This follows up my December 17, 2010 post entitled “Service of Process” Fundamentals For The Plaintiff Lender. In that post, I discussed how and why the delivery of a summons and complaint triggers the foreclosure process. I also mentioned that ineffective service of process prohibits a trial court from having personal jurisdiction over a defendant. At times, challenges with service of process result in questions about whether a plaintiff lender can or should proceed to judgment. Today, I tackle the question of what to do about service of process once the defendant files an appearance and responds to the complaint without asserting a claim that service was insufficient. The answer is – the adequacy of service of process should no longer be a concern.
Trial Rule 12(H)(1). Indiana Rule of Trial Procedure 12(B)(4) recognizes the defense of “insufficiency of process.” But, pursuant to Section (H)(1), the defense can be waived:
A defense of lack of jurisdiction over the person, . . . insufficiency of process, insufficiency of service of process, . . . is waived to the extent constitutionally permissible:
(b) if it is neither made by motion under [Rule 12] nor included in a responsive pleading [such as an answer] . . ..
Waiver. Trial Rule 12(H)(1) has been interpreted by the Indiana Court of Appeals in at least the following two cases: Hill v. Ebbets Partners, 812 N.E.2d 1060 (Ind. Ct. App. 2004) and Phillips v. Great Lakes Health Congress, 354 N.E.2d 307 (Ind. Ct. App. 1976). In Hill, the defendant on appeal contended that the trial court did not have personal jurisdiction over her because the summons was not served properly and, as such, the summary judgment entered against her was void. The Court disagreed and cited to T.R. 12(H)(1), which “effectively requires that a party desiring to assert the defense of lack of personal jurisdiction must do so in either the answer or in a separate motion filed before the answer.” Although service of process may not have been properly effectuated, the defendant appeared at the trial court and filed a response to the plaintiff’s claim. Because she did not bring any jurisdictional challenge before the appeal, defendant “waived the right to raise this issue.” Similarly, in Phillips, the Court said “where the party in question has formally appeared and elected to answer the complaint, there is no constitutional bar to the court’s jurisdiction over the person.”
Move on. Workout professionals and counsel prosecuting foreclosure actions may sometimes be anxious about the sufficiency of service. In the past, I’ve had lingering questions concerning, for instance, whether we had a valid address for a targeted defendant. But, under Indiana law, once that defendant files an appearance in the action and fails to attack the issue of service of process, either in a responsive pleading or in a separate T.R. 12(B) motion to dismiss, we can be assured that the validity of service of process is no longer an issue. In that case, whether the defendant was actually served is irrelevant.