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Civil Practice – Service of Process – Corporate – Real Property – Mortgage Foreclosure – Easement

Civil Practice – Service of Process – Corporate – Real Property – Mortgage Foreclosure – Easement

The defendant-bank foreclosed on a landlocked lot accessible only via an easement over plaintiff’s property. When plaintiff tried to serve defendant with process in this declaratory judgment action, plaintiff directed process to the address that appeared in the foreclosure action; however, (1) the bank changed loan servicers shortly after the foreclosure, (2) the former servicer moved away, and (3) crucially, plaintiff’s complaint and summons list the defendant as “The Bank of New York Mellon” without addressing an officer, director, or agent authorized to be served on the corporation’s behalf. Plaintiff’s failure to comply with N.C. R. Civ. P. 4(j)(6) resulted in the trial court’s lack of personal jurisdiction over defendant.

We vacate the default judgment, reverse the trial court’s denial of defendant’s motion to set aside the entry of default, and dismiss as moot defendant’s appeal from the denial of its motion for relief from default judgment.

We recognize that plaintiff’s attorney made several good-faith attempts to serve defendant through defendant’s counsel in the foreclosure action. However, an attorney who generally handles the legal affairs for an individual is not an agent of that person for the service of process unless he makes an appearance in the lawsuit for him.

Here, there is no evidence that defendant’s counsel in the foreclosure action had made any appearance in the matter before us at the time of the attempted service. And, with regard to any actual notice that may have resulted from notice to defendant’s counsel in the foreclosure action, actual notice is not a valid substitute for service when that service does not comply with the statute.

Quiet Reflections Retreat, Inc. v. Bank of New York Mellon (Lawyers Weekly No. 012-057-18, 9 pp.) (Lucy Inman, J.) Appealed from Yancey County Superior Court (Marvin Pope, J.) Tikkun Gottschalk for plaintiff; Phillip Lewis and Amy Hunt for defendant. N.C. App. Unpub.


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