U.S. Bank, N.A., etc., plaintiff-respondent, v. GFRE (2011)

Argued—October 3, 2011

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Deborah Bernhardt appeals, as limited by her brief, from so much of an order of the Supreme Court, Richmond County (Giacobbe, J.), dated August 18, 2010, as denied that branch of her motion which was to set aside a foreclosure sale of the subject property.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Deborah Bernhardt which was to set aside a foreclosure sale of the subject property is granted.

After a hearing on the issue of the propriety of the service of process, the Supreme Court determined that, due to improper service, personal jurisdiction over the defendant Deborah Bernhardt, the owner of the foreclosed-upon property, had not been acquired.   Thus, the Supreme Court granted that branch of Bernhardt's motion which was to vacate the judgment of foreclosure and sale that had been entered upon her default in answering or appearing.   However, relying upon its purported equitable powers, the Supreme Court denied that branch of Bernhardt's motion which was to set aside the foreclosure sale.   This was error.

A court is without power to render a judgment against a party over whom the court lacks jurisdiction.   A judgment rendered without jurisdiction is void.   Further, when a deed is issued in execution upon such a void judgment, that deed is similarly void (see Hirsch v. Syrota's Auto Wreckers, 211 A.D.2d 621, 622;  Berlin v. Sordillo, 179 A.D.2d 717, 719;  McMullen v. Arnone, 79 A.D.2d 496, 499;  3–30 Bergman on New York Mortgage Foreclosures § 30.06 [2011] ).   Consequently, once the Supreme Court concluded that personal jurisdiction over Bernhardt was lacking, it should have granted that branch of Bernhardt's motion which was to set aside the foreclosure sale (see Bank One Natl. Assn. v. Osorio, 26 AD3d 452, 453;  Federal Home Loan Mtge. Corp. v MacPherson, 277 A.D.2d 418, 419;  Ralph C. Sutro Co. v. Valenzuela, 113 A.D.2d 793;  Horvath v. Grid Realty Corp., 64 A.D.2d 691).

In light of our determination, Bernhardt's remaining contention has been rendered academic.

SKELOS, J.P., CHAMBERS, SGROI and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court