Preview
FILED: KINGS COUNTY CLERK 06/12/2018 11:19 AM INDEX NO. 506027/2014
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 06/12/2018
FILED: KINGS COUNTY CLERK 06/12/2018 11:19 AM INDEX NO. 506027/2014
INDEX NO. 506027/2014
FILED: DOC.
NYSCEF KINGS157
NO. COUNTY CLERK 4 :5 P RECEIVED NYSCEF: 06/12/2018
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/20/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
:
JPMORGAN CHASE BANK, NATIONAL : Index No.: 506027/2014
ASSOCIATION, SUCCESSOR IN INTEREST BY :
PURCHASE FROM THE FEDERAL DEPOSIT :
INSURANCE CORPORATION AS RECEIVER OF : REPLY TO THE ANSWER &
WASHINGTON MUTUAL BANK F/K/A : COUNTERCLAIMS
WASHINGTON MUTUAL BANK, FA, SUCCESSOR :
IN INTEREST TO NORTH AMERICAN :
MORTGAGE COMPANY, :
:
Plaintiff, :
:
-against- :
PETER K. MCKENZIE; SHERREL FARNSWORTH :
A/K/A SHERREL A. FARNSWORTH; JPMORGAN :
CHASE BANK, N.A.; RAB PERFORMANCE :
RECOVERIES, LLC; AMERICAN EXPRESS BANK :
FSB, CAPITAL ONE BANK; CITY OF NEW YORK :
TRANSIT ADJUDICATION BUREAU; NEW YORK :
CITY ENVIRONMENTAL CONTROL BOARD; :
NYC DEPARTMENT OF FINANCE-PARKING :
DOE"
VIOLATIONS BUREAU; "JOHN AND "JANE :
DOE"
said names being fictitious, itbeing the intention :
of Plaintiff to designate any and all occupants of :
premises being foreclosed herein :
Defendants. :
Plaintiff JPMorgan Chase Bank, National Association, Successor in Interest by Purchase
from the Federal Deposit Insurance Corporation as Receiver of Washington Mutual Bank f/k/a
Washington Mutual Bank, FA, Successor in Interest to North American Mortgage Company
("Plaintiff'
("Plaintiff"), by and through itsattorneys, Parker Ibrahim & Berg LLC, and by way of its Reply
Counterclaims"
to the Answer & Counterclaims (the "Answer & Counterclaims") filed by Defendant Peter K.
(" Defendant"
McKenzie ("Defendant"), states as follows:
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FILED: KINGS COUNTY CLERK 06/12/2018 11:19 AM INDEX NO. 506027/2014
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 06/12/2018
1-2. Paragraphs 1 and 2 of the Answer & Counterclaims do not require a response. To
the extent a response is required, the allegations are denied
AS AND TO THE FIRST COUNTERCLAIM
13. The allegations contained in Paragraph 13 purport to assert conclusions of law to
which no response is required. To the extent a response is required, the allegations are denied.
AS AND TO THE SECOND COUNTERCLAIM
14. The allegations contained in Paragraph 14 purport to assert conclusions of law to
which no response is required. To the extent a response is required, the allegations are denied.
AS AND TO THE THIRD COUNTERCLAIM
15. The allegations contained in Paragraph 15 purport to assert conclusions of law to
which no response is required. To the extent a response is required, the allegations are denied.
AS AND TO THE FOURTH COUNTERCLAIM
16. The allegations contained in Paragraph 16 purport to assert conclusions of law to
which no response is required. To the extent a response is required, the allegations are denied.
AS AND TO THE FIFTH COUNTERCLAIM
17. The allegations contained in Paragraph 17 purport to assert conclusions of law to
which no response is required. To the extent a response is required, the allegations are denied.
AS AND TO THE SIXTH COUNTERCLAIM
18. The allegations contained in Paragraph 18 purport to assert conclusions of law to
which no response is required. To the extent a response is required, the allegations are denied.
AS AND TO THE SEVENTH COUNTERCLAIM
19. The allegations contained in Paragraph 19 purport to assert conclusions of law to
which no response is required. To the extent a response is required, the allegations are denied.
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FILED: KINGS COUNTY CLERK 06/12/2018 11:19 AM INDEX NO. 506027/2014
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 06/12/2018
AS AND TO THE EIGHTH COUNTERCLAIM
20. The allegations contained in Paragraph 20 purport to assert conclusions of law to
which no response is required. To the extent a response is required, the allegations are denied.
AS AND TO THE NINTH COUNTERCLAIM
21. The allegations contained in Paragraph 21 purport to assert conclusions of law to
which no response is required. To the extent a response is required, the allegations are denied.
AS AND TO THE TENTH COUNTERCLAIM
22. The allegations contained in Paragraph 22 purport to assert conclusions of law to
which no response is required. To the extent a response is required, the allegations are denied.
23. The allegations contained in Paragraph 23 purport to assert conclusions of law to
which no response is required. To the extent a response is required, the allegations are denied.
24. The allegations contained in Paragraph 24 purport to assert conclusions of law to
which no response is required. To the extent a response is required, the allegations are denied.
25. The allegations contained in Paragraph 25 purport to assert conclusions of law to
which no response is required. To the extent a response is required, the allegations are denied.
26. The allegations contained in Paragraph 26 purport to assert conclusions of law to
which no response is required. To the extent a response is required, the allegations, including
any demands or prayers for judgment or relief, are denied.
27. The allegations contained in Paragraph 27 purport to assert conclusions of law to
which no response is required. To the extent a response is required, the allegations, including
any demands or prayers for judgment or relief, are denied.
AS AND TO THE WHEREFORE CLAUSE
Defendant asserts a demand for judgment and a response is not required. To the extent a
DOCX
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FILED: KINGS COUNTY CLERK 06/12/2018 11:19 AM INDEX NO. 506027/2014
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 06/12/2018
response is required, the allegations are denied.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Defendant fails to state a cause of action upon which reliefmay be granted.
SECOND AFFIRMATIVE DEFENSE
Plaintiff specifically denies that all conditions precedent to Defendant's claims for
recovery have occurred or been met.
THIRD AFFIRMATIVE DEFENSE
Defendant's claims are barred by waiver and estoppel.
FOURTH AFFIRMATIVE DEFENSE
Defendant's claims are barred by applicable statutes of limitations.
FIFTH AFFIRMATIVE DEFENSE
Defendant's claims are barred by laches.
SIXTH AFFIRMATIVE DEFENSE
Defendant failed to mitigate his damages.
SEVENTH AFFIRMATIVE DEFENSE
Defendant's'
claims are barred by the doctrine of unclean hands.
EIGHTH AFFIRMATIVE DEFENSE
Defendant's claims are barred, in whole or in part, by the doctrine of accord and
satisfaction.
NINTH AFFIRMATIVE DEFENSE
Any recovery by Defendant must be off-set by the debt owed to Plaintiff.
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FILED: KINGS COUNTY CLERK 06/12/2018 11:19 AM INDEX NO. 506027/2014
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 06/12/2018
TENTH AFFIRMATIVE DEFENSE
Defendant's damages were caused in whole or in part by Defendant's failure to exercise
ordinary care and/or the acts or omissions of others, and therefore any recovery to which
Defendant would otherwise be entitled must be reduced by application of comparative
negligence set forth in the Uniform Commercial Code.
ELEVENTH AFFIRMATIVE DEFENSE
Defendant's claims are frivolous, without any reasonable basis in law or equity and
cannot be supported by a good faith argument for an extension, modification, or reversal of
existing law, and, as such, are made in bad faith for the purpose of exacting a nuisance
attorneys'
settlement, entitling Plaintiff to fees and costs.
TWELFTH AFFIRMATIVE DEFENSE
Plaintiff acted in good faith and in accordance with reasonable commercial standards.
THIRTEENTH AFFIRMATIVE DEFENSE
The Truth in Lending Disclosure Statement complies with 12 CFR 226.18(d).
FOURTEENTH AFFIRMATIVE DEFENSE
Defendant's claims are barred by the doctrine of unjust enrichment.
FIFTEENTH AFFIRMATIVE DEFENSE
Pursuant to the Purchase and Assumption Agreement between Plaintiff and the Federal
borrowers'
Deposit Insurance Corporation, Plaintiff did not assume any liability associated with
- such as Defendant's - counterclaims to mortgages executed prior to September
relating 25,
2008 by Washington Mutual Bank. Rather, the Federal Insurance Deposit Corporation as
Receiver for Washington Mutual Bank remains liable for such claims.
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FILED: KINGS COUNTY CLERK 06/12/2018 11:19 AM INDEX NO. 506027/2014
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 06/12/2018
SIXTEENTH AFFIRMATIVE DEFENSE
Any injuries sustained by Defendant were the result of conduct of others over whom
Plaintiff had no control.
SEVENTEENTH AFFIRMATIVE DEFENSE
To the extent Defendant seeks relief against Plaintiff based on fraud or wrongful conduct
he has failed to plead those claims with the requisite particularity.
EIGHTEENTH AFFIRMATIVE DEFENSE
Defendant's Counterclaims do not provide adequate notice of the claims Defendant
asserts against Plaintiff, and thus Plaintiff reserves the right to assert additional defenses,
WHEREFORE, Plaintiff denies that Defendant is entitled to any of the relief sought in
the Counterclaims and respectfully requests the Court to dismiss the Answer & Counterclaims in
their entirety with prejudice, grant the relief requested in the Plaintiff's Complaint, award
attorneys'
Plaintiff its reasonable fees and costs, and grant any other relief that this Court deems
just and proper.
Dated: New York, New York
August 20, 2014
Respectfully submitted,
Pß RISER IBRAHIM & BERG LLC
( /
Jqfin alzone, Esq.
O'
S'Pe,g > Plaza, Suite 2371
Ne v York, NY 10001
(212) 596-7037
Attorneys for Plaintiff
JPMorgan Chase Bank, National Association,
Successor in Interest by Purchase from the Federal
Deposit Insurance Corporation as Receiver of
Washington Mutual Bank f/k/a Washington Mutual
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FILED: KINGS COUNTY CLERK 06/12/2018 11:19 AM INDEX NO. 506027/2014
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 06/12/2018
Bank, FA, Successor in Interest to North American
Mortgage Company
Please respond to Somerset address:
270 Davidson Avenue
Somerset, NJ 08873
(908) 725-9700
To: David J. Aronstam, Esq.
40 Exchange Place, Suite 2010
New York, New York 10005
Attorney for Defendant,
Peter K. McKenzie
(00234179
DOCX
) 7
Preview
FILED: KINGS COUNTY CLERK 06/12/2018 11:19 AM INDEX NO. 506027/2014 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 06/12/2018 FILED: KINGS COUNTY CLERK 06/12/2018 11:19 AM INDEX NO. 506027/2014 INDEX NO. 506027/2014 FILED: DOC. NYSCEF KINGS157 NO. COUNTY CLERK 4 :5 P RECEIVED NYSCEF: 06/12/2018 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/20/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : JPMORGAN CHASE BANK, NATIONAL : Index No.: 506027/2014 ASSOCIATION, SUCCESSOR IN INTEREST BY : PURCHASE FROM THE FEDERAL DEPOSIT : INSURANCE CORPORATION AS RECEIVER OF : REPLY TO THE ANSWER & WASHINGTON MUTUAL BANK F/K/A : COUNTERCLAIMS WASHINGTON MUTUAL BANK, FA, SUCCESSOR : IN INTEREST TO NORTH AMERICAN : MORTGAGE COMPANY, : : Plaintiff, : : -against- : PETER K. MCKENZIE; SHERREL FARNSWORTH : A/K/A SHERREL A. FARNSWORTH; JPMORGAN : CHASE BANK, N.A.; RAB PERFORMANCE : RECOVERIES, LLC; AMERICAN EXPRESS BANK : FSB, CAPITAL ONE BANK; CITY OF NEW YORK : TRANSIT ADJUDICATION BUREAU; NEW YORK : CITY ENVIRONMENTAL CONTROL BOARD; : NYC DEPARTMENT OF FINANCE-PARKING : DOE" VIOLATIONS BUREAU; "JOHN AND "JANE : DOE" said names being fictitious, itbeing the intention : of Plaintiff to designate any and all occupants of : premises being foreclosed herein : Defendants. : Plaintiff JPMorgan Chase Bank, National Association, Successor in Interest by Purchase from the Federal Deposit Insurance Corporation as Receiver of Washington Mutual Bank f/k/a Washington Mutual Bank, FA, Successor in Interest to North American Mortgage Company ("Plaintiff' ("Plaintiff"), by and through itsattorneys, Parker Ibrahim & Berg LLC, and by way of its Reply Counterclaims" to the Answer & Counterclaims (the "Answer & Counterclaims") filed by Defendant Peter K. (" Defendant" McKenzie ("Defendant"), states as follows: (0023d179DOCX ) l FILED: KINGS COUNTY CLERK 06/12/2018 11:19 AM INDEX NO. 506027/2014 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 06/12/2018 1-2. Paragraphs 1 and 2 of the Answer & Counterclaims do not require a response. To the extent a response is required, the allegations are denied AS AND TO THE FIRST COUNTERCLAIM 13. The allegations contained in Paragraph 13 purport to assert conclusions of law to which no response is required. To the extent a response is required, the allegations are denied. AS AND TO THE SECOND COUNTERCLAIM 14. The allegations contained in Paragraph 14 purport to assert conclusions of law to which no response is required. To the extent a response is required, the allegations are denied. AS AND TO THE THIRD COUNTERCLAIM 15. The allegations contained in Paragraph 15 purport to assert conclusions of law to which no response is required. To the extent a response is required, the allegations are denied. AS AND TO THE FOURTH COUNTERCLAIM 16. The allegations contained in Paragraph 16 purport to assert conclusions of law to which no response is required. To the extent a response is required, the allegations are denied. AS AND TO THE FIFTH COUNTERCLAIM 17. The allegations contained in Paragraph 17 purport to assert conclusions of law to which no response is required. To the extent a response is required, the allegations are denied. AS AND TO THE SIXTH COUNTERCLAIM 18. The allegations contained in Paragraph 18 purport to assert conclusions of law to which no response is required. To the extent a response is required, the allegations are denied. AS AND TO THE SEVENTH COUNTERCLAIM 19. The allegations contained in Paragraph 19 purport to assert conclusions of law to which no response is required. To the extent a response is required, the allegations are denied. (00234179.DOCX ) 2 FILED: KINGS COUNTY CLERK 06/12/2018 11:19 AM INDEX NO. 506027/2014 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 06/12/2018 AS AND TO THE EIGHTH COUNTERCLAIM 20. The allegations contained in Paragraph 20 purport to assert conclusions of law to which no response is required. To the extent a response is required, the allegations are denied. AS AND TO THE NINTH COUNTERCLAIM 21. The allegations contained in Paragraph 21 purport to assert conclusions of law to which no response is required. To the extent a response is required, the allegations are denied. AS AND TO THE TENTH COUNTERCLAIM 22. The allegations contained in Paragraph 22 purport to assert conclusions of law to which no response is required. To the extent a response is required, the allegations are denied. 23. The allegations contained in Paragraph 23 purport to assert conclusions of law to which no response is required. To the extent a response is required, the allegations are denied. 24. The allegations contained in Paragraph 24 purport to assert conclusions of law to which no response is required. To the extent a response is required, the allegations are denied. 25. The allegations contained in Paragraph 25 purport to assert conclusions of law to which no response is required. To the extent a response is required, the allegations are denied. 26. The allegations contained in Paragraph 26 purport to assert conclusions of law to which no response is required. To the extent a response is required, the allegations, including any demands or prayers for judgment or relief, are denied. 27. The allegations contained in Paragraph 27 purport to assert conclusions of law to which no response is required. To the extent a response is required, the allegations, including any demands or prayers for judgment or relief, are denied. AS AND TO THE WHEREFORE CLAUSE Defendant asserts a demand for judgment and a response is not required. To the extent a DOCX (00234179 ) 3 FILED: KINGS COUNTY CLERK 06/12/2018 11:19 AM INDEX NO. 506027/2014 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 06/12/2018 response is required, the allegations are denied. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Defendant fails to state a cause of action upon which reliefmay be granted. SECOND AFFIRMATIVE DEFENSE Plaintiff specifically denies that all conditions precedent to Defendant's claims for recovery have occurred or been met. THIRD AFFIRMATIVE DEFENSE Defendant's claims are barred by waiver and estoppel. FOURTH AFFIRMATIVE DEFENSE Defendant's claims are barred by applicable statutes of limitations. FIFTH AFFIRMATIVE DEFENSE Defendant's claims are barred by laches. SIXTH AFFIRMATIVE DEFENSE Defendant failed to mitigate his damages. SEVENTH AFFIRMATIVE DEFENSE Defendant's' claims are barred by the doctrine of unclean hands. EIGHTH AFFIRMATIVE DEFENSE Defendant's claims are barred, in whole or in part, by the doctrine of accord and satisfaction. NINTH AFFIRMATIVE DEFENSE Any recovery by Defendant must be off-set by the debt owed to Plaintiff. (00284179.DOCX ) 4 FILED: KINGS COUNTY CLERK 06/12/2018 11:19 AM INDEX NO. 506027/2014 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 06/12/2018 TENTH AFFIRMATIVE DEFENSE Defendant's damages were caused in whole or in part by Defendant's failure to exercise ordinary care and/or the acts or omissions of others, and therefore any recovery to which Defendant would otherwise be entitled must be reduced by application of comparative negligence set forth in the Uniform Commercial Code. ELEVENTH AFFIRMATIVE DEFENSE Defendant's claims are frivolous, without any reasonable basis in law or equity and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, and, as such, are made in bad faith for the purpose of exacting a nuisance attorneys' settlement, entitling Plaintiff to fees and costs. TWELFTH AFFIRMATIVE DEFENSE Plaintiff acted in good faith and in accordance with reasonable commercial standards. THIRTEENTH AFFIRMATIVE DEFENSE The Truth in Lending Disclosure Statement complies with 12 CFR 226.18(d). FOURTEENTH AFFIRMATIVE DEFENSE Defendant's claims are barred by the doctrine of unjust enrichment. FIFTEENTH AFFIRMATIVE DEFENSE Pursuant to the Purchase and Assumption Agreement between Plaintiff and the Federal borrowers' Deposit Insurance Corporation, Plaintiff did not assume any liability associated with - such as Defendant's - counterclaims to mortgages executed prior to September relating 25, 2008 by Washington Mutual Bank. Rather, the Federal Insurance Deposit Corporation as Receiver for Washington Mutual Bank remains liable for such claims. i00234179 DOCX i 5 FILED: KINGS COUNTY CLERK 06/12/2018 11:19 AM INDEX NO. 506027/2014 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 06/12/2018 SIXTEENTH AFFIRMATIVE DEFENSE Any injuries sustained by Defendant were the result of conduct of others over whom Plaintiff had no control. SEVENTEENTH AFFIRMATIVE DEFENSE To the extent Defendant seeks relief against Plaintiff based on fraud or wrongful conduct he has failed to plead those claims with the requisite particularity. EIGHTEENTH AFFIRMATIVE DEFENSE Defendant's Counterclaims do not provide adequate notice of the claims Defendant asserts against Plaintiff, and thus Plaintiff reserves the right to assert additional defenses, WHEREFORE, Plaintiff denies that Defendant is entitled to any of the relief sought in the Counterclaims and respectfully requests the Court to dismiss the Answer & Counterclaims in their entirety with prejudice, grant the relief requested in the Plaintiff's Complaint, award attorneys' Plaintiff its reasonable fees and costs, and grant any other relief that this Court deems just and proper. Dated: New York, New York August 20, 2014 Respectfully submitted, Pß RISER IBRAHIM & BERG LLC ( / Jqfin alzone, Esq. O' S'Pe,g > Plaza, Suite 2371 Ne v York, NY 10001 (212) 596-7037 Attorneys for Plaintiff JPMorgan Chase Bank, National Association, Successor in Interest by Purchase from the Federal Deposit Insurance Corporation as Receiver of Washington Mutual Bank f/k/a Washington Mutual (00234179.0OCX ) 6 FILED: KINGS COUNTY CLERK 06/12/2018 11:19 AM INDEX NO. 506027/2014 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 06/12/2018 Bank, FA, Successor in Interest to North American Mortgage Company Please respond to Somerset address: 270 Davidson Avenue Somerset, NJ 08873 (908) 725-9700 To: David J. Aronstam, Esq. 40 Exchange Place, Suite 2010 New York, New York 10005 Attorney for Defendant, Peter K. McKenzie (00234179 DOCX ) 7