Preview
FILED: KINGS COUNTY CLERK 03/27/2019 07:01 PM INDEX NO. 513958/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/27/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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Index No. 513958/2018
TD AUTO FINANCE LLC,
Plaintiff,
- against- AFFIRMATION IN SUPPORT OF
ORDER TO SHOW CAUSE TO
VACATE THE DEFAULT
JUDGMENT AND DISMISS THE
COMPLAINT
JAHQUEENA HAYNES A/K/A HAYNES JAHQUEENA,
Defendant.
..................................................................................................X
STATE OF NEW YORK )
COUNTY OF NEW YORK ) SS:
NAOMI YOUNG, ESQ., an attorney admitted to practice in the courts of the State of
New York, affirms under penalty of perjury that:
1. I am a Staff Attorney at the law firm Her Justice, Inc., and Co-Counsel with CAMBA
Legal Services for the Defendant, Jahqueena Haynes, and as such am fully familiar with all the facts,
circumstances, and proceedings herein.
Haynes'
2. I make this affirmation in support of Ms. Order to Show Cause to vacate the
default judgment and dismiss the complaint for lack of personal service pursuant to CPLR §§
5015(a)(4); or vacate and order a traverse hearing; or, in the alternative, for relief from judgment on
motion pursuant to CPLR § 5015(a)(1), and in the interest of justice.
3. Ms. Haynes has not made any other motion for relief in this case. This is the first time
that Ms. Haynes has moved to vacate the underlying judgment. She has not requested this or similar relief
in any prior motion or application in this case.
4. Ms. Haynes first learned of this default judgment after a legal consultation with Her
Justice for a divorce. It is our regular practice to assess divorces for potential financial issues, and as part
of this assessment to run a credit report and ask about potential marital debt. I asked Ms. Haynes whether
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she had received any legal documents in relation to an auto loan which I saw on her credit report, and she
recalled that she had received a large envelope from a law firm months earlier. I asked her to find this
envelope and show it to me if she could. After she had a chance to show it to me, I saw that it contained a
summons and complaint so I searched New York's e-filings and discovered the default judgment against
her. See Jahqueena Haynes Affidavit ¶ 31.
5. At the time that Ms. Haynes received the envelope, she had recently separated from her
abusive husband who had induced her to take out this auto loan and other debts. She glanced at the
contents of the envelope and set it aside to deal with later when she saw that it had to do with the car her
husband had insisted that she finance. See Jahqueena Haynes Affidavit ¶ 15. Ms. Haynes is a single
mother, works full time, and attends graduate school full time. See Jahqueena Haynes Affidavit ¶ 32.
Last summer, Ms. Haynes discovered that her husband had never paid several different bills which he had
promised to pay, and that the payments he had made on the car had bounced. See Jahqueena Haynes
Affidavit ¶¶ 9, 10.
6. Prior to speaking with me about the case, Ms. Haynes did not know that a judgment was
entered against her, nor that she had the right to challenge enforcement of the judgment. See Jahqueena
Haynes Affidavit ¶ 31.
7. Ms. Haynes, through her attorneys, now files the instant Order to Show Cause to vacate
the default judgment. Ms. Haynes brought this Order to Show Cause, through her attorneys, as soon as
she learned of the Default Judgment and was able to retain counsel.
8. The instant case is a consumer credit action initiated by TD Auto Finance LLC, a bank,
based on an alleged debt owed to Premier Ford NY Inc. and allegedly assigned to TD Auto Finance LLC.
See Exhibit A, Summons and Complaint. The case was filed by Deily & Glastetter, LLP, attorneys for
the Plaintiff.
9. On or about October 3, 2018, a default judgment was entered against Ms. Haynes in the
amount of $16,898.41. See Exhibit B, copy of Judgment.
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10. As stated in the accompanying Affidavit, Ms. Haynes was never properly
served in this
action. See Jahqueena Haynes Affidavit ¶ 3, 4, 5, 17, 26, 27.
11. This case presents an unmistakable instance of defective service. The attached Affidavits
of Ms. Haynes and of her demonstrate that service - as described in the process
mother, Wendy Haynes,
server's Affidavit - could not have occurred. See Exhibit Affidavit of 2018. Ms.
C, Service, July 17,
Haynes states that the process server never served her or anyone in her household, and the Affidavit is
Doe"
inaccurate because: (1) the description of the fictitious "Jane on whom service was allegedly
effected fails to describe the only people who could possibly have been at the residence at the time of the
Haynes'
alleged service: Ms. Haynes, her friend Shakera Elie, or Ms. seven-year-old daughter Zion Byrd;
(2) at the time of alleged service, the only other two adult residents who lived with Ms. Haynes: her
mother Wendy Haynes and her sister Faith Worrell, had already left for work and could not have accepted
such a Summons and Complaint; and (3) if served, Ms. Haynes would have appreciated the need to take
action in response to the action. See Jahqueena Haynes Affidavit ¶¶ 16-27; Wendy Haynes Affidavit ¶¶
9-11.
12. Due to the inaccuracies contained in the Affidavit of Service, jurisdiction cannot be
conferred onto this court in this action, and the case must be dismissed.
13. Moreover, Ms. Haynes has meritorious defenses to Plaintiff's claims that either
completely void the enforcement of the alleged debt or offset the damages allegedly suffered by Plaintiff.
I. PLAINTIFF DID NOT SERVE MS. HAYNES IN THIS ACTION, AND THE DEFAULT
JUDGMENT SHOULD BE VACATED AND THE CASE DISMISSED.
14. A court lacks jurisdiction to enter a default judgment where a party has been improperly
served. See CPLR § 5015(a)(4); Wells Fargo Bank, N.A. v. DeCesare, 148 A.D.3d 761 (2d Dep't 2017).
15. Service of process must be made in strict compliance with statutory "methods for
person"
effecting personal service upon a natural pursuant to CPLR § 308. Personal service may be
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effected "... by delivering the summons within the state to a person of suitable age and discretion at the
... dwelling place or usual place of abode of the person to be served and by ... mailing the summons to
residence."
the person to be served at his or her last known CPLR § 308(2).
16. New York courts have firmly established that personal jurisdiction is a threshold issue
that the court must determine before the court considers any other basis for relief. See Gottesman v.
Friedman, 90 A.D.3d 608 (2d Dep't 2011); Washington Mut. Bank v. Murphy, 127 A.D.3d 1167 (2d
Dep't 2015); Wells Fargo Bank, N.A. v. Jones, 139 A.D.3d 520, 522 (1st Dep't 2016); Cipriano by
Cipriano v. Hank, 197 A.D.2d 295, 298 (1st Dep't 1994). If the Plaintiff has not complied with the
prescribed conditions of service, then even actual notice of a lawsuit will not sustain the service or subject
the defendant to the court's jurisdiction. See Bankers Trust Co. of Cahfornia, N.A. v. Tsoukas, 303
A.D.2d 343 (2d Dep't 2003); Emigrant Mortg. Co., Inc. v. Westervelt, 964 N.Y.S.2d 543, (2d Dep't
2013). When the court lacks personal jurisdiction over a defendant, then the judgment must be vacated
regardless of whether the defendant has either a reasonable excuse for not appearing in the action or
meritorious defenses to the underlying action. See DeMartino v. Rivera, 148 A.D.2d 568 (2d Dep't 1989)
(holding that any default judgment resulting from improperly effected service is a nullity because the
court lacks personal jurisdiction, and that this holds true even if the defendant had actual notice of the suit
and no meritorious defense); Shaw v. Shaw, 97 A.D.2d 403, 404 (2d Dep't 1983) (ruling that, "[a]bsent
proper service, a default judgment is a nullity, and, once it is shown that there was no service, the
judgment must be unconditionally vacated whether or not the defendant has a meritorious defense is
irrelevant to the question of whether the judgment should be vacated for lack ofjurisdiction") (citations
omitted). Thus, the only relevant inquiry in addressing the issue of personal jurisdiction pursuant to CPLR
§ 5015(a)(4) is whether the plaintiff properly effected service of process.
17. In the present case, Ms. Haynes received the summons and complaint through the mail,
but it was never properly served under CPLR § 5015(a)(4). Even if the Plaintiff argues that Ms. Haynes
had actual notice of the lawsuit, the court does not have personal jurisdiction over her.
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18. The nullification of default judgments obtained through improper service is a necessary
measure" service,"
prophylactic against "sewer which is "... but one species of fraud that the Legislature
judgments."
and courts are concerned with vis-Ã -vis invalid default Shaw v. Shaw, 97 A.D.2d 403, 404
(2d Dep't 1983). Addressing unethical service practices, the Court of Appeals recognized a "continuing
servers"
and pervasive problem of unscrupulous service practices by licensed process in Matter of Barr v.
Department of Consumer Affairs of City of N.Y, 70 N.Y.2d 821, 822 ( N.Y. Ct. App. 1987). Notably, the
Barr Court directly targeted the deceptive practices of consumer debt collectors such as Plaintiffs herein.
Id. At 822-823.
19. The pervasiveness of deceptive practices by process servers forced the Deputy Chief
Administrative Judge of New York City Courts to issue an advisory opinion to judges regarding the
standard to vacate a default judgment if the movant asserts a lack of personal jurisdiction. See Civil Court
of the State of New York, Advisory Notice, Personal Jurisdiction, AN-13, Fisher, J., September 7, 2018
("an excusable default and a meritorious defense is not required if the movant is raising lack of personal
jurisdiction").
20. Significantly, the "deceptive practices [of sewer service] deprive defendants of their day
judgments"
in court and lead to fraudulent default that are "often associated with consumer debt
collectors."
See Shaw v. Shaw, 97 A.D.2d 403, 404 (2d Dep't 1983). Here, TD Auto Finance LLC has
Haynes'
obtained a default judgment by filing a fraudulent affidavit of service and disregarding Ms. due
process rights.
21. Plaintiff did not properly serve Ms. Haynes in this action. See Jahqueena Haynes
Affidavit ¶ 3. Ms. Haynes now moves pursuant to CPLR § 5015(a)(4), which provides that the Court
should vacate a judgment upon the grounds that the Court lacks jurisdiction to render the judgment or
Haynes'
order. Ms. motion is timely as there is no time limit to upon a defendant's motion to vacate a
default judgment upon the ground of lack of personal jurisdiction. See Caba v. Rai, 63 A.D.3d 578 (1st
Dep't 2009) (ruling that a motion to vacate a default judgment under CPLR § 5015(a)(4) has no stated
time limit and can be made at any time); see also David D. Siegel, Practice Commentaries, McKinney's
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Cons Laws of NY, Book 7B, CPLR 5105:3 ("[W]here want ofjurisdiction is the ground, the motion may
of course be made at any time.").
22. The Affidavit of Service falsely alleges service on a "person of suitable age and
discretion," Doe"
described as a co-tenant named "Jane at 123 Ralph Ave., Apt 3, Brooklyn, NY 11221
on July 12, 2018 at 7:39 a.m.. The process server Anthony Yanucci (Mr. Yanucci) of ABC Legal
Services, Inc. (ABC Legal Services) describes the place of usual abode as, "black door brown wall
floor." Doe,"
concrete Mr. Yanucci describes the person of suitable age and discretion as "Jane a black
female, 45-55 years old, 5 feet and 6 inches tall, weighing 160-180 pounds, with black hair. See Exhibit
C.
23. The process server's statements are false. Although Ms. Haynes does reside at 123 Ralph
"floor"
Ave., Apt 3, Brooklyn, NY 11221, the only outside the apartment door is carpeted, and the walls
are off-white, and the door is green. The outside of the building is beige or brown, but the main door only
has black bars over a glass door, and a wood interior door. See Jahqueena Haynes Affidavit ¶ 25;
Wendy Haynes Affidavit ¶ 14.
24. Ms. Haynes was never served by Mr. Yannucci. She is 28 years-old and 5 feet 8 inches
tall, and could not possibly be mistaken for a 45-55 year-old woman two in
Preview
FILED: KINGS COUNTY CLERK 03/27/2019 07:01 PM INDEX NO. 513958/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/27/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ..................................................................................................X Index No. 513958/2018 TD AUTO FINANCE LLC, Plaintiff, - against- AFFIRMATION IN SUPPORT OF ORDER TO SHOW CAUSE TO VACATE THE DEFAULT JUDGMENT AND DISMISS THE COMPLAINT JAHQUEENA HAYNES A/K/A HAYNES JAHQUEENA, Defendant. ..................................................................................................X STATE OF NEW YORK ) COUNTY OF NEW YORK ) SS: NAOMI YOUNG, ESQ., an attorney admitted to practice in the courts of the State of New York, affirms under penalty of perjury that: 1. I am a Staff Attorney at the law firm Her Justice, Inc., and Co-Counsel with CAMBA Legal Services for the Defendant, Jahqueena Haynes, and as such am fully familiar with all the facts, circumstances, and proceedings herein. Haynes' 2. I make this affirmation in support of Ms. Order to Show Cause to vacate the default judgment and dismiss the complaint for lack of personal service pursuant to CPLR §§ 5015(a)(4); or vacate and order a traverse hearing; or, in the alternative, for relief from judgment on motion pursuant to CPLR § 5015(a)(1), and in the interest of justice. 3. Ms. Haynes has not made any other motion for relief in this case. This is the first time that Ms. Haynes has moved to vacate the underlying judgment. She has not requested this or similar relief in any prior motion or application in this case. 4. Ms. Haynes first learned of this default judgment after a legal consultation with Her Justice for a divorce. It is our regular practice to assess divorces for potential financial issues, and as part of this assessment to run a credit report and ask about potential marital debt. I asked Ms. Haynes whether 1 1 of 11 FILED: KINGS COUNTY CLERK 03/27/2019 07:01 PM INDEX NO. 513958/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/27/2019 she had received any legal documents in relation to an auto loan which I saw on her credit report, and she recalled that she had received a large envelope from a law firm months earlier. I asked her to find this envelope and show it to me if she could. After she had a chance to show it to me, I saw that it contained a summons and complaint so I searched New York's e-filings and discovered the default judgment against her. See Jahqueena Haynes Affidavit ¶ 31. 5. At the time that Ms. Haynes received the envelope, she had recently separated from her abusive husband who had induced her to take out this auto loan and other debts. She glanced at the contents of the envelope and set it aside to deal with later when she saw that it had to do with the car her husband had insisted that she finance. See Jahqueena Haynes Affidavit ¶ 15. Ms. Haynes is a single mother, works full time, and attends graduate school full time. See Jahqueena Haynes Affidavit ¶ 32. Last summer, Ms. Haynes discovered that her husband had never paid several different bills which he had promised to pay, and that the payments he had made on the car had bounced. See Jahqueena Haynes Affidavit ¶¶ 9, 10. 6. Prior to speaking with me about the case, Ms. Haynes did not know that a judgment was entered against her, nor that she had the right to challenge enforcement of the judgment. See Jahqueena Haynes Affidavit ¶ 31. 7. Ms. Haynes, through her attorneys, now files the instant Order to Show Cause to vacate the default judgment. Ms. Haynes brought this Order to Show Cause, through her attorneys, as soon as she learned of the Default Judgment and was able to retain counsel. 8. The instant case is a consumer credit action initiated by TD Auto Finance LLC, a bank, based on an alleged debt owed to Premier Ford NY Inc. and allegedly assigned to TD Auto Finance LLC. See Exhibit A, Summons and Complaint. The case was filed by Deily & Glastetter, LLP, attorneys for the Plaintiff. 9. On or about October 3, 2018, a default judgment was entered against Ms. Haynes in the amount of $16,898.41. See Exhibit B, copy of Judgment. 2 2 of 11 FILED: KINGS COUNTY CLERK 03/27/2019 07:01 PM INDEX NO. 513958/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/27/2019 10. As stated in the accompanying Affidavit, Ms. Haynes was never properly served in this action. See Jahqueena Haynes Affidavit ¶ 3, 4, 5, 17, 26, 27. 11. This case presents an unmistakable instance of defective service. The attached Affidavits of Ms. Haynes and of her demonstrate that service - as described in the process mother, Wendy Haynes, server's Affidavit - could not have occurred. See Exhibit Affidavit of 2018. Ms. C, Service, July 17, Haynes states that the process server never served her or anyone in her household, and the Affidavit is Doe" inaccurate because: (1) the description of the fictitious "Jane on whom service was allegedly effected fails to describe the only people who could possibly have been at the residence at the time of the Haynes' alleged service: Ms. Haynes, her friend Shakera Elie, or Ms. seven-year-old daughter Zion Byrd; (2) at the time of alleged service, the only other two adult residents who lived with Ms. Haynes: her mother Wendy Haynes and her sister Faith Worrell, had already left for work and could not have accepted such a Summons and Complaint; and (3) if served, Ms. Haynes would have appreciated the need to take action in response to the action. See Jahqueena Haynes Affidavit ¶¶ 16-27; Wendy Haynes Affidavit ¶¶ 9-11. 12. Due to the inaccuracies contained in the Affidavit of Service, jurisdiction cannot be conferred onto this court in this action, and the case must be dismissed. 13. Moreover, Ms. Haynes has meritorious defenses to Plaintiff's claims that either completely void the enforcement of the alleged debt or offset the damages allegedly suffered by Plaintiff. I. PLAINTIFF DID NOT SERVE MS. HAYNES IN THIS ACTION, AND THE DEFAULT JUDGMENT SHOULD BE VACATED AND THE CASE DISMISSED. 14. A court lacks jurisdiction to enter a default judgment where a party has been improperly served. See CPLR § 5015(a)(4); Wells Fargo Bank, N.A. v. DeCesare, 148 A.D.3d 761 (2d Dep't 2017). 15. Service of process must be made in strict compliance with statutory "methods for person" effecting personal service upon a natural pursuant to CPLR § 308. Personal service may be 3 3 of 11 FILED: KINGS COUNTY CLERK 03/27/2019 07:01 PM INDEX NO. 513958/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/27/2019 effected "... by delivering the summons within the state to a person of suitable age and discretion at the ... dwelling place or usual place of abode of the person to be served and by ... mailing the summons to residence." the person to be served at his or her last known CPLR § 308(2). 16. New York courts have firmly established that personal jurisdiction is a threshold issue that the court must determine before the court considers any other basis for relief. See Gottesman v. Friedman, 90 A.D.3d 608 (2d Dep't 2011); Washington Mut. Bank v. Murphy, 127 A.D.3d 1167 (2d Dep't 2015); Wells Fargo Bank, N.A. v. Jones, 139 A.D.3d 520, 522 (1st Dep't 2016); Cipriano by Cipriano v. Hank, 197 A.D.2d 295, 298 (1st Dep't 1994). If the Plaintiff has not complied with the prescribed conditions of service, then even actual notice of a lawsuit will not sustain the service or subject the defendant to the court's jurisdiction. See Bankers Trust Co. of Cahfornia, N.A. v. Tsoukas, 303 A.D.2d 343 (2d Dep't 2003); Emigrant Mortg. Co., Inc. v. Westervelt, 964 N.Y.S.2d 543, (2d Dep't 2013). When the court lacks personal jurisdiction over a defendant, then the judgment must be vacated regardless of whether the defendant has either a reasonable excuse for not appearing in the action or meritorious defenses to the underlying action. See DeMartino v. Rivera, 148 A.D.2d 568 (2d Dep't 1989) (holding that any default judgment resulting from improperly effected service is a nullity because the court lacks personal jurisdiction, and that this holds true even if the defendant had actual notice of the suit and no meritorious defense); Shaw v. Shaw, 97 A.D.2d 403, 404 (2d Dep't 1983) (ruling that, "[a]bsent proper service, a default judgment is a nullity, and, once it is shown that there was no service, the judgment must be unconditionally vacated whether or not the defendant has a meritorious defense is irrelevant to the question of whether the judgment should be vacated for lack ofjurisdiction") (citations omitted). Thus, the only relevant inquiry in addressing the issue of personal jurisdiction pursuant to CPLR § 5015(a)(4) is whether the plaintiff properly effected service of process. 17. In the present case, Ms. Haynes received the summons and complaint through the mail, but it was never properly served under CPLR § 5015(a)(4). Even if the Plaintiff argues that Ms. Haynes had actual notice of the lawsuit, the court does not have personal jurisdiction over her. 4 4 of 11 FILED: KINGS COUNTY CLERK 03/27/2019 07:01 PM INDEX NO. 513958/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/27/2019 18. The nullification of default judgments obtained through improper service is a necessary measure" service," prophylactic against "sewer which is "... but one species of fraud that the Legislature judgments." and courts are concerned with vis-à -vis invalid default Shaw v. Shaw, 97 A.D.2d 403, 404 (2d Dep't 1983). Addressing unethical service practices, the Court of Appeals recognized a "continuing servers" and pervasive problem of unscrupulous service practices by licensed process in Matter of Barr v. Department of Consumer Affairs of City of N.Y, 70 N.Y.2d 821, 822 ( N.Y. Ct. App. 1987). Notably, the Barr Court directly targeted the deceptive practices of consumer debt collectors such as Plaintiffs herein. Id. At 822-823. 19. The pervasiveness of deceptive practices by process servers forced the Deputy Chief Administrative Judge of New York City Courts to issue an advisory opinion to judges regarding the standard to vacate a default judgment if the movant asserts a lack of personal jurisdiction. See Civil Court of the State of New York, Advisory Notice, Personal Jurisdiction, AN-13, Fisher, J., September 7, 2018 ("an excusable default and a meritorious defense is not required if the movant is raising lack of personal jurisdiction"). 20. Significantly, the "deceptive practices [of sewer service] deprive defendants of their day judgments" in court and lead to fraudulent default that are "often associated with consumer debt collectors." See Shaw v. Shaw, 97 A.D.2d 403, 404 (2d Dep't 1983). Here, TD Auto Finance LLC has Haynes' obtained a default judgment by filing a fraudulent affidavit of service and disregarding Ms. due process rights. 21. Plaintiff did not properly serve Ms. Haynes in this action. See Jahqueena Haynes Affidavit ¶ 3. Ms. Haynes now moves pursuant to CPLR § 5015(a)(4), which provides that the Court should vacate a judgment upon the grounds that the Court lacks jurisdiction to render the judgment or Haynes' order. Ms. motion is timely as there is no time limit to upon a defendant's motion to vacate a default judgment upon the ground of lack of personal jurisdiction. See Caba v. Rai, 63 A.D.3d 578 (1st Dep't 2009) (ruling that a motion to vacate a default judgment under CPLR § 5015(a)(4) has no stated time limit and can be made at any time); see also David D. Siegel, Practice Commentaries, McKinney's 5 5 of 11 FILED: KINGS COUNTY CLERK 03/27/2019 07:01 PM INDEX NO. 513958/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/27/2019 Cons Laws of NY, Book 7B, CPLR 5105:3 ("[W]here want ofjurisdiction is the ground, the motion may of course be made at any time."). 22. The Affidavit of Service falsely alleges service on a "person of suitable age and discretion," Doe" described as a co-tenant named "Jane at 123 Ralph Ave., Apt 3, Brooklyn, NY 11221 on July 12, 2018 at 7:39 a.m.. The process server Anthony Yanucci (Mr. Yanucci) of ABC Legal Services, Inc. (ABC Legal Services) describes the place of usual abode as, "black door brown wall floor." Doe," concrete Mr. Yanucci describes the person of suitable age and discretion as "Jane a black female, 45-55 years old, 5 feet and 6 inches tall, weighing 160-180 pounds, with black hair. See Exhibit C. 23. The process server's statements are false. Although Ms. Haynes does reside at 123 Ralph "floor" Ave., Apt 3, Brooklyn, NY 11221, the only outside the apartment door is carpeted, and the walls are off-white, and the door is green. The outside of the building is beige or brown, but the main door only has black bars over a glass door, and a wood interior door. See Jahqueena Haynes Affidavit ¶ 25; Wendy Haynes Affidavit ¶ 14. 24. Ms. Haynes was never served by Mr. Yannucci. She is 28 years-old and 5 feet 8 inches tall, and could not possibly be mistaken for a 45-55 year-old woman two in