On Tuesday November 17, 2015 the Dutchess County clerk released and posted an order by the Honorable Judge James V. Brands, wherein the Judge turned back the hands of time and Ordered a Traverse Hearing to determine the validity of the service of process, in a foreclosure case where the property had already been scheduled for a public auction on the steps of the Dutchess County Courthouse. The decision is available HERE.
In an interview with Mr. McCaffrey on Tuesday November 17, 2015, he explained the history of the case and background. “This client almost lost his house” said McCaffrey, and “the bank here, hired Steven J. Baum to commence their foreclosure and he in turn hired a process server who resorted to sewer service… Steven Baum is well-known for foreclosure abuses and the disgusting practices of his band of cohorts”.
This order was the culmination of months of litigation work by attorney Brian McCaffrey’s firm on behalf of homeowner Gildardo Diez of Poughkeepsie, NY. In August of 2015 the lender scheduled a foreclosure sale of the Diez home. That’s when Diez contacted Mr. McCaffrey. Mr. McCaffrey’s firm worked feverishly to pull together the history and facts of the case and review the prior documents submitted in the case.
The August 2015 foreclosure sale was postponed when McCaffrey’s firm submitted an emergency order to show cause which was signed by Judge Brands. The next step in the case was a hearing on October 2, 2015, where McCaffrey and the lenders attorneys appeared for oral argument. The decision rendered on November 16, 2015, means that a hearing has been scheduled where Diez will have an opportunity to confront the process server in the case, face to face.
At the traverse hearing Judge Brands will hear testimony and then decide whether he believes the process server or the home owner is more credible.
While reviewing the case file and during conversations with the homeowner, Diez told McCaffrey that he had “never been served with the original summons & complaint”. McCaffrey said “This fact was used to bring an order to show cause to stay the sale of the property.”
According to McCaffrey, Judge Brands signed the order to show cause and the plaintiff in the case US Bank was forced to defend their service of process in the case which took place under the prior attorney for US Bank – the disgraced law firm of Steven J. Baum. McCaffrey argued that the process server Tammy McCourt wasn’t credible and had engaged in “sewer service”. As support for this allegation McCaffrey showed the court that the process server had written down that she “spoke to the person served and asked whether or not he was in the military”.. however, McCourt had attested that she did not serve a person, because she affixed the papers to the door. This discrepancy was enough to question the service and get a hearing on credibility
Faced with the evidence of their process server’s prior misdeeds and unreliability, and the fact that the case had been commenced by the disgraced Baum firm, the attorneys for US Bank contacted McCaffrey to seek an extension of time to respond to the order to show cause. McCaffrey ultimately granted the attorneys an extension of time out of the long standing rules of the courts in New York that dictate professional courtesy between attorneys. Attorneys for US Bank played hardball and pointed out some of the discrepancies in the homeowner’s version of events that McCaffrey’s clients would have to explain in court.
The quick and efficient work of McCaffrey’s firm could have the effect of vacating the more than 6 year default on the part of the homeowner and vacating two judgments that had allowed the bank to schedule a sale of the property. The case is entitled: U.S. BANK NATIONAL ASSO. ETAL vs. DIEZ, GILDARDO ETAL under Index: 005656/2008