Why Appealing Pro Se Can Be An Appeal Killer (NY)
In Wells Fargo Bank, N.A. v. Kim Davis, et al., Index No. 500310/14, 2019-12927, pro se appellant Kim Davis made one critical mistake in her appeal on this matter, and that was not retaining an attorney. After Davis defaulted on her mortgage in 2010, Wells Fargo Bank began foreclosure proceedings on Davis’s property in 2014. When Davis never answered, Wells Fargo moved for default in 2015 which Davis failed to oppose (referred to in the decision as Motion No. 1). After her default, Davis made several motions in succession: a motion to dismiss for improper service and lack of standing (No. 2), followed by a motion to renew and reargue (No. 3) when that motion was denied, a motion to vacate the default (No. 4), a motion to direct the holding of a hearing by referee (No. 5), and another motion to dismiss the complaint (No. 6). This would be followed by a motion by Wells Fargo to confirm the referee’s report and for a judgment of foreclosure and sale (No. 7).
Lacking an attorney, things did not go well for Davis. The Appellate Division affirmed the decision denying Motion 1 outright as she failed to oppose it, waiving her right to appeal it. As to Motion 2, they affirmed the denial of her motion to dismiss for lack of standing given her failure to vacate her default which automatically waived the defense of lack of standing. The denials of both Motions 3 AND 6 were affirmed because Davis forgot to include the motion papers for both in the appeal appendix, meaning they could not be adequately reviewed. Motion 4 was affirmed as properly denied because Davis failed to demonstrate a reasonable excuse for her default or her failure to oppose Motion 1. As to Motion 5, the denial was affirmed as the Appellate Division found Davis’s contentions that the referee’s reports were based on unproduced business records were unfounded and even if a hearing was not held, she still had the chance to submit records to the referee. Lastly, while no mention was made regarding Motion 7, Wells Fargo’s motion to confirm the report, it can likely be assumed the decision granting it was affirmed.
The vast majority of Davis’s issues in this matter appear to be oversights that likely could have been avoided if she had retained an attorney who knows how to deal with these matters. The moral of the story: when facing legal troubles, talk to an attorney – that’s why we’re here.
Thank you to Patrick Argento for his contribution to this article. Should you have any questions, please contact Matthew Care.