Case of the Day: PHH Mortgage Corp. v. Colliton

The case of the day is PHH Mortgage Corp. v. Colliton (N.Y. Sup. Ct. 2012). The action was for foreclosure of a mortgage. PHH served the complaint on James Colliton, who accepted service for himself and his wife, Grace Colliton, but Mr. Colliton’s answer asserted that at the time of service, Mrs. Colliton no longer resided at the couple’s home. Some time later, PHH sought leave to serve Mrs. Colliton by mail in Ontario. 1

The decision is poorly reasoned. The judge pointed to Article 19 of the Hague Service Convention, which provides:

To the extent that the internal law of a Contracting State permits methods of transmission, other than those provided for in the preceding Articles, of documents coming from abroad, for service within its territory, the present Convention shall not affect such provisions.

He found that PHH had failed to show that the law of Canada permitted the method of service. This is the wrong analysis. The real questions are: (1) whether the law of the forum (New York) permits the method of service; and (2) whether the method of service is permitted under the Hague Service Convention. We have frequently noted that Canada has not objected to service by postal channels under Article 10(a) of the Convention. Therefore, if the method of service is permitted by New York law, then it is valid; PHH should not have had to make a showing under Canadian law.

My Canadian colleague Antonin Pribetić has noted that a Canadian court might not recognize or enforce a US judgment based on service by mail. This case is a great illustration of the kind of case where the plaintiff probably doesn’t need to take that point into account. The claim was for foreclosure of a mortgage on real estate located in New York, and there is no apparent likelihood that PHH would need to seek recognition or enforcement in Ontario.

Notes:

  1. There was apparently an issue about whether PHH had the right address, but I don’t discuss that issue here.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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