Legal Document: Midfirst Bank v. Isidro Pichardo, Koren Benbow, John Doe

On September 27, 2023 a AFFIDAVIT OR AFFIRMATION IN SUPPORT OF MOTION was filed involving a dispute between Midfirst Bank, and Isidro Pichardo, John Doe, Koren Benbow, for Real Property - Mortgage Foreclosure - Residential in the District Court of Nassau County.

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FILED: NASSAU COUNTY CLERK 12/02/2023 11:40 AM INDEX NO. 615663/2023
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 12/02/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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MIDFIRST BANK INDEX NO. 615663/2023

Plaintiff,
-against-

ISIDRO PICHARDO, ET AL
Defendant(s).
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AFFIDAVIT IN SUPPORT OF DEFENDANT ISIDRO PICHARDO’S MOTION FOR AN ORDER
DISMISSING THE FORECLOSURE ACTION PURSUANT TO CPLR 3211(a)(1)(2)(3)(5)(7)(8);
CPLR 308(1)(2)(4); FAPA (A7737B).

Isidro Pichardo Defendant - Pro Se, (hereafter referred to as “Defendant or

Pichardo”), hereby enters this Affidavit in Support of Motion for an Order (i) Dismissing the

action pursuant to CPLR 3211 (a)(1) upon documentary evidence; (ii) dismissing the action

pursuant to CPLR 3211 (a)(2) because the Court lacks subject matter jurisdiction of the cause

of action; (iii) dismissing the action pursuant to CPLR 3211 (a)(3) because Plaintiff lacks legal

capacity to assert the cause of action; (iv) dismissing the action pursuant to CPLR 3211 (a)(5)

because the cause of action may not be maintained payment has been made; (v) dismissing

the action pursuant to CPLR 3211 (a)(7) because the pleading fails to state a cause of action;

(vi) dismissing the foreclosure action for lack of personal jurisdiction pursuant to CPLR 3211

(a)(8) for failure to comply with service under CPLR 308(1)(2)(4); (vii) cancel the Notice of

Pendency pursuant to CPLR § 6514(a), deposes and says:

1. I am of lawful age and sound mind. I am competent to testify about the facts

and circumstances herein, having personal knowledge of the same.

2. I am the Defendant in this matter.

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3. I submit this Affidavit in Support of Motion for an Order (i) Dismissing the

action pursuant to CPLR 3211 (a)(1) upon documentary evidence; (ii) dismissing the action

pursuant to CPLR 3211 (a)(2) because the Court lacks subject matter jurisdiction of the

cause of action; (iii) dismissing the action pursuant to CPLR 3211 (a)(3) because Plaintiff

lacks legal capacity to assert the cause of action; (iv) dismissing the action pursuant to CPLR

3211 (a)(5) because the cause of action may not be maintained payment has been made; (v)

dismissing the action pursuant to CPLR 3211 (a)(7) because the pleading fails to state a

cause of action; (vi) dismissing the foreclosure action for lack of personal jurisdiction

pursuant to CPLR 3211 (a)(8) for failure to comply with service under CPLR 308(1)(2)(4); (vii)

cancel the Notice of Pendency pursuant to CPLR § 6514(a) and; (viii) any other relief from

the Court in the interest of justice.

4. No prior application for the relief requested herein has been previously made

by Defendants. This constitutes Defendants’ first application for the below reliefs.

5. The basis and supporting grounds for objection and opposition are more fully

set forth below.

STANDARD OF REVIEW

PERSONAL SERVICE OF PROCESS UNDER CPLR 308(1)

6. "Service of process must be made in strict compliance with statutory

`methods for effecting personal service upon a natural person' pursuant to CPLR 308"

(Estate of Waterman v Jones, 46 AD3d 63, 65[2007], quoting Macchia v Russo, 67 NY2d 592,

594 [1986]; see Dorfman v Leidner, 76 NY2d 956, 958 [1990]). "A process server’s affidavit

of service constitutes prima facie evidence of proper service" (Scarano v Scarano, 63 AD3d

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716, 716[2009]). "Although a defendant's sworn denial of receipt of service generally rebuts

the presumption of proper service established by the process server's affidavit and

necessitates an evidentiary hearing (see Skyline Agency v Coppotelli, Inc.,117 AD2d 135, 139

[1986]), no hearing is required where the defendant fails to swear to `specific facts to rebut

the statements in the process server's affidavits'" (Scarano v Scarano, 63 AD3d at 716,

quoting Simonds v Grobman, 277AD2d 369, 370 [2000]).

STANDARD OF REVIEW

DISMISSAL FOR LACK OF PERSONAL SERVICE PURSUANT TO CPLR 3211(a)(8)

7. "While the ultimate burden of proof rests with the party asserting

jurisdiction ..., the plaintiff[], in opposition to a motion to dismiss pursuant to CPLR 3211 (a)

(8), need only make a prima facie showing that the defendant[s] w[ere] subject to the

personal jurisdiction of the Supreme Court" (Cornely v Dynamic HVAC Supply, LLC, 44 AD3d

986, 986 [2007] [citation omitted]; see Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793, 794

[2008]; Alden Personnel, Inc. v David, 38 AD3d 697, 698 [2007]).

8. When opposing a motion to dismiss a complaint pursuant to CPLR 3211 (a)

(8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs

need not make a prima facie showing of jurisdiction, but instead "need only demonstrate

that facts `may exist' to exercise personal jurisdiction over the defendant" (Ying Jun Chen v

Lei Shi, 19 AD3d 407, 407-408 [2005], quoting CPLR 3211 [d]; see Peterson v Spartan

Indus., 33 NY2d 463, 467 [1974]). If "it appear[s] from affidavits submitted in opposition to

[the] motion ... that facts essential to justify opposition may exist but cannot then be

stated," a court may, in the exercise of its discretion, postpone resolution of the issue of

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personal jurisdiction (CPLR 3211 [d]; see Peterson v Spartan Indus., 33 NY2d at 467; Ying Jun

Chen v Lei Shi, 19 AD3d at 407-408).

STANDARD OF REVIEW

DISMISSAL PURSUANT TO CPLR 3211(a)(1)

9. On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to

be afforded a liberal construction and the plaintiff's allegations are accepted as true and

accorded the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d

83, 87 [1994]; Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d 1149 [2010]).

10. A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be

granted only if the documentary evidence submitted by the defendant utterly refutes the

factual allegations of the complaint and conclusively establishes a defense to the claims as a

matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; First

Keystone Consultants, Inc. v DDR Constr. Servs., 74 AD3d 1135 [2010]).

STANDARD OF REVIEW

DISMISSAL FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO CPLR 3211(a)(2)

11. CPLR 3211(a)(2) refers to motions to dismiss a causes of action and provides

in pertinent part as follows: "A party may move for judgment dismissing one or more causes

of action asserted against him on the ground that the court has no jurisdiction of the

subject matter of the cause of action." Subject matter jurisdiction refers to objections that

are fundamental to the power of adjudication of a court (Garcia v. Gov't Emps. Ins. Co., 130

AD3d 870, 871 [2nd Dept 2015]).

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12. Pursuant to CPLR § 3211(e), a motion to dismiss a cause of action shall be

made "at any time before service of the responsive pleading is required". (CPLR § 3211(e)).

Where a motion is not filed in accordance with CPLR § 3211(e), it is untimely. (see Han v.

New York City Transit Auth., 203 A.D.3d 511, 164 N.Y.S.3d 602, 604 [1st Dept. 2022], U.S.

Bank N.A. v. Gilchrist, 172 A.D.3d 1425, 1426-1427, 102 N.Y.S.3d 625 [2d Dept. 2019]).

However, where the motion to dismiss a cause of action has been pursued pursuant to CPLR

§ 3211(a)(2), (7) or (10), the motion "may be made at any subsequent time or in a later

pleading". (CPLR § 3211(e), see Han 203 A.D.3d at 511, supra.).

STANDARD OF REVIEW

DISMISSAL BECAUSE CAUSE OF ACTION CANNOT BE MAINTAINED FOR PAYMENT

PURSUANT TO CPLR 3211(a)(5)

13. To dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the grounds

that it is time-barred, a defendant must make a prima facie showing that the time in which

to sue has expired (see Singh v New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. &

Queens Hosp. Ctr.], 107 AD3d 780 [2013]; House of Spices [India], Inc. v SMJ Servs., Inc., 103

AD3d 848 [2013]; Swift v New York Med. Coll., 25 AD3d 686 [2006]). To make this prima

facie showing, the defendant must establish, inter alia, when the cause of action accrued

(see Swift v New York Med. Coll., 25 AD3d 686 [2006]).

STANDARD OF REVIEW

DISMISSAL FOR FAILURE TO STATE A CAUSE OF ACTION PURSUANT TO CPLR 3211(a)(7)

14. In considering a motion to dismiss for failure to state a cause of action

pursuant to CPLR 3211 (a) (7), the court must accept the facts as alleged in the complaint as

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true, accord the plaintiff the benefit of every possible favorable inference, and determine

only whether the facts as alleged fit within any cognizable legal theory (see Nonnon v City of

New York, 9 NY3d 825, 827 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Nerey v

Greenpoint Mtge. Funding, Inc., 116 AD3d 1015 [2014]; Goldberg v Rosenberg, 116 AD3d

919 [2014]).

STANDARD OF REVIEW

DISMISSAL FOR DUAL TRACKING PURSUANT TO FAPA (A7737B)

15. The legislative intent of FAPA is to thwart and eliminate abusive and unlawful

litigation tactics that have been adopted and pursued in mortgage foreclosure actions to

manipulate the law and judiciary to yield expediency and the convenience of mortgage

banking and servicing institutions at the expense of finality and repose that statutes of

limitations are meant to insure. See Wilmington Sav. Fund Socy., FSB v Madden, 2023 NY

Slip Op 23044 (Sup. Ct. Feb. 10, 2023).

ARGUMENT

CPLR 308(1)

16. The Plaintiff commenced this action by way of a Notice of Pendency of

Action and Summons and Complaint dated August 27, 2023. Plaintiff purports that said

papers were served on Defendant Isidro Pichardo by way of personal service and first-class

mail under CPLR § 308(1)(2) or (4).

17. CPLR § 308(1) permits that Personal service upon a natural person shall be

made by any of the following methods: by delivering the summons within the state to the

person to be served.

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18. "`It is axiomatic that the failure to serve process in an action leaves the court

without personal jurisdiction over the defendant, and all subsequent proceedings are

thereby rendered null and void'" (Krisilas v Mount SinaiHosp., 63 AD3d 887, 889 [2009],

quoting McMullen v Arnone, 79 AD2d 496, 499 [1981]). A defect in service is not cured by

the defendant's subsequent receipt of actual notice of the commencement of the action

(see Feinstein v Bergner, 48 NY2d234, 241 [1979]; Krisilas v Mount Sinai Hosp., 63 AD3d at

889; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 344[2003]).

19. "Since notice received by means other than those authorized by statute

cannot serve to bring a defendant within the jurisdiction of the court" (Feinstein v

Bergner, 48 NY2d 234, 241 [1979]; see McMullen v Arnone, 79 AD2d at 499).

20. "The burden of proving that personal jurisdiction has been acquired over a

defendant in an action rests with the plaintiff" (Wells Fargo Bank, NA v Chaplin, 65 AD3d

588, 589 [2009]; see Washington Mut. Bank v Holt, 71 AD3d 670 [2010]).

21. On October 27, 2023, Plaintiff filed two (2) copies of the process server’s

affidavit in the NYSCEF Docket No.: 9 and 10. A copy of the process server’s affidavit are

attached hereto as Exhibit “A” and “B.”

22. The process server averred that “I, Richard Schultz, being duly sworn,

deposes and says deponent in not a party to this action and is over the age of eighteen

years and resides in the state of New York. That on the 10/20/2023 at 3:24PM at 9 Chatham

Ct, Hicksville, New York 11801, deponent served the within E-File Notice; Summons and

Complaint; Certificate of Merit; 1303 Notice-Help for Homeowners in Foreclosure in bold

fourteen-point type and printed on colored paper, and the title to the notice printed in

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twenty-point type in compliance with RPAPL Sect 1303 bearing Index Number 615663/2023

on Isidro Pichardo, Defendant therein named.

23. Richard Schultz gave the following boilerplate description of Isidro Pichardo:

Gender: Female; Race/Skin: Tan; Age 51-65 Yrs; Weight: Under 100 Lbs; Height: Under 5ft;

Hair: Black; Glasses: Yes.

24. I hereby submit my sworn denial affidavit testimony along with a

corroborating affidavit from my relative, all of which rebuts the affidavit of service executed

by the Process Servers. (See Exhibit “C” and “D”)

25. Contrary to Schultz’s defective affidavit, Defendant and his relative avers via

their sworn affidavit testimony that Defendant was never served by the Plaintiff or the

above process server or anyone named in the action.

26. These non-conclusory denials point specifically to the following defects found

within the previously discussed affidavit of service.

27. Firstly, Richard Schultz provided an inaccurate description of the person

served, as Gender: Female; Race/Skin: Tan; Age 51-65 Yrs; Weight: Under 100 Lbs; Height:

Under 5ft; Hair: Black; Glasses: Yes. Isidro Pichardo is in fact NOT a female but of the MALE

gender; Isidro Pichardo is NOT under 5ft but OVER 5ft 10Inches; Isidro Pichardo does not

weigh UNDER 100lbs but OVER 200LBS; Isidro Pichardo does NOT wear glasses as

wrongfully claimed by Schultz.

28. Secondly, Isidro Pichardo does not reside at 9 Chatham Ct, Hicksville, New

York 11801, and did not change his address by notifying the Commissioner of the DMV of a

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change in address as required by Vehicle and Traffic Law § 505(5). (See Cruz v Narisi,

32AD3d 981 [2006]).

29. It is also worth highlighting that proper identification of the party intended to

be served is a critical facet of the process of service and as such, detailed descriptions of the

party being served is the normal and understandable practice. Any trained professional

process server in the business of describing and identifying recipients of service are

therefore required and expected to have sufficient knowledge of the variances in gender

and age through analysis, as well as distinctions in physical features to ensure proper

identification and service on the correct individual. It stands to reason therefore that clear

and unambiguous features would be detailed by the server in order to eliminate any doubts

about service. Here, Schultz’s Affidavit failed to properly identify the person allegedly

served, creating further suspicion as to if service was properly effectuated.

30. Schultz’s affidavit is further rebutted by the affidavit testimony of my relative

Pedro Rivers who averred that Isidro Pichardo does not reside at 9 Chatham Ct, Hicksville,

New York 11801.

31. Plaintiff further attested within another affidavit executed by Lauren

Wheeler that on October 26, 2023, he/she served the foregoing papers by mailing a true

copy of said Summons and 1303 Notice in this action on the Defendant Isidro Pichardo at 9

Chatham Ct, Hicksville, New York 11801 by first class mail in an envelope bearing the legend

Personal and Confidential and not indicating on the outside of the envelop that the

communication is from an attorney or concerns an alleged debt.

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32. In my sworn denial affidavit, I averred that I do not reside at 9 Chatham Ct,

Hicksville, New York 11801, and I have not changed my address by notifying the

Commissioner of the DMV of a change in my address as required by Vehicle and Traffic Law

§ 505(5).

33. In a challenge to service of process, the fact that a defendant has received

prompt notice of the action is of no moment (see, e.g., De Zego v Donald F. Bruhn, M. D., P.

C., 67 N.Y.2d 875). Notice received by means other than those authorized by statute does

not bring a defendant within the jurisdiction of the court (see, Feinstein v Bergner, 48 N.Y.2d

234,241; McDonald v Ames Supply Co., 22 N.Y.2d 111, 115, supra).

34. The fact that Defendant received actual notice of the action through

solicitations by law firms providing opportunity for Defendant to defend herself is not

proper service under CPLR § 308(1). (See Raschel v Rish, 69 NY2d 694, 697

[1986]; Merchants Ins. Group v Coutrier, 59 AD3d 602 [2009]; County of Nassau v

Letosky, 34 AD3d 414 [2006]).

35. It is well settled, as in Winters V Albany Executive House Apts., 102 AD2d

985, 985 [1984]) that a Defendant need only show that it did not personally receive actual

notice of the pending lawsuit in time to defend, therefore the question of a “reasonable

excuse” is not relevant in this matter.

36. Notwithstanding these clear discrepancies and defects within the Process

Servers Affidavits, the Court should take Judicial Notice and consider applying the principle

of falsus in uno, falsus in omnibus and thus determine the Process Servers Affidavits of

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Service to be devoid of credibility and without evidentiary merit. See DiPalma v State of

New York, 90 AD3d 1659, 1660 [4th Dept 2011]).

37. The doctrine of falsus in uno allows the trier of fact to disregard, in part or in

whole, the testimony of a witness who has willfully testified falsely as to any material fact

(see, e.g., DiPalma v State of New York, 90 AD3d 1659, 1660 [4th Dept 2011]). The doctrine

is based upon the principle that one who testifies falsely about one material fact may well

have testified falsely about everything. Assuming the doctrine is applicable herein, the

Process Servers Affidavits should not be considered.

38. Based on the above clear inconsistencies and apparent fabricated claims by

Plaintiff and its agents, it is within reason to conclude that the Affidavits of Service by the

above Process Server are insufficient to establish service as a matter of fact and law, as it

appears that the alleged service as purported by this Process Server amounts to an

unsavory and unethical “sewer service” scheme, whereby a process server willfully discards

court papers and claims they were duly served by recording a fictitious date and time of

service in the log and in the court’s affidavits of service. (Mem of Senator Martin J. Knorr,

Process Serving Abuse "Sewer Service," 1986 NY Legis Ann, at 180; Mem of NYS Dept of

Law, July 15, 1986.). The practice of filing false affidavits of service is an attempt to deprive

Defendants of their day in court and lead to a default. (See Matter of Barr v Department of

Consumer Affairs, 70 NY2d 821, 822 [1987]).

39. Due to Defendant’s non-conclusory denial of service, a traverse hearing is at

best warranted and it is the burden of Plaintiff to establish jurisdiction over Defendant by a

preponderance of the evidence. (See Skyline Agency v Ambrose Coppotelli, Inc.,117 A.D.2d

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135, 139 [2d Dept 1986]; see also Laurenzano v Laurenzano,222 A.D.2d 560, 561 [2d Dept

1995].).

40. "Ordinarily, a process server’s affidavit of service establishes a prima facie

case as to the method of service and, therefore, gives rise to a presumption of proper

service" (Wells Fargo Bank, NA v Chaplin, 65 AD3d at 589; see Washington Mut. Bank v Holt,

71AD3d at 670). Where there is a sworn denial that a defendant was served with process,

the affidavit of service is rebutted and the plaintiff must establish jurisdiction at a hearing

by a preponderance of the evidence (see Wells Fargo Bank, NA v Chaplin, 65 AD3d at 589).

41. In order to warrant a hearing on the issue of service, a defendant must swear

to detailed and specific facts to rebut the statements in the process server's affidavit (see

US Natl. Bank Assn. v Melton, 90 AD3d 742, 743[2011]; Engel v Boymelgreen, 80 AD3d 653,

654 [2011]).

42. Again, it is well established that the burden of proving that personal

jurisdiction has been acquired over a defendant in an action rests with the plaintiff" (Wells

Fargo Bank, NA v Chaplin, 65 AD3d 588, 589 [2009]; see Washington Mut. Bank v Holt, 71

AD3d 670 [2010]). At best, Defendant is entitled to dismissal of this action, alternatively, a

traverse hearing on the issue of service.

CPLR 308(2) or (4)

43. Pursuant to CPLR 308 (2), service of process may be made "or by mailing the

summons by first class mail to the person to be served at his or her actual place of business

in an envelope bearing the legend "personal and confidential" and not indicating on the

outside thereof, by return address or otherwise, that the communication is from an

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attorney or concerns an action against the person to be served, such affixing and mailing to

be effected within twenty days of each other"

44. Pursuant to CPLR 308 (4), service of process may be made "or by mailing the

summons by first class mail to the person to be served at his or her actual place of business

in an envelope bearing the legend "personal and confidential" and not indicating on the

outside thereof, by return address or otherwise, that the communication is from an

attorney or concerns an action against the person to be served, such affixing and mailing to

be effected within twenty days of each other" only where the alternate methods of

personal service provided for in CPLR 308 (1) or (2) "cannot be made with due diligence"

(CPLR 308 [4]).

45. Service pursuant to CPLR 308 (4) may be used only where personal service

under CPLR 308 (1) and (2) cannot be made with due diligence (see Lemberger v Khan, 18

AD3d 447 [2005]).

46. Since the statute does not define "due diligence," it has been interpreted

and applied on a case-by-case basis (see Estate of Waterman v Jones, 46 AD3d 63, 66

[2007]). The "due diligence" requirement may be met with "a few visits on different

occasions and at different times to the defendant's residence or place of business when the

defendant could reasonably be expected to be found at such location at those times" (id. at

66; see Wells Fargo Bank, N.A. v Cherot, 102 AD3d 768 [2013]; Lemberger v Khan, 18 AD3d

447 [2005]).

47. Here, the process server did not visit Defendants residence or place of

business on different occasions and at different times. The process server Richard Schultz

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and Lauren Wheeler both averred that personal service and first class mailing of the

summons, complaint, certificate of merit, 1303 Notice-Help, RPAPL Sect 1303 Notice were

served on Defendant at 9 Chatham Ct, Hicksville, New York 11801.

48. I have averred in my sworn denial affidavit swearing to specific facts

rebutting both affidavits of service that I do not reside at 9 Chatham Ct, Hicksville, New York

11801 and have not changed my New York address by notifying the Commissioner of the

DMV of a change in my address as required by Vehicle and Traffic Law § 505(5).

49. Indeed, the Court of Appeals has stated that "in determining the question of

whether due diligence has been exercised, no rigid rule could properly be prescribed"

(Barnes v City of New York, 51 NY2d 906, 907 [1980]).

50. As a general matter, the "due diligence" requirement may be met with "a

few visits on different occasions and at different times to the defendant's residence or place

of business when the defendant could reasonably be expected to be found at such location

at those times" (Estate of Waterman v Jones, 46 AD3d at 66; see Deutsche Bank Natl. Trust

Co. v White, 110 AD3d at 760).

51. Clearly, the process server made no attempts to visit Defendants New York

residence or place of business on different occasions and at different times. Plaintiff has not

demonstrated prima facie by submitting any affidavit of process server demonstrating that

visits were made to the homeowner’s residence on different occasions and at different

times, when the homeowner could reasonably have been expected to be found at that

location (see JP Morgan Chase Bank, N.A. v Baldi, 128 AD3d 777 [2015]; Lemberger v

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Khan, 18 AD3d 447, 447-448 [2005]; see generally Estate of Waterman v Jones, 46 AD3d at

65).

52. The process server also failed to describe in detail his unsuccessful attempt

to obtain an employment address for the homeowner (see JP Morgan Chase Bank, N.A. v

Baldi, 128 AD3d 777 [2015]; cf. Leviton v Unger, 56 AD3d 731, 732 [2008]; County of Nassau

v Long, 35 AD3d 787, 788 [2006]).

53. "For the purpose of satisfying the `due diligence' requirement of CPLR 308

(4), it must be shown that the process server made genuine inquiries about the defendant's

whereabouts and place of employment" (Estate of Waterman v Jones, 46 AD3d 63, 66

[2007]; see McSorley v Spear, 50 AD3d at 654; cf. Krisilas v Mount Sinai Hosp., 63 AD3d 887,

889 [2009]).

54. Here, the process servers failed to show that due diligence requirements

were satisfied pursuant to CPLR 308 (1)(2)(4). It is uncertain how services of process were

attempted at that address in Hicksville.

55. The lack of service discussed herein raises a jurisdictional issue as to whether

or not the Court properly acquired jurisdiction over the person of the Defendant.

56. There are three (3) jurisdiction elements that must be satisfied in order for

the court to render a valid order or judgment. These elements are: (i) proper

commencement of the action; (ii) proper service of process on defendant; and (iii) proper

basis of jurisdiction over the person or property involved in the action. Failure of one of

these three elements will mean a failure of personal jurisdiction.

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57. As explained above, the Plaintiff failed to serve the Notice pursuant to RPAPL

§ 13041 and the Summons and Complaint upon the person of the Defendant, or by mail at

the place of residence or business of the Defendant or by affixing the papers to the door of

Defendant’s residence (See Exhibit “A” and “B”). The law remains unequivocal that, under

the circumstances disclosed herein, the burden of proving jurisdiction is upon the party who

asserts it. Unicon Mgt. Corp. v. Koppers Co., 250 F. Supp. 850 (S.D.N.Y. 1966); Saratoga

Harness Racing Ass’n. v. Moss, 26 A.D.2d 486, 275 N.Y.S.2d 888 (3d Dep’t 1966), aff’d. 20

N.Y.2d 733, 283 N.Y.S.2d 55 (1967).

58. New York law dictates that a civil action is generally commenced, and

jurisdiction acquired by service of a summons (See CPLR § 304). Where there is no evidence

of service or where there is the appearance of improper service, no jurisdiction is acquired

by the court. While there are a number of methods by which a summons and complaint

may be served upon a natural person, the most common forms of service are: (a) personal

delivery to a defendant’s place of residence or business, (b) service by mail, and (c) affixing

a Summons to a defendant’s dwelling at a reasonably noticeable location presuming that

the process server failed to sufficiently attempt personal service pursuant to CPLR §

308(1)(2) or CPLR § 308(4). The methods claimed to have been utilized at bar to effectuate

service were personal service and discretion and by first class mail (See Affidavits of Service,

Exhibit “A” and “B.”).

1
RPAPL § 1304 provides that a borrower must be given a notice at least 90-days before a lender or assignee of
a mortgage commence a legal foreclosure action. See Home Equity Theft Prevention Act (Real Property Law §
265-a)

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59. The question which must be addressed in the case at hand is whether the

court obtained personal jurisdiction over Defendant in a manner consistent with standards

of due process. It is axiomatic that an order or judgment rendered in the absence of

personal jurisdiction is void as to that party and may be attacked either directly or

collaterally (CPLR § 5015 [a] [4]; Royal Zenith Corp. v Continental Ins. Co., 63 N.Y.2d 975).

60. Minimum standards of due process require that an assertion of personal

jurisdiction over an individual must be predicated upon a proper jurisdictional basis,

adequate notice, and an opportunity to be heard (World-Wide Volkswagen Corp. v

Woodson, 444 US 286; Mullane v Central Hanover Trust Co., 339 US 306).

61. Here, Plaintiff failed to properly effect personal delivery of the summons

upon the Defendant and thus failed to meet its burden of establishing that such service was

effected (see, Anton v Amato, 101 AD2d 819 [2d Dept 1984]; De Zego v Donald F. Bruhn, P.

C., 99 AD2d 823,supra). It matters not whether, as Plaintiff may imply, Defendant may have

become aware of the pendency of the action (see, Markoff v South Nassau Community

Hosp., 61 N.Y.2d 283; McDonald v Ames Supply Co., 22 N.Y.2d 111).

62. Due process requires that notice be given in a manner reasonably calculated

under all the circumstances to apprise the parties of the pendency of the action and to

afford them an opportunity to be heard (Mullane v Central Hanover Trust Co., supra).

63. Notice of the suit received by means other than those provided in the CPLR

cannot serve to confer jurisdiction over a defendant (Feinstein v Bergner, 48 N.Y.2d 234).

64. Where a court determines that a defendant rebutted the presumption of

service, which is ordinarily established through a process server's affidavit of service, and

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sets the matter down for a hearing, the burden at the hearing is on the plaintiff to establish

by a preponderance of the evidence that personal jurisdiction was acquired over the

defendant (see Aurora Loan Servs., LLC v Gaines, 104 AD3d 885, 886 [2013]; Gray v

Giannikios, 90 AD3d 836, 837 [2011]; Engel v Boymelgreen, 80 AD3d 653, 655

[2011]; Goralski v Nadzan, 89 AD3d 801, 801 [2011]).

65. Thus, the attempt to acquire jurisdiction by service of process in this case did

not satisfy due process.

DUAL TRACKING PROHIBITION

66. Foreclosure Abuse Prevention Act (“FAPA”) signed into law by Governor

Hochul on December 30, 2022. FAPA retroactively applies to the case at bar, and therefore

bars the adjudication of this action. "It is settled that constitutionally protected property

interests are created, and their dimensions are defined by existing rules or understandings

that stem from an independent source such as state law" (Alliance of American Insurers v

Chu, 77 NY2d 573 [1991][internal quotation marks and citations omitted]).

67. The retroactivity of FAPA statute takes precedence where no judgment has

been obtained. Defendant PHH have not obtained any vested property rights in the orders

or judgments of the court during the period they are subject to review by a higher court

(see Boardwalk & Seashore Corp v Murdock, 286 NY 494 [1941]; Atlantic Beach Towers

Construction Co, Inc v Michaelis, 21 AD2d 875 [2d Dept 1964]).

68. The legislature's intent in enacting the FAPA was "to clarify the meaning of

existing statutes, codify correct judicial applications thereof, and rectify erroneous judicial

interpretations thereof" (2021 NY S.B. 5473D).

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69. Similarly, the Assembly Memorandum in Support of Legislation states

enactment of FAPA was necessary "to clarify the existing law and overturn certain court

decisions to ensure the laws of this state apply equally to all litigants, including those

currently involved in mortgage foreclosure actions" (NY State Assembly Bill A7737B at

Sponsor Memo, Purpose, and Intent of Bill).

70. Foreclosure prevention acts typically aim to protect homeowners from unfair

or abusive practices by lenders during the foreclosure process. Common provisions may

include:

- Mandatory Mediation or Settlement Conferences: Requiring lenders and

borrowers to participate in mediation or settlement conferences to explore

alternatives to foreclosure.

- Notification Requirements: Mandating that lenders provide clear and timely

notifications to borrowers about their rights, the foreclosure process, and any

available assistance programs.

- Protections Against Dual Tracking: Prohibiting the practice of dual tracking,

where lenders simultaneously pursue foreclosure while also considering a

borrower's application for a loan modification.

- Anti-Fraud Measures: Implementing measures to prevent fraudulent practices

related to foreclosure proceedings.

- Extensions of Foreclosure Timelines: Allowing for extensions of foreclosure

timelines in certain circumstances to give homeowners more time to explore

alternatives.

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- Legal Assistance for Homeowners: Providing resources or assistance to

homeowners facing foreclosure, including access to legal counsel. New York

Foreclosure Abuse Prevention Act (A7737B)

71. On January 27, 2023, Isidro Pichardo commenced a loss mitigation

application with the Plaintiff for the sale of the property as an alternative to foreclosure of

the property. A copy of the email confirmation of Defendant’s completed application is

attached hereto as Exhibit “E.”

72. On January 31, 2023, Plaintiff sent an email notification regarding review of

Defendant's application. A copy of the email confirmation is attached hereto as Exhibit “F.”

73. On April 7, 2023, Plaintiff established a property damage portal for

Defendant to upload information regarding the damage to the subject property2. A copy of

the email notification is attached hereto as Exhibit “G,” and on June 22, 2023, Plaintiff

confirmed receipt of complete application from Defendant in lieu of foreclosure. A copy of

the email confirmation attached hereto as Exhibit “H.”

74. On February 19, 2023, the subject property was listed on the MLS through

the real estate company Genix Group, LLC in the amount of $250,000.00. A copy of the

listing agreement is attached hereto as Exhibit “I.”

75. Defendant has transferred and made payments to the Plaintiff in the amount

of $194, 519.00 towards the mortgage loan in satisfaction of debt obligation. Additionally, a

cash offer in the amount of $60,000.00 was received and payments made for the purchase

of the subject property applied towards the total balance of the debt obligation, totaling the

2
On January 31, 2021, the subject property was damaged by flooding. Insurance check in the amount of $194,
519.00 was issued, signed over and paid to the Plaintiff by Defendant in full satisfaction of the mortgage debt.

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amount of $251, 519.00 in full satisfaction of the debt obligation. A copy of the Executed

Check and contract of sale are attached hereto as Exhibit “J” and “k.”

76. Plaintiff Is barred from commencing or continuing this instant foreclosure

action pursuant to FAPA (A7737B), CFPB 12 CFR §1024.41(d), Banking Law § 6(g), 12 U.S.C. §

1701(j)(3), CPLR 3408(f)(2), CPLR 3408(1), (j), (k), and (1), NYCRR § 202.12-a, 3 NYCRR 419.2,

3 NYCRR 419.3. These statutes prohibit dual tracking3 by the Plaintiff where full payment

has been made in full satisfaction of the debt obligation prior to the commencement of the

foreclosure action.

DISMISSAL PURSUANT TO CPLR 3211(a)(1)

77. In order for evidence to qualify as "documentary," it must be unambiguous,

authentic, and undeniable (Fontanetta v John Doe 1, 73 AD3d 78, 84-86 [2010]). Neither

affidavits, deposition testimony, nor letters are considered "documentary evidence" within

the intendment of CPLR 3211 (a) (1) (see Suchmacher v Manana Grocery, 73 AD3d 1017

[2010]; Fontanetta v John Doe 1, 73 AD3d at 85-87).

78. As Professor Siegel has noted in his commentary to CPLR 3211, there is "a

paucity of case law" as to what is considered "`documentary' under [CPLR 3211 (a) (1)]"

(Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at

21-22). From the cases that exist, it is clear that judicial records, as well as documents

reflecting out-of-court transactions such as mortgages, deeds, contracts, and any

other papers, the contents of which are "essentially undeniable," would qualify as

3
"D

Case Info

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Joseph Lorintz Track Judge’s New Case

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December 02, 2023

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September 27, 2023

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