TAX FORECLOSURE SET ASIDE

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A tax foreclosure case was brought before Justice Williams Giacomo, who sits in a tax foreclosure part in the Supreme Court in Westchester County. Plaintiff had brought a tax foreclosure proceeding against the residence owned by Ms. Pena. The service of the notice of the tax foreclosure proceeding was returned as undelivered by the United States Postal Department. The premises the tax foreclosure was brought against was vacant. The defendant, Ms. Pena, was thereafter personally served at 8 Handford Place, in November of 2013, with a copy of the tax foreclosure summons and complaint.

NO APPEARANCE AND NO ANSWER

Ms. Pena did not appear in the lawsuit and did not submit an answer to the tax foreclosure proceeding. Ms. Pena contacted counsel for the plaintiff. She advised them she planned on paying the tax lien. She also advised counsel for the plaintiff she lived at 100 Wildey Street. She requested all future communications be sent to her at that address.

As a result of this communication counsel for the plaintiff amended the caption of his proceeding and served an amended complaint on the bank defendant. Plaintiff’s counsel failed to serve Ms. Pena. Thereafter Ms. Pena moved to vacate the judgment of foreclosure and was unsuccessful. In addition she requested the amended complaint be dismissed because it was served at an address she did not live in.

AMENDED COMPLAINT NOT PROPERLY SERVED

Judge Giacomo found the amended complaint had to be served on Pena. Since an amended complaint superseded the original complaint the amended complaint also had to be served in the same manner as the original summons.

Since the bank failed to do this the court vacated the judgment of foreclosure and dismissed the foreclosure lawsuit.

CONCLUSION:

Attorney Elliot Schlissel

The careful presentation of evidence in this case by Ms. Pena showed that the foreclosing plaintiff failed to meet the court’s rigorous standards concerning service of the tax foreclosure summons and complaint. Therefore the court dismissed the case.

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