This was originally published on the SGR Blog.
Court Determines If Misinformation Sufficed to Establish Usual Place of Abode
An intermediate appellate court was recently presented with a simple question that had not previously arisen: whether an affirmative misrepresentation by a relative of a defendant at a residential address that the address was proper, which was relied upon by a process server, may establish that service was valid–even if evidence established that the address was not, in fact, the defendant’s actual dwelling place or usual place of abode? Or, under the circumstances, was service of process upon the defendant at an address that was not actually his dwelling place or usual place of abode defective, notwithstanding information provided to the process server at the doorstep?
A mortgage foreclosure action arose out of an alleged default on a note executed in November 2004 by James A. Kelly and his father-in-law, Edward J. Bressler, in favor of Everbank. As security for the note, they executed a mortgage encumbering certain real property in Mastic Beach. The mortgage documents included an occupancy rider in which Bressler expressed his intention to primarily reside at the mortgaged premises within 60 days.
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