Motion-Secondary: Jpmorgan Chase Bank, National Association v. Donna D. Jones a/k/a Donna Jones, Rlf Mortgage Corporation, John Doe, Said Name Being Fictitious, It Being The Intention Of Plaintiff To Designate Any And All Occupants Of Premises Being Foreclosed Herein, And Any Parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises

On February 23, 2018 a Motion-Secondary was filed involving a dispute between Jpmorgan Chase Bank, National Association, and Donna D. Jones A K A Donna Jones, John Doe, Said Name Being Fictitious, It Being The Intention Of Plaintiff To Designate Any And All Occupants Of Premises Being Foreclosed Herein, And Any Parties, Corporations Or Entities, If Any, Having Or Claiming An Interest Or Lien Upon The Mortgaged Premises, Rlf Mortgage Corporation, for Real Property - Mortgage Foreclosure - Residential in the District Court of Suffolk County.

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SUPREME COURT OF THE STATE OF NEW YORK rw 4419
COUNTY OF SUFFOLK
..--------_.-----------------------------------------------------------X
JPMorgan Chase Bank, National Association, Index No. 603639/2018

Plaintiff,
AFFIRMATION IN OPPOSTION
- against - TO PLAINTIFF'S MOTION FOR
DEFAULT JUDGMENT AND
Donna D. Jones a/lda Donna Jones, RLF Mortgage ORDER OF REFERENCE AND
Corporation, and "JOHN DOE", said name being fictitious, it IN SUPPORT OF

being the intention of Plaintiff to designate any and all DEFENDANT'S CROSS
occupants of the premises being foreclosed herein, and any MOTION TO DISMISS OR
parties, corporations or entities, ifany, having or claiming an ALTERNATIVELY EXTEND
interest or lien upon the mortgaged premises, TIME TO FILE AN ANSWER
AND SCHEDULE TRAVERSE
Defendants. HEARING

RONALD D. WEISS, an attorney duly admitted to practice before this Court affirms

under penalties of perjury as follows:

1. I am the newly retained attorney for the Defendant Donna Jones (the "Defendant")

in this foreclosure action by JPMorgan Chase Bank, National Association, (the "Plaintiff") against

the property located at 469 North Alleghany Avenue, Lindenhurst, NY 11757 (the "Property").

2. I am filing this Affirmation in opposition to Plaintiff's Motion for Default

Judgement and Order of Reference ("Plaintiff's Motion") and in support of the Cross Motion to

(1) Dismiss or Alternatively Extend Time to File an Answer and Schedule Traverse Hearing

("Defendant's Motion").

3. The basis of the opposition to the Plaintiff's Motion and support for the Defendant's

Cross-Motion is as follows:

i. Plaintiff Failed to effectuate service pursuant to CPLR § 308;

ii. Defendant Has Reasonable Excuse for Extension to File an Answer;

iii. Defendant's Jurisdictional Defenses are Not Waived;

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iv. Defendant's Meritorious Defenses Should Be Considered on the Merits of
Plaintiff's Lack of Standing.

v. Plaintiff Fails To Properly Lay A Foundation For The Use Of The Business
Records Exception To The Hearsay Rule

LOAN DOCUMENTS

4. This action pertains to the consolidated loan totaling $260,000.00 pursuant to the

1st
CEMA agreement dated April 25, 2012 which consolidated the Mortgage of $ 253,251.07 dated

January 11, 2007 extended to the Defendant from MERS as Nominee for Continental Home Loans

2nd
Inc. recorded on January 19, 2007 with the MOrtgage of $6,748.93 dated April 25, 2012,

extended to the Defendant by JPMorgan Chase Bank, N.A., recorded on April 25, 2012.

5. The CEMA agreement dated April 25, 2012 with consolidated Note and Mortgage

(Annexed hereto as Exhibit A is the CEMA Agreement).

2nd
6. The MOrtgage of $6,748.93 dated April 25, 2012, extended to the Defendant by

2nd
JPMorgan Chase Bank, N.A. (Annexed hereto as Exhibit B is the Note and Mortgage).

1st
7. Mortgage of $ 253,251.07 dated January 11, 2017 extended to the Defendant

from MERS as Nominee for Continental Home Loans Inc. recorded on January 19, 2007

1St
(Annexed hereto as Exhibit C is the Note and Mortgage).

8. The Assignment dated January 11, 2007, recorded on January 19, 2007 transferred

the mortgage from Mortgage Electronic Registration Systems, Inc., as Nominee for Continental

Home Loan, Inc. to JPMorgan Chase Bank, N.A. (the "Assigmnent") (Annexed hereto as Exhibit

D is a copy of the Assignment).

9. A loan modification agreement dated August 1, 2015 executed by the Defendant

on July 10, 2015 was extended by JPMorgan Chase Bank, N.A. for the amount of $250,946.305.

(Annexed hereto as Exhibit E is the Loan Modification Agreement).

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PROCEDURAL HISTORY

10. On or about February 23, 2018 Plaintiff commenced the instant action by filing a

Summons & Complaint. (Annexed hereto as Exhibit F isa copy of the Summons & Complaint).

11. Pursuant to Plaintiff's affidavit of service and pursuant to Defendant's

accompanying sworn affidavit, Defendant attests to never being served with the Summons and

Complaint and therefore did not answer the Complaint in not being given the opportunity to

answer.

12. Plaintiff now brings a Motion for Default Judgment and Order of Reference.

L PLAINTIFF FAILED TO EFFECTUAT_E SERVICE UPON DEFENDANT
PURSUANTTOCPLR308

13. As stated in Defendant's accompanying affidavit Donna Jones denies ever

receiving the Summons and Complaint. Plaintiff's Affidavit of Service claims to have served the

Defendant Donna Jones on March 17, 2018 at 10:09 a.m. at the Property address. (Annexed

hereto as Exhibit G is the Plaintiff's Affidavit of service).

14. As sworn by the Defendant and by comparison of the affidavit of service against

Defendant's physical description pursuant to Defendant's Driver's License (Annexed hereto as

Exhibit H is Defendant's Driver's License issued in the same year of alleged service) there are

clear discrepancies with the alleged physical description of the Defendant as follows:

Affidavit of Service:

" - -
Color of hair "shaved head", AS 45", Height 5'4 5'7, Weight 150 174

Defendant's Driver's License and sworn affidavit:

Color of hair - black with Age Height Weight 220
braids, 56, 5'7,

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15. Clearly, the physical description described in the affidavit of service indicates

distinct differences against Defendant's actual physical description which should be addressed.

The alleged servicer, Andrew f. Ceponis describes Defendant as having a "shaved head", being

45years old and 1150 - 174 lbs.
approximately weighing

16. However, Defendant's Driver's License which was issued in 2018, within the same

year of the alleged service, provides a completed different physical description of the Defendant

as having a head full of braids which she has worn for years (stark difference), being 56 years old

(difference of 9 years than described), and Defendant's accompanying sworn affidavit attests as

weighing 2201bs, which she has consistently weighed for the last 15 years.

17. The discrepancies in the affidavit of service is not slight nor are they attributable

to errors but are extreme differences which show that Defendant was never served as is claimed

by the Plaintiff's process server.

18. The Defendant denies service under CPLR 308(1) and 308(2) in that the defective

description proves defective service in failing to serve. CPLR 308(2) required "proof of service

shall identify such person of suitable age and discretion. Here the Plaintiff failed to serve Donna

Jones and failed to describe her in a manner that resembles her.

19. Since the service of the summons and complaint Defendant has not received service

of the summons and complaint at her "dwelling place or usual place of abode", and therefore,

service has not been completed pursuant to CPLR 308.

20. Moreover, Plaintiff never served Defendant by mail with the Summons and

Complaint.

21. Accordingly, the Court lacks jurisdiction over the Defendants due to Plaintiff

failure to effectuate proper service.

22. Courts in this jurisdiction held that itis "axiomatic that the failure to serve process

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in an action leaves the court without personal jurisdiction over the defendant, and all subsequent

void."
proceedings are thereby rendered null and McMullen v. Arnone, 79 A.D.2d 496, 499, 437

N.Y.S.2d 373 (2nd Dept. 1981). Moreover, tenants who reside in the premises subject to a

foreclosure action are necessary parties to said action and must allbe served pursuant toNY CPLR

308. See, Polish Nat. Alliance v. White Eagle Hall Co., 98 A.D.2d 400, 404, 470 N.Y.S.2d 642

(2nd Dept. 1983), Flushing Sav. Bank v. CCN Realty Corp., 73 A.D.2d 945, 424 N.Y.S.2d 27 (2nd

Dept. 1980).

23. NY CPLR 308(1) provides that personal jurisdiction is obtained over the defendant

ifthe summons is delivered within the state to the person to be served. NY CPLR 308(2) provides

that the person might be served by delivery of the summons to the person of suitable age and

discretion and subsequent mailing of the papers to the person's dwelling or usual place of adobe.

See N.Y. C.P.L.R. 308(1) and 308(2).

24. CPLR 308(2) requires strictcompliance with the service requirements and even ifthe

defendant becomes aware of the pending action that would not be sufficient to cure service defect. See,

(2nd
Banker's Trust Co. of Cal. N.A. v. Tsoukas, 303 A.D.2d 343, 756 N.Y.S.2d 92 Dept. 2003); B_an_k

of America National Trust & Savings v. Herrick, 233 A.D.2d 35, 650 N.Y.S.2d 754 (2nd Dept. 1994);

Raschel v. Rish, 69 N.Y.2d 694 (1986); Feinstein v. Bergner, 48 N.Y.2d 234 (1979).

25. In this case, both methods of service under CPLR 308(1) and 308(2) were improper,

failing to provide adequate notice to Defendants that the action was pending against them.

26. Defective Service of process is caused to dismiss this action under CPLR

3211(8)(e) which states:

(a) Motion to dismiss cause of action. A party may move forjudgment

dismissing one or more causes of action asserted against him on the ground
that:

(8) the court has no jurisdiction of the person of the defendant;

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27. Based on the aforementioned major discrepancies in the affidavit of service,

Defendant has provided a sworn non-conclusory denial of service with sufficient specificity as to

call into dispute the veracity of the affidavit of service. NYCTL 1998-1 Trust v. Rabinowitz, 7

(1st
A.D.3d 459, 460 Dep't 2004); Finkelstein Newman Ferrara LLP. V. Manning, 67 A.D. 3d 538

(1st
Dep't 2009). As such, the numerous points that are disputed within the affidavit of service can

only properly be resolved by a traverse hearing. Ananda Capital Partners, Inc. v. Stav Electrical

(1st
Systems, 301 A.D. 2d 430 Dep't 2003).

28. In LePartner & Associates, LLP v. Horowitz, the defendants challenged the

veracity of their alleged service by providing affidavits detailing their whereabouts at the time of

alleged service. 24 Misc. 3d 187. The defendants denied being served process at their homes and

specified in their affidavit that they in fact would have been home at the time and date of alleged

service. Id. at 191. The Court found that the combination of their denials of service with the

specificity of their affidavit, the validity of service was called into question and a traverse hearing

was required. Id.

29. Where there are material discrepancies, in an affidavit of service a Court is

compelled to conduct a traverse hearing to determine the validity of the affidavit of service

and whether its conclusion shows that jurisdiction was obtained against the Defendant.

30. Pursuant to the Defendant's sworn affidavit, the first she learned of this foreclosure

action was receipt of the letter by mail by the Court informing of the Foreclosure Settlement

Conference.

31. Plaintiff did not serve the Defendant within 120 days of filing the Summons &

Complaint and did not request an extension of time to serve from the court. Given that Plaintiff

failed to complete service, the action is inherently defective and needs to be dismissed.

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32. Plaintiff has an obligation to serve the Defendant or to seek alternate service

methods. Prior to and following Defendant's order to show cause, Plaintiff has made no effort to

properly locate and serve Defendant Michael Gay as required by CPLR 308.

33. Therefore, based on defective service the Defendant's Motion to Dismiss should

be granted in that the Plaintiff's foreclosure action should be dismissed or in the alternative a

traverse hearing scheduled.

IL DEFENDANT HAS REASONABLE EX_CUSE FOR EXTENSION TO FILE AN
ANSWER

34. CPLR 2004. Extensions of time generally. Except where otherwise expressly

prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any

act, upon such terms as may be just and upon good cause shown, whether the application for

extension is made before or after the expiration of the time fixed.

35. Pursuant to §5015 (a)(1) a judgment can be setaside based upon "excusable

default"
and therefore this Court should vacate the default judgment based on lack of notice.

36. CPLR 5105 (1)(a) which deals with relief from judgment or order states:

(a) On motion. The court which rendered a judgment or order may relieve
a party from it upon such terms as may be just, on motion of any
interested party with such notice as the court may direct, upon the
ground of:

1. excusable default, if such motion is made within one year after service
of a copy of the judgment or order with written notice of its entry upon
the moving party or, if the moving party has entered the judgment or

order, within one year after such entry;

(2nd
37. As stated Swensen v MV Transp., inc., 89 A.D. 924; 933 NYS2d 96 Dept. 2011)

to vacate a default in opposing summary judgment motion, the defaulting party must demonstrate

under CPLR 5015(a)(1) a reasonable excuse for the defaults in opposing the motion and potentially

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meritorious opposition to the motion. As stated in Swensen:

To vacate his default in opposing the motion of the defendants MV
Transportation, Inc., and Jeffrey Salley (hereinafter together the

appellants), the plaintiff was required to demonstrate a reasonable
excuse for the default in opposing the motion and a potentially
meritorious opposition to the motion (see CPLR 5015 [a] [1];
Ogunmovin v 1515 Broadway Fee Owner, LLC, 85 AD3d 991

[2011]; Legaretta v Ekhstor, 74 AD3d 899 [2010] ; Rivera v Komor,
69 AD3d 833 [2010]; Nowell v NYU Med. Ctr., 55 AD3d 573
[2008]). The determination of what constitutes a reasonable excuse
lies within the Supreme Court's discretion (see White v Incorporated
Vil. of Hempstead, 41 AD3d 709, 710 [2007]), and the Supreme
Court has the discretion to accept law office failure as a reasonable
excuse (see CPLR 2005) where that claim is supported by a
credible"
"detailed and explanation of the default or defaults at issue

(Henry v Kuveke, 9 AD3d 476, 479 [2004]).

38. The determination of what constitutes reasonable excuse for default lies within the

trial court's discretion. As in Swenson, the Court stated:

"Here, the plaintiff s counsel provided a detailed and credible
explanation for his default in this matter, which included various
acts of misconduct and deception by his former associate attorney
who worked on theplaintiff s matter. The plaintiff also demonstrated
appellants'
a potentially meritorious opposition to the motion for

summary judgment.

704(2nd
Also see Eastern Sav. Bank, FSB v Charles, 103 46 A.D.3d 683; 959 N.Y.S.2d

(2nd
Dept 2013); Green Apple Mgt. Corp. v Aronis, 46 A.D.3d 669, 865 N.Y.S.2d 355

(2nd
2008; Levi v. Levi. 46 A.D.3d 519, 520, 848 N.Y.S.2d 228 Dept 2007).

39. Here, as Plaintiff failed to effectuate service, Defendant should be permitted to file

an Answer and therefore this Court should consider and accept Defendant's Proposed Answer

(Annexed hereto as Exhibit I is Defendant's Proposed Answer).

40. Pursuant to the Defendant's accompanying affidavit, she attended the Foreclosure

Settlement Conference held on June 5, 2018, and therefore, the Defendant should not be considered

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as defaulted. (Annexed hereto as Exhibit J is the E-Court Appearance Detail).

41. Therefore, given the fact that notice of entry has not been served and the Plaintiff

would not be prejudiced by allowing Defendant to interpose an Answer, Plaintiff's Motion should

be denied, and Defendant's Cross Motion granted.

III. DEFENDANT'S JURISIDICTIONAL DEFENSES ARE NOT WAIVED

42. Because the Defendant did not answer the Summons & Complaint and dispute

service of process, they did not waive their rights to assert jurisdictional defenses including lack

of subject matter jurisdiction.

43. The Defendant was never served and was not made aware of this foreclosure action

at the time of the alleged service of the Summons and Complaint and therefore did not answer the

complaint, however the Defendant does not waive jurisdictional defenses by not answering.

44. Cases hold that waiver of such rights which only occurs when an answer was filed

which does not contain certain defenses. In the matter of Deutsche Bank Nat. Trust Co. v. McRae

(27 Misc.3d 247, 894 N.Y.S.2d 720, 2010 N.Y. Slip Op. 20020), the Plaintiff brought a motion

for an order of reference where the defendant had failed to interpose an answer. The Plaintiff

brought a motion to reargue after the motion for an order of reference was denied without prejudice

as the Plaintiff had failed to submit evidence of proper assignment. Upon reargument, the court

affirmed itsprior order and held that:

"Although recent decisions by the Second Department have held that a defendant
waives standing where itis not raised in the answer or pre-answer motion to dismiss (see,
[2nd
Wells Fargo Bank Minn. V Mastropaolo, 42 A.D. 3d 239, 244, 837 N.Y.S. 2d 247
[2nd
Dept. 2007]; HSBC Bank USA v. Dammond, 59 A.D.3d 679, 680, 875 N.Y.S.2d 490

Dept.2009]; Countrywide Home Loans, Inc. v. Delphonse, 64 A.D.3d 624, 625, 883
[2nd
N.Y.S.2d 135 Dept.2009])), those cases are distinguishable. In both Mastropaolo and

Delphonse, the defendants filed answers containing either counterclaims or affirmative
defenses without asserting a standing defense [see, Mastropaolo 42 A.D. 3d at 240, 837
N.Y.S. 2d 247; Delphonse, 64 A.D. 3d at 625, 883 N.Y.S. 2d 135]. In so doing, the

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defendants acknowledged that the plaintiff was a proper party for the prosecution of these
foreclosure actions. By stark contrast, Defendant has not appeared or filed an answer
standing..."
and therefore has not waived the right to challenge Plaintiff's (emphasis

added)

45. In the similar matter of Citigroup Global Markets Realty Corp. v. Randolph

Bowling ( 25 Misc.3d 1244(A), 2009 WL 4893940 (N.Y.Sup.)) the Plaintiff here also moved for

an Order of Reference where the Court raised the question of service and standing in the absence

of any appearance by the defendant and dismissed the action without prejudice, sua sponte.

46. Here, due to the serious jurisdictional objections in Plaintiff's failure to effectuate

service, Defendant's jurisdiction defenses are not waived.

47. Therefore, Plaintiff's Motion should be denied and Defendant's Cross-Motion to

extend time to file an Answer should be granted.

IV. DEFENDANTS MERITORIOUS DEFENSES SHOULD BE CONSIDERED
ON THE MERITS OF PLAINTIFF'S LACK OF STANDING

48. In order to pursue a residential foreclosure action, the Plaintiff needs to show that

ithas standing.

49. The Defendant did not waive standing as a meritorious defense by being prejudiced

in not being served with the Complaint in order to file an answer to assert meritorious defenses.

50. "Standing requires an inquiry into whether a litigant has 'an interest . . . in the

lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant's

request'"
(Midland Mortg. Co. v Imtiaz, 110 AD3d 773, 773 [2d Dept. 2013], quoting Caprer v

Nussbaum, 36 AD3d 176, 182 [2d Dept. 2006] ; see also U.S. Bank Natl. Assn. v Sharif 89 AD2d

723, 724 [2d Dept. 2011] ["foreclosure of a mortgage may not be brought by one who has no title

to it"], quoting Kluge v Fugazy, 145 AD2d 537, 538 [2d Dept. 1988]). "In a mortgage foreclosure

action, a plaintiff has standing where it isboth the holder or assignee of the subject mortgage and

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commenced"
the holder or assignee of the underlying note at the time the action is (Imtiaz, 110

AD3d at 773, quoting Bank ofN.Y v Silverberg, 86 AD3d 274, 279 [2d Dept. 2011]; Homecomings

Financial, LLC v Guldi, 108 AD3d 506, 507-08 [2d Dept. 2013] ; see U.S. Bank N.A. v Dellarmo,

94 AD3d 746, 748 [2d Dept. 2012]; U.S. Bank; N.A. v Collymore, 68 AD3d 752 [2d Dept.

2009). To show status as holder of the note, the plaintiff must show that ithad physical possession

of the note, with appropriate endorsements, at the time the action commenced (see UCC 3-104;

Dellarmo, 94 AD3d at 749-50; Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674

[2d Dept. 2007]).

Defective Affidavit of Plaintiff in Support of Their Motion for Order of Reference

51. Plaintiff seeks through the Affidavit of Gary Brunton dated September 13, 2019

Vice President of JPMorgan Chase Bank, National Association to supposed to attest to Plaintiff's

actual physical possession of the original loan documents. However, in said Affidavit he failsto

state whether the actual physical documents were kept by JPMorgan Chase Bank , and as of when

did such possession of the mortgage documents take place. Instead, Gary Brunton's Affidavit is

only reporting third hand as to what he believes are the facts pursuant to only "review of Chase's

records"
business but not as to the physical location of the loan documents and is without stating

that he actually saw and held the original loan documents. From Mr. Brunton's Affidavit it is

clear that he only prepared said affidavit without actually reviewing the loan records. Said affidavit

records"
only attests to reviewing "business which could be any sore of records other than the

mortgage loan documents. (Annexed hereto as Exhibit K is the Affidavit of Gary Brunton.)

52. Ms. Brunton's affidavit in paragraphs 2 and 4 indicates that he relied on a screen

shot of business records of Chase Bank.

53. Therefore, given the defective affidavit of plaintiff the Plaintiff's Motion should

be denied due to Lack of Standing and Defendant's Motion be granted.

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V. PLAINTIFF FAILS TO PROPERLY LAY A FOUNDATION FOR THE USE OF
THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE

54. There are two elements that must be satisfied in order for a business record to

qualify for an exemption from the rules of hearsay. The judge must find that the particular record

was made in the regular course of business and that itwas the regular course of such business to

make it, at the time of the act, transaction, occurrence or event, or within a reasonable time

thereafter.

55. The affidavit in which Plaintiff relies on in their Motion for Summary Judgment

contains a multitude of self-serving statements that are not independently verified. In that they do

not tell us what these records are, nor do they give us a time frame in which the event occurred

and the creation of the record which memorializes it.

56. Therefore, Plaintiff's Motion should be denied, and Defendant's Cross-Motion

should be granted.

CONCLUSION

WHEREFORE, the undersigned asks that the relief requested in the Plaintiff's Motion for

Default Judgment and Order of Reference be denied in its entirety and Defendant's Cross-Motion

be granted and for such other and further relief for the Defendant as this Court deems just and

equitable.

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Dated: November 12, 2019

Melville, New York

Yours, etc.

RONALD D. SS P.C.

Ro d D. Weis P.C.

Attorn ant

DONNA JONES
734 Walt Whitman Road, Suite 203

Melville New York 11747

Tel: (631) 271-3737

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Case Info

Judge

HOWARD HECKMAN Track Judge’s New Case

Case No.

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Document Filed Date

November 14, 2019

Case Filing Date

February 23, 2018

County

Parties

DI CARO, JOHN A Attorney for the Plaintiff
Donna D. Jones a/k/a Donna Jones Defendant
JOHN DOE, said name being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises Defendant
JPMorgan Chase Bank, National Association Plaintiff
RLF Mortgage Corporation Defendant
Ronald D. Weiss, P,C. Non Party
ROTH, GERALD C Attorney for the Defendant
WEISS, RONALD D. Attorney
WEISS, RONALD D. Attorney for the Defendant
SEAN WILLIAMS Attorneys for Plaintiffs
BARBARA DUNLEAVY Attorneys for Plaintiffs
ELLIS OSTER Attorneys for Plaintiffs
YALE MUROV Attorney
WARREN CLARK Attorney
BRENT SURGEONER Attorneys for Plaintiffs

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