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Mississippi Appeals Court Reversal “Service of Process Fail, Default Judgment Void” | TURNER v. DEUTSCHE BANK

Mississippi Appeals Court Reversal “Service of Process Fail, Default Judgment Void” | TURNER v. DEUTSCHE BANK


3 We note that Turner’s argument that Deutsche Bank possessed unclean hands is an equitable defense to the merits of this lawsuit. This is an issue for the chancery court to consider on remand.

ANGELA L. TURNER

v.

DEUTSCHE BANK NATIONAL TRUST
COMPANY

Excerpts:

¶1. Deutsche Bank National Trust Company initiated a foreclosure action in the Warren County Chancery Court and attempted to serve Angela Turner by publication. But before doing so, it neither certified Turner was a non-resident of Mississippi nor alleged she could not be located in the state after a diligent inquiry. Because we find service of process did not strictly comply with the governing rules, we reverse the chancellor’s refusal to set aside the default judgment she entered on behalf of Deutsche Bank when Turner did not respond. We remand the case for further proceedings.

[…]

¶11. Although Deutsche Bank published a summons in the newspaper for three consecutive weeks and filed proof of the publication, Deutsche Bank did not comply with Rule 4(c)(4)(A). It is undisputed that Deutsche Bank never filed a sworn petition or affidavit attesting that Turner was a nonresident or could not be found in Mississippi after a diligent inquiry. Therefore, it follows that Deutsche Bank did not comply with any of the remaining requirements for information that must be included in the petition or affidavit.

¶12. “The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (16) (Miss. Ct. App. 2002) (internal citation omitted). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So. 2d at 1257 (33).

[…]

¶20. Because service of process in this case failed to comply with Rule 4(c), we find the default judgment entered against Turner is void. Caldwell, 533 So. 2d at 417-18 (finding judgment void for defective process by publication). Thus, the chancery court erred in refusing to set the void judgment aside under Rule 60(b). We reverse and remand for further proceedings in which Deutsche Bank will have the opportunity to serve Turner with process.3

[…]

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NJ Appellate Div. Denies U.S. BANK “Vacate Default Judgment, Foreclosing Interest of MERS in Residential Realty” | WACHOVIA BANK v WRIGHT

NJ Appellate Div. Denies U.S. BANK “Vacate Default Judgment, Foreclosing Interest of MERS in Residential Realty” | WACHOVIA BANK v WRIGHT


SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1422-09T2

WACHOVIA BANK, N.A.,
Plaintiff-Respondent,

v.

GREGORY WRIGHT a/k/a
GREG WRIGHT, MRS. GREGORY
WRIGHT
, his wife, and
LAKES AT LARCHMONT
CONDOMINIUM ASSOCIATION
,
Defendants,
and
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC
.,
Defendant-Appellant.
_______________________________

EXCERPT:

PER CURIAM

U.S. Bank National Association (US Bank), as successor in interest to defendant Mortgage Electronic Registration Systems, Inc. (MERS), appeals from a Chancery Division order denying its request to vacate the default judgment against it and foreclosing the interest of MERS in residential realty.1 We affirm.

These facts are taken from the motion record. Defendant Gregory Wright purchased real property on Albridge Way in Mt. Laurel Township (the subject realty) on September 2, 2003. On December 2, 2005, Wright contracted with JP Morgan Chase, N.A. (Chase) for a mortgage and a line of credit secured by a second mortgage on the subject realty. On August 9, 2006, Wright refinanced the Chase debts and withdrew additional equitable value from the realty. He borrowed $210,000 from MERS through its agent, Accredited Home Lenders, Inc. (AHL). Inexplicably, the MERS mortgage was not recorded for over a year, until September 17, 2007.

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[ipaper docId=55377966 access_key=key-1qw2p4hv6ghvp2jsvhr7 height=600 width=600 /]

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