Don’t Unwittingly Waive Goodbye to the Defense of Lack of Personal Jurisdiction
Print Article- Posted on: Feb 14 2025
It is axiomatic that a “plaintiff appears [in an action] merely by bringing it.” Deutsche Bank Nat. Trust Co. v. Hall, 185 A.D.3d 1006, 1007 (2nd Dep’t 2020) (citation and internal quotation marks omitted).[1] Once served with process, a defendant must appear in an action to avoid a default. CPLR 320(a), which sets forth, inter alia, the way a defendant can appear in an action, provides that “[t]he defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer.” See also Deutsche Bank, 185 A.D.3d at 1007-8 (describing the ways in which a defendant appears and the pitfalls of failing to do so). An appearance pursuant to CPLR §320(a) is a formal appearance.
New York courts, however, also recognize “informal appearances.” An informal appearance occurs “by actively litigating the action before the court.” Bank of New York Mellon v. Taylor, 230 A.D.3d 457, 458 (2nd Dep’t 2024) (citations and internal quotation marks omitted).[2] An appearance, whether formal or informal, can have a significant impact on litigation. Among other things, an appearance could: preclude the entry of a default judgment by plaintiff; operate to preclude a defendant from interposing a defense of lack personal jurisdiction; and, preclude a defendant from having a complaint dismissed pursuant to CPLR 3215(c) based on a plaintiff’s failure to seek a default judgment within a year of default.[3] See, e.g., OneWest Bank, FSB v. Villafana, 231 A.D.3d 845, 847-48 (2nd Dep’t 2024);Bank of New York, 230 A.D.3d 457, 458-49 (2nd Dep’t 2024). Depending on the circumstances, a plaintiff or a defendant may argue that an informal appearance has been made in an action. A plaintiff may argue that an informal appearance has been made to obtain jurisdiction over a defendant and a defendant may argue that an informal appearance has been made to avoid a default.
On February 5, 2025, the Second Department decided Wells Fargo Bank, N.A. v. Hosseinipour, a mortgage foreclosure action[4] in which the borrower was determined to have waived jurisdictional defenses by informally appearing in the action due to active participation. The lender in Hosseinipour commenced an action to foreclose a mortgage. The borrower failed to appear or answer the complaint. Subsequently, an order of reference and a judgment of foreclosure and sale was issued by the motion court. Thereafter, the borrower opposed a motion to, inter alia, to confirm the order of reference. The borrower, contending that the action should be deemed abandoned, also opposed the lender’s motion to appoint a substitute referee.
After a foreclosure sale was scheduled for the subject property, the borrower moved to vacate the order of reference and the judgment of foreclosure and sale for lack of personal jurisdiction. The motion was denied. The Second Department affirmed the motion court’s order. In so doing, the Court recognized that a “defendant may waive the issue of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss.” (Citations and internal quotation marks omitted.) Even without a formal appearance, the Court noted that: “a defendant may nevertheless appear in an action where his or her counsel communicates a clear intent to participate;” and “[a] defendant may appear informally by actively litigating the action before the court.” (Citations and internal quotation marks omitted). The Court also reiterated that when “a defendant participates in a lawsuit on the merits, he or she indicates an intention to submit to the court’s jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court.” (Citations and internal quotation marks omitted). Thus, the Court found that “the defendant waived his objection to personal jurisdiction by opposing the plaintiff’s motions, inter alia, for the appointment of a substitute referee on various grounds allegedly warranting dismissal of the complaint, without also asserting an affirmative objection to jurisdiction.” (Citations omitted.)
Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.
This article is for informational purposes and is not intended to be and should not be taken as legal advice.
[1] This BLOG has written numerous articles relating to formal and informal appearances (see, e.g., [here], [here], [here]. The introduction to today’s article is based on some of those articles.
[2] This BLOG writes frequently about mortgage foreclosure. Settlement conferences are generally required in residential mortgage foreclosure actions. See CPLR 3408 and the foreclosure part rules for the Supreme Court in which a particular action is pending. A “defendant’s participation in settlement conferences [does] not constitute either a formal or an informal appearance since he did not actively litigate the action before the Supreme Court or participate in the action on the merits.” Wells Fargo Bank, N.A. v. Martinez, 181 A.D.3d 470, 471 (1st Dep’t 2020) (citations, internal quotation marks and brackets omitted); see also US Bank Nat. Ass’n v. Kail, 189 A.D.3d 1652, 1654-55 (2nd Dep’t 2020); PennyMac Corp. v. Weinberg, 203 A.D.3d 1061, 1063 (2nd Dep’t 2022). Accordingly, attendance at a “foreclosure settlement conference” “did not waive the defense of lack of personal jurisdiction….” Wells Fargo Bank, N.A. v. Final Touch Interiors, LLC, 112 A.D.3d 813, 814 (2nd Dep’t 2013) (citations omitted).
[3] This BLOG has addressed CPLR 3215(c) numerous times. To find one of our numerous BLOG articles related to CPLR 3215(c), visit the “Blog” tile on our website and enter “3215(c)” in the “search” box.
[4] This BLOG writes frequently about mortgage foreclosure. To find one of our numerous BLOG articles related to mortgage foreclosure, visit the “Blog” tile on our website and enter “mortgage foreclosure,” or any other related search term in the “search” box.
