Homeowners Waive Defective Service in Property Foreclosure
The Arkansas Court of Appeals held that defective service was waived in Trelfa v. Simmons First Bank of Jonesboro, No. 06-762 (4/4/07).
The Trelfas purchased a residence by giving State Street Bank a first mortgage. They later took out a loan from Simmons First Bank and gave Simmons a second mortgage. The Trelfas defaulted, and Simmons commenced foreclosure proceedings.
Simmons filed the complaint in December 2002 but did not serve the Trelfas. In January 2003, Simmons filed an amended complaint. This time the bank served the Trelfas, but it used the summonses from the original complaint rather than issuing new summonses. The Trelfas never answered or filed a pleading, but they agreed to an order appointing a receiver, which was entered in February 2003. The property was sold at a foreclosure sale and the trial court entered judgment for Simmons, although the Trelfas claimed they never waived the defective service.
The Court of Appeals affirmed, holding that the Trelfas waived the defective service by not objecting in their first responsive pleading. The court also agreed that entry of the order appointing receiver within 120 days of the amended complaint satisfied Ark. R. Civ. P. 4(i).
