbors.

 

Ideally, the named executor and heir would avoid accepting service on Mary Anderson's behalf. It would be better is another member of the family or properly coached member of the household or servant were to be the one interacting.

 

If you are really lucky, the process server will be a dishonest and disreputable sewer service sleazebag and will then simply fill out an affidavit claiming to have served Mary Anderson some months after Mary's death. If not as lucky, the process server will file an affidavit of service showing that they left a copy of the summons with an adult person at Mary's last known address.

 

WHY go to all of this trouble? Well it is axiomatic that a law suit against a dead person is a nullity. As far as I know, this is true in all fifty states.

 

 

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My point here is that telling the plaintiff that the borrower is dead, is simply another way of taking the plaintiff to school (to use Mr. Roper's words). It is UNCLEAR TO ME WHY defendants are always trying to take a plaintiff to school.

 

When the average time it takes for a plaintiff to litigate a case to foreclosure in New York is now three years in contested cases, I would think it to be good fun to let them litigate and get a judgment against a dead person! The named executor and/or heirs would want to steer as clear of these proceedings as possible.

 

 

See:  http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1271812474&postcount=5

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Unregistered3
Thank you, ka, for posting this decision! 

I have a question about an ongoing suit filed against a deceased borrower, and would like to know if certain Court action constitutes abuse of discretion. 

The plaintiff's counsel filed suit against the deceased borrower, who owned the property in joint tenancy with survivorship rights. The borrower died long before the suit was filed, but the plaintiff's counsel sued him without mentioning his death and sued the surviving tenant in rem. Much later, plaintiff's counsel moved to add parties, and the Court allowed the change. A lazy and/or incompetent (and fired) lawyer failed to object to any of this for more than 18 months.

As the decision here indicates, allowing the plaintiff to add parties has no rational basis in law, so would the Court's allowing parties added constitute abuse of discretion? If so, is it too late to do anything about it? If not, what should be done now?

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ka

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Thank you, ka, for posting this decision!

 
I have a question about an ongoing suit filed against a deceased borrower, and would like to know if certain Court action constitutes abuse of discretion.
 
The plaintiff's counsel filed suit against the deceased borrower, who owned the property in joint tenancy with survivorship rights. The borrower died long before the suit was filed, but the plaintiff's counsel sued him without mentioning his death and sued the surviving tenant in rem. Much later, plaintiff's counsel moved to add parties, and the Court allowed the change. A lazy and/or incompetent (and fired) lawyer failed to object to any of this for more than 18 months.
 
As the decision here indicates, allowing the plaintiff to add parties has no rational basis in law, so would the Court's allowing parties added constitute abuse of discretion? If so, is it too late to do anything about it? If not, what should be done now?
 
 
Unregistered3
 
Probably depends upon the jurisdiction.  Also, there might be a different result where there are multiple parties.
 
For example, suppose that A sues B on a suit with two claims.  Suppose that A lacks standing at inception as to either claim.  In this case, in most places, the suit would probably have to be dismissed due to lack of standing, a matter of subject matter jurisdiction. 
 
But suppose that A sues B and has standing on claim 1, but no standing on claim 2.  Further suppose that the claims are inter-related.
 
Since A has standing on claim 1, the suit probably isn't going to get dismissed due to standing.  If A later obtains the rights to maintain an action on claim 2, can the second claim be added?
 
Bear in mind that in many places pleadings can be freely amended to add parties or claims.
 
Returning to your question, I think the situation might be somewhat analogous.
 
If A sues B and B is already dead, then in many places the suit is considered to be a nullity.  The court cannot obtain personal jurisdiction over a dead man.  Since the court lacks jurisdiction, the suit must be dismissed.  No amendment is possible because the court has no jurisdiction to do anything other than to dismiss.
 
But suppose that A sues B and C.  B is already dead and C is not.  C is properly served.  All other things being equal, the court would have jurisdiction to hear a suit over C.  The claim against B would still have to be dismissed.  But to the extent that A has rights under the Rules to amend the pleadings to add parties, what would preclude A from later adding B's heirs, executor, administrator, etc.?
 
In the case of a suit solely against a dead person, the suit is probably a nullity and the court NEVER has jurisdiction to do anything except to dismiss the case.  When a dead person is merely one of several parties, the court might still have jurisdiction to hear the matter, then others could be later added.
 
As I said at the outset, this is an UN-RESEARCHED response and merely presents one way of thinking about the problem and my intuition.  I think that you need to research the hell out of this, realizing and expecting that there MIGHT be different answers in different places, both arising out of statutory and case law considerations, as well as distinctions in rules between various jurisdictions. 
 
The bottom line is that I am not persuaded that the court's ruling is erroneous.  It might be.  It might not be.  Depends upon more specific facts and cases unique to your jurisdiction!
 
Best of luck!  
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