Preview
FILED: KINGS COUNTY CLERK 07/17/2018 04:58 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/17/2018
FILED:
FILED : KINGS
KINGS COUNTY
COUNTY CLERK
CLERK 07/17/2018
04/21/2016 04:58
01:51 PM INDEX
INDEX NO.
NO. 506027/2014
506027/2014
PM|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 171
74 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 07/17/2018
04/21/2016
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 : NOTICE OF MOTION FOR
WASHINGTON MUTUAL BANK F/K/A : DEFAULT JUDGMENT AND TO
WASHINGTON MUTUAL BANK, FA, SUCCESSOR : AMEND THE CAPTION
IN INTEREST TO NORTH AMERICAN :
MORTGAGE COMPANY, :
: Property Address:
Plaintiff, : 240 Greene Avenue
: Brooklyn, New York 11238
-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. :
:
PLEASE TAKE NOTICE that upon the annexed Affirmation of Kristin M. Mykulak,
Esq. dated April 21, 2016, and the exhibits annexed thereto; and upon all prior pleadings and
proceedings had herein, 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
("Plaintiff"
Mortgage Company ("Plaintiff") will move before the Supreme Court of New York, Kings
County, located at 360 Adams Street, Brooklyn, NY 11201 on May 13, 2016 at 9:30 a.m. in the
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forenoon or as soon thereafter as counsel may be heard, for an Order directing the Kings County
Clerk to enter default judgment against Defendants Sherrel 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 Violations Bureau, John Doe a/k/a William Doe, and Jane
Doe a/k/a Danielle Moore pursuant to CPLR 3215(a), and for such other and further relief as the
Court deems proper, including costs of this motion.
PLEASE TAKE FURTHER NOTICE, that responses, if any, must be served at least
seven (7) days before the return date of this motion, pursuant to CPLR § 2214(b).
Dated: New York, New York
April 21, 2016
PARKER IBRAHIM & BERG LLC
.
By:
stin M. Mykulak, .
5 Penn Plaza, Suite 2371
New York, New York 10001
(212) 596-7037
Plaintiff'
Attorneys for Plaint'
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
Please reply to Somerset of)ìce
270 Davidson Avenue
Somerset, NJ 08873
(908) 725-9700
TO: David J. Aronstam, Esq.
40 Exchange Place, Suite 2010
New York, NY 10005
Attorney for Defendant,
Peter McKenzie
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James Thomas
Thomas & Spikes, LLP
2ªd
111 Court Street, 2 Floor
Brooklyn, NY 11201
Attorney for Non-Answering Defendant,
Sherrel Farnsworth
JPMorgan Chase Bank, N.A.
c/o CT Corp.
8* - 13*
111 8 Avenue 13 Floor
New York, NY 10011
Non-Answering Defendant
RAB Performance Recoveries, LLC
Office of Secretary of State, State of New York
One Commerce Plaza
99 Washington Avenue
Albany, NY 12231
Non-Answering Defendant
American Express Bank FSB
c/o CT Corp.
8* - 13*
111 8 Avenue 13 Floor
New York, NY 10011
Non-Answering Defendant
Capital One Bank
c/o Corporation Service Company
80 State Street
Albany NY 12207
Non-Answering Defendant
City of New York Transit Adjudication Bureau
130 Livingston Street
Brooklyn, NY 11201
Non-Answering Defendant
New York City Environmental Control Board
4*
100 Church Street, 4 Floor
New York, NY 10007
Non-Answering Defendant
New York City Department of Finance-Parking Violations Bureau
4*
100 Church Street, 4 Floor
New York, NY 10007
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Non-Answering Defendant
John Doe a/k/a William Doe
- 3d
240 Green Avenue 3 Floor
Brooklyn, NY 11238
Non-Answering Defendant
Jane Doe a/k/a Danielle Moore
- 18t
240 Green Avenue Floor
Brooklyn, NY 11238
Non-Answering Defendant
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NYSCEF DOC. NO. 171 RECEIVED NYSCEF:
Writer's 07/17/2018
Direct Contact:
267.908.9809 (Tel.)
267.908.9888 (Fax)
kristin.mykulak@piblaw.com
PARKERIBRAHIM &BERG LLC
www.piblaw.com
April 21, 2016
VIA FEDEX
Honorable Noach Dear, J.S.C.
Supreme Court of New York, Kings County
360 Adams Street, Rm. 378
Brooklyn, NY 11201
Re: JPMorgan Chase Bank, National Association v. Peter K. McKenzie, et al.
Index No.: 506027/2014
Dear Judge Dear:
This firm represents 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") in the
above-referenced matter.
On March 22, 2016, Plaintiff filed a Motion for Default Judgment in this matter, which was returnable
on April 18, 2016. The original Motion for Default Judgment was filed electronically at Document Nos. 38-72.
Unfortunately, due to inadvertence on the part of Plaintiff's counsel, the motion was marked off as a result of
the non-appearance of any party. Accordingly, at the direction of the Motion Part and Your Honor's clerk, this
Motion for Default Judgment is being refiled with the Court.
Please contact me should you have any questions. Thank you for your attention to this matter.
Very truly yours,
Kristin M. Mykulak
Enclosures
New York Office
-23"" - -
5 Penn Plaza Floor, Suite 2371 New York, NY 10001 212.596.7037
New Jersey Office
270 Davidson Avenue - Somerset, NJ 08873 - 907.725.9700
BOSTON - CHICAGO - NEWJERSEY - NEWYORK - ORANGE COUNTY - PHILADELPHIA
j of j
FILED:
FILED : KINGS
KINGS COUNTY
COUNTY CLERK
CLERK 07/17/2018
04/21/2016 04:58
01:51 PM INDEX
INDEX NO.
NO. 506027/2014
506027/2014
PM|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 171
76 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 07/17/2018
04/21/2016
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 : AFFIRMATION IN SUPPORT OF
WASHINGTON MUTUAL BANK F/K/A : MOTION FOR DEFAULT
WASHINGTON MUTUAL BANK, FA, SUCCESSOR : JUDGMENT AND TO AMEND
IN INTEREST TO NORTH AMERICAN : THE CAPTION
MORTGAGE COMPANY, :
:
Plaintiff, :
: Property Address:
-against- : 240 Greene Avenue
: Brooklyn, New York 11238
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 :
PlaintiA'
of Plaintiff to designate any and all occupants of :
premises being foreclosed herein, :
:
Defendants. :
:
I, Kristin M. Mykulak, Esq., an attorney duly licensed to practice law in the State of New
York, affirm under penalty of perjury as follows:
1. I am an associate with the law firm Parker Ibrahim & Berg LLC, attorneys for
PlaintiA'
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").
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2. I submit this affirmation in support of Plaintiff's motion (i) pursuant to CPLR
3215(a), seeking a default judgment against Defendants Sherrel 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 Violations Bureau, John Doe a/k/a William Doe,
and Jane Doe a/k/a Danielle Moore; (ii)amending the Caption in this action; and (iii) granting
such other and further relief as this Court may deem just and proper.
3. Based on the arguments below, the October 23, 2015 Affidavit of Merit and
Mount Due by Phonesay Say, and the February 18, 2016 Affidavit of Mailing by James A.
Ranaldi, Plaintiff's Motion for Default Judgment should be granted in itsentirety.
FACTUAL BACKGROUND
4. On or about May 29, 2001, Defendants Peter K. McKenzie and Sherrel
CC 11
Farnsworth (the "Mortgagors") granted a mortgage to North American Mortgage Company (the
"Mortgage"
"Mortgage") against the property located at 240 Greene Avenue, Brooklyn, New York 11238
"Property" ("
(the "Property"), which secured a Note payable to North American Mortgage Company ("North
American" "Note"
American") in the amount of $318,750.00 (the "Note"). (See Affidavit of Merit and Amount
Merit"
Due by Phonesay Say dated October 23, 2015 ("Aff. Of Merit"), ¶ 4, Exhibits A and B.)
"blank."
5. The Note is endorsed by North American in (Seeid., Exhibit A.)
6. On January 7, 2002, North American was acquired by Washington Mutual, Inc.
(see Bloomberg Business, Company Overview of North American Mortgage Company,
http://www.bloomberg.com/research/stocks/private/snapshot.asp?priveapId=324327 (last visited
September 25, 2015)), the holding company of Washington Mutual Bank. (See FDIC,Statusof
Washington Mutual Bank Receivership, https://www.fdic.gov/bank/individual/failed/wamu_
settlement.html (last visited September 25, 2015). See Aff. Of Merit,. Exhibit C and D.)
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7. On September 25, 2008, JPMorgan Chase Bank, National Association acquired
the above-referenced Note and Mortgage pursuant to a Purchase and Assumption Agreement
("FDIC"
between Chase and the Federal Deposit Insurance Corporation ("FDIC"). (See Aff. of Merit ¶ 7,
Exhibit E.)
8. Plaintiff is in possession of the original Note and was in possession of the Note at
the time of the filing of the Complaint. (See Aff. of Merit ¶ 8, Exhibit F.)
9. Mortgagors failed to make the payment that was due July 1, 2008 and have failed
to make subsequent payments to bring the loan current, and the entire loan balance is now due
and owing to Plaintiff. (See Aff. of Merit, ¶ 9.)
10. On July 1, 2014, Plaintiff filed a complaint seeking foreclosure in connection with
the Note, concerning the Property. A true and correct copy of the Notice of Pendency, Summons
and Complaint filed by Chase is attached as Exhibit 1.
11. On July 7, 2014, copies of the Summons and Complaint were personally served
upon Defendant Peter McKenzie by serving Kenny Dumeng, the doorman, at 50 Lexington
Avenue, New York, NY 10010. A true and correct copy of the Affidavit of Service is attached
hereto as Exhibit 2. The Affidavit of Service was filed with the Clerk of the Supreme Court of
the State of New York, County of Kings, on July 9, 2014. (See id.)
12. On July 8, 2014, copies of the Summons and Complaint were served upon
Defendant Peter McKenzie via first class mail at 50 Lexington Avenue, Apt. 11C, New York,
NY 10010. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 3.
The Affidavit of Service was filed with the Clerk of the Supreme Court of the State of New
York, County of Kings, on July 9, 2014. (See id.)
13. Defendant Peter McKenzie served a Verified Answer & Counterclaims on July
28, 2014. A copy of the Verified Answer & Counterclaims is attached hereto as Exhibit 4.
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14. On July 7, 2014, copies of the Summons and Complaint were served upon
2nd
Defendant Sherrel Farnsworth by affixing a true copy to her door at 240 Greene Avenue, 2
Floor, Brooklyn, NY 11238, Defendant's actual place of residence, and leaving a true copy with
Defendant Sherrel Farnsworth's neighbor. A true and correct copy of the Affidavit of Service is
attached hereto as Exhibit 5. The Affidavit of Service was filed with the Clerk of the Supreme
Court of the State of New York, County of Kings, on July 9, 2014. (See id)
15. On July 9, 2014, copies of the Summons and Complaint were served upon
2nd
Defendant Sherrel Farnsworth via first class mail at 240 Greene Avenue, 2 Floor, Brooklyn,
NY 11238. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 6.
The Affidavit of Service was filed with the Clerk of the Supreme Court of the State of New
York, County of Kings, on July 9, 2014. (See id)
16. On July 8, 2014, copies of the Summons and Complaint were personally served
upon Defendant JPMorgan Chase Bank, N.A. by serving CT Corp., an authorized agent to accept
service on behalf of JPMorgan Chase Bank, N.A. A true and correct copy of the Affidavit of
Service is attached hereto as Exhibit 7. The Affidavit of Service was filed with the Clerk of the
Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See id)
17. On July 3, 2014, copies of the Summons and Complaint were personally served
upon Defendant RAB Performance Recoveries, LLC by serving an authorized agent of the
Secretary of State of the State of New York in the City of Albany, NY. A true and correct copy
of the Affidavit of Service is attached hereto as Exhibit 8. The Affidavit of Service was filed
with the Clerk of the Supreme Court of the State of New York, County of Kings, on July 9,
2014. (See id)
18. On July 8, 2014, copies of the Summons and Complaint were personally served
upon Defendant American Express Bank FSB by serving CT Corp., an authorized agent to
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accept service on behalf of American Express Bank FSB. A true and correct copy of the
Affidavit of Service is attached hereto as Exhibit 9. The Affidavit of Service was filed with the
Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See
id)
19. On July 8, 2014, copies of the Summons and Complaint were personally served
upon Defendant Capital One Bank by serving Corporation Service Company, an authorized
agent to accept service on behalf of Capital One Bank. A true and correct copy of the Affidavit
of Service is attached hereto as Exhibit 10. The Affidavit of Service was filed with the Clerk of
the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See id)
20. On July 7, 2014, copies of the Summons and Complaint were personally served
upon Defendant City of New York Transit Adjudication Bureau by serving an authorized agent
of the City of New York Transit Adjudication Bureau. A true and correct copy of the Affidavit
of Service is attached hereto as Exhibit 11. The Affidavit of Service was filed with the Clerk of
the Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014.
(See id)
21. On July 7, 2014, copies of the Summons and Complaint were personally served
upon Defendant New York City Environmental Control Board by serving an authorized agent of
the New York City Environmental Control Board. A true and correct copy of the Affidavit of
Service is attached hereto as Exhibit 12. The Affidavit of Service was filed with the Clerk of the
Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See
id)
22. On July 7, 2014, copies of the Summons and Complaint were personally served
upon Defendant NYC Department of Finance - Violations Bureau an
Parking by serving
authorized agent of the NYC Department of Finance - Violations Bureau. A true and
Parking
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correct copy of the Affidavit of Service is attached hereto as Exhibit 13. The Affidavit of
Service was filed with the Clerk of the Clerk of the Supreme Court of the State of New York,
County of Kings, on July 9, 2014. (See id)
23. On July 7, 2014, copies of the Summons and Complaint were served upon
"Doe" 3d
Defendant John Doe by serving William at 240 Green Avenue, 3 Floor Apt., Brooklyn,
NY 11238. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 14.
The Affidavit of Service was filed with the Clerk of the Supreme Court of the State of New
York, County of Kings, on July 9, 2014. (See id)
24. On July 9, 2014, copies of the Summons and Complaint were served upon
"Doe" 3d
Defendant John Doe a/k/a William via first class mail at 240 Greene Avenue, 3 Floor
Apt., Brooklyn, NY 11238. A true and correct copy of the Affidavit of Service is attached hereto
as Exhibit 15. The Affidavit of Service was filed with the Clerk of the Supreme Court of the
State of New York, County of Kings, on July 9, 2014. (See id)
25. On July 7, 2014, copies of the Summons and Complaint were served upon
l'*
Defendant Jane Doe by serving Danielle Moore at 240 Green Avenue, Floor Apt., Brooklyn,
NY 11238. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 16.
The Affidavit of Service was filed with the Clerk of the Supreme Court of the State of New
York, County of Kings, on July 9, 2014. (See id)
26. On July 9, 2014, copies of the Summons and Complaint were served upon
l'*
Defendant Jane Doe a/k/a Danielle Moore via first class mail at 240 Greene Avenue, Floor
Apt., Brooklyn, NY 11238. A true and correct copy of the Affidavit of Service is attached hereto
as Exhibit 17. The Affidavit of Service was filed with the Clerk of the Supreme Court of the
State of New York, County of Kings, on July 9, 2014. (See id)
27. Defendant Sherrel Farnsworth has not filed an Answer.
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28. Defendant Sherrel Famsworth's counsel appeared at settlement conferences held
before Justice Martin on July 30, 2015 and November 4, 2015, but has not entered a Notice of
Appearance.
29. Further, the time for Defendant Sherrel Farnsworth to Answer has expired and has
not been extended by court order or otherwise.
30. A Request for Judicial Intervention ("RJI") was filed on or July 15, 2014. A copy
of the RJI and accompanying attorney affirmation is attached hereto as Exhibit 18.
31. On September 3, 2015, I conducted a search of the Department of Defense
Manpower Data Center for Defendant Sherrel Farnsworth, who is over 18 years of age. The
certified military status report provided for Defendant Sherrel Farnsworth indicates that she is
not in active military service, as defined in the Servicemembers Civil Relief Act, 50 USC §521
("SCRA").
32. Specifically, Defendant Sherrel Farnsworth, whose last known address is at 240
2ªd
Greene Avenue, 2 Floor, Brooklyn, NY 11238 (i) is not in the military service of the United
States, as defined in the SCRA, (ii)is not in the military service of any nation allied with the
United States, (iii) has not been ordered to report for induction under the selective training and
service act of 1940 as amended, and (iv) is not a member of the enlisted reserve corps who has
been ordered to report for military service. The Military Status Report verifying said belief is
attached hereto as Exhibit 19.
33. The remaining Defendants, 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 Violations Bureau, John Doe a/k/a William Doe, and Jane Doe a/k/a Danielle
Moore, have not answered or otherwise appeared in this action.
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34. On January 31, 2015, this case was released from the settlement part as "not
settled."
LEGAL ARGUMENT
L Default Judgment Should be Entered Against All Defendants.
35. CPLR 3012(c) requires an answer or other responsive pleading to be served
within thirty days (30) after service of the pleading to which itresponds is completed.
36. Service upon Defendant Sherrel Farnsworth was completed over thirty (30) days
ago.
37. To date, Defendant Sherrel Farnsworth has not filed an appearance, answer or
other responsive pleading.
38. Service upon Defendant JPMorgan Chase Bank, N.A. was completed over thirty
(30) days ago.
39. To date, Defendant JPMorgan Chase Bank, N.A. has not filed an appearance,
answer or other responsive pleading.
40. Service upon Defendant RAB Performance Recoveries, LLC was completed over
thirty (30) days ago.
41. To date, Defendant RAB Performance Recoveries, LLC has not filed an
appearance, answer or other responsive pleading.
42. Service upon Defendant American Express Bank FSB was completed over thirty
(30) days ago.
43. To date, Defendant American Express Bank FSB has not filed an appearance,
answer or other responsive pleading.
44. Service upon Defendant Capital One Bank was completed over thirty (30) days
ago.
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45. To date, Defendant Capital One Bank has not filed an appearance, answer or other
responsive pleading.
46. Service upon Defendant City of New York Transit Adjudication Bureau was
completed over thirty (30) days ago.
47. To date, Defendant City of New York Transit Adjudication Bureau has not filed
an appearance, answer or other responsive pleading.
48. Service upon Defendant New York City Environmental Control Board was
completed over thirty (30) days ago.
49. To date, Defendant New York
Preview
FILED: KINGS COUNTY CLERK 07/17/2018 04:58 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/17/2018 FILED: FILED : KINGS KINGS COUNTY COUNTY CLERK CLERK 07/17/2018 04/21/2016 04:58 01:51 PM INDEX INDEX NO. NO. 506027/2014 506027/2014 PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 171 74 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/17/2018 04/21/2016 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 : NOTICE OF MOTION FOR WASHINGTON MUTUAL BANK F/K/A : DEFAULT JUDGMENT AND TO WASHINGTON MUTUAL BANK, FA, SUCCESSOR : AMEND THE CAPTION IN INTEREST TO NORTH AMERICAN : MORTGAGE COMPANY, : : Property Address: Plaintiff, : 240 Greene Avenue : Brooklyn, New York 11238 -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. : : PLEASE TAKE NOTICE that upon the annexed Affirmation of Kristin M. Mykulak, Esq. dated April 21, 2016, and the exhibits annexed thereto; and upon all prior pleadings and proceedings had herein, 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 ("Plaintiff" Mortgage Company ("Plaintiff") will move before the Supreme Court of New York, Kings County, located at 360 Adams Street, Brooklyn, NY 11201 on May 13, 2016 at 9:30 a.m. in the {00596T/5.DOCX } 1 1 of 4 FILED: KINGS COUNTY CLERK 07/17/2018 04:58 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/17/2018 forenoon or as soon thereafter as counsel may be heard, for an Order directing the Kings County Clerk to enter default judgment against Defendants Sherrel 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 Violations Bureau, John Doe a/k/a William Doe, and Jane Doe a/k/a Danielle Moore pursuant to CPLR 3215(a), and for such other and further relief as the Court deems proper, including costs of this motion. PLEASE TAKE FURTHER NOTICE, that responses, if any, must be served at least seven (7) days before the return date of this motion, pursuant to CPLR § 2214(b). Dated: New York, New York April 21, 2016 PARKER IBRAHIM & BERG LLC . By: stin M. Mykulak, . 5 Penn Plaza, Suite 2371 New York, New York 10001 (212) 596-7037 Plaintiff' Attorneys for Plaint' 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 Please reply to Somerset of)ìce 270 Davidson Avenue Somerset, NJ 08873 (908) 725-9700 TO: David J. Aronstam, Esq. 40 Exchange Place, Suite 2010 New York, NY 10005 Attorney for Defendant, Peter McKenzie {00596T/5.DOCX } 2 2 of 4 FILED: KINGS COUNTY CLERK 07/17/2018 04:58 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/17/2018 James Thomas Thomas & Spikes, LLP 2ªd 111 Court Street, 2 Floor Brooklyn, NY 11201 Attorney for Non-Answering Defendant, Sherrel Farnsworth JPMorgan Chase Bank, N.A. c/o CT Corp. 8* - 13* 111 8 Avenue 13 Floor New York, NY 10011 Non-Answering Defendant RAB Performance Recoveries, LLC Office of Secretary of State, State of New York One Commerce Plaza 99 Washington Avenue Albany, NY 12231 Non-Answering Defendant American Express Bank FSB c/o CT Corp. 8* - 13* 111 8 Avenue 13 Floor New York, NY 10011 Non-Answering Defendant Capital One Bank c/o Corporation Service Company 80 State Street Albany NY 12207 Non-Answering Defendant City of New York Transit Adjudication Bureau 130 Livingston Street Brooklyn, NY 11201 Non-Answering Defendant New York City Environmental Control Board 4* 100 Church Street, 4 Floor New York, NY 10007 Non-Answering Defendant New York City Department of Finance-Parking Violations Bureau 4* 100 Church Street, 4 Floor New York, NY 10007 {00596T/5.DOCX } 3 3 of 4 FILED: KINGS COUNTY CLERK 07/17/2018 04:58 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/17/2018 Non-Answering Defendant John Doe a/k/a William Doe - 3d 240 Green Avenue 3 Floor Brooklyn, NY 11238 Non-Answering Defendant Jane Doe a/k/a Danielle Moore - 18t 240 Green Avenue Floor Brooklyn, NY 11238 Non-Answering Defendant (oo596T/5.DOCX } 4 4 of 4 FILED: KINGS COUNTY CLERK 07/17/2018 04:58 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: Writer's 07/17/2018 Direct Contact: 267.908.9809 (Tel.) 267.908.9888 (Fax) kristin.mykulak@piblaw.com PARKERIBRAHIM &BERG LLC www.piblaw.com April 21, 2016 VIA FEDEX Honorable Noach Dear, J.S.C. Supreme Court of New York, Kings County 360 Adams Street, Rm. 378 Brooklyn, NY 11201 Re: JPMorgan Chase Bank, National Association v. Peter K. McKenzie, et al. Index No.: 506027/2014 Dear Judge Dear: This firm represents 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") in the above-referenced matter. On March 22, 2016, Plaintiff filed a Motion for Default Judgment in this matter, which was returnable on April 18, 2016. The original Motion for Default Judgment was filed electronically at Document Nos. 38-72. Unfortunately, due to inadvertence on the part of Plaintiff's counsel, the motion was marked off as a result of the non-appearance of any party. Accordingly, at the direction of the Motion Part and Your Honor's clerk, this Motion for Default Judgment is being refiled with the Court. Please contact me should you have any questions. Thank you for your attention to this matter. Very truly yours, Kristin M. Mykulak Enclosures New York Office -23"" - - 5 Penn Plaza Floor, Suite 2371 New York, NY 10001 212.596.7037 New Jersey Office 270 Davidson Avenue - Somerset, NJ 08873 - 907.725.9700 BOSTON - CHICAGO - NEWJERSEY - NEWYORK - ORANGE COUNTY - PHILADELPHIA j of j FILED: FILED : KINGS KINGS COUNTY COUNTY CLERK CLERK 07/17/2018 04/21/2016 04:58 01:51 PM INDEX INDEX NO. NO. 506027/2014 506027/2014 PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 171 76 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/17/2018 04/21/2016 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 : AFFIRMATION IN SUPPORT OF WASHINGTON MUTUAL BANK F/K/A : MOTION FOR DEFAULT WASHINGTON MUTUAL BANK, FA, SUCCESSOR : JUDGMENT AND TO AMEND IN INTEREST TO NORTH AMERICAN : THE CAPTION MORTGAGE COMPANY, : : Plaintiff, : : Property Address: -against- : 240 Greene Avenue : Brooklyn, New York 11238 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 : PlaintiA' of Plaintiff to designate any and all occupants of : premises being foreclosed herein, : : Defendants. : : I, Kristin M. Mykulak, Esq., an attorney duly licensed to practice law in the State of New York, affirm under penalty of perjury as follows: 1. I am an associate with the law firm Parker Ibrahim & Berg LLC, attorneys for PlaintiA' 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"). 1 of 12 FILED: KINGS COUNTY CLERK 07/17/2018 04:58 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/17/2018 2. I submit this affirmation in support of Plaintiff's motion (i) pursuant to CPLR 3215(a), seeking a default judgment against Defendants Sherrel 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 Violations Bureau, John Doe a/k/a William Doe, and Jane Doe a/k/a Danielle Moore; (ii)amending the Caption in this action; and (iii) granting such other and further relief as this Court may deem just and proper. 3. Based on the arguments below, the October 23, 2015 Affidavit of Merit and Mount Due by Phonesay Say, and the February 18, 2016 Affidavit of Mailing by James A. Ranaldi, Plaintiff's Motion for Default Judgment should be granted in itsentirety. FACTUAL BACKGROUND 4. On or about May 29, 2001, Defendants Peter K. McKenzie and Sherrel CC 11 Farnsworth (the "Mortgagors") granted a mortgage to North American Mortgage Company (the "Mortgage" "Mortgage") against the property located at 240 Greene Avenue, Brooklyn, New York 11238 "Property" (" (the "Property"), which secured a Note payable to North American Mortgage Company ("North American" "Note" American") in the amount of $318,750.00 (the "Note"). (See Affidavit of Merit and Amount Merit" Due by Phonesay Say dated October 23, 2015 ("Aff. Of Merit"), ¶ 4, Exhibits A and B.) "blank." 5. The Note is endorsed by North American in (Seeid., Exhibit A.) 6. On January 7, 2002, North American was acquired by Washington Mutual, Inc. (see Bloomberg Business, Company Overview of North American Mortgage Company, http://www.bloomberg.com/research/stocks/private/snapshot.asp?priveapId=324327 (last visited September 25, 2015)), the holding company of Washington Mutual Bank. (See FDIC,Statusof Washington Mutual Bank Receivership, https://www.fdic.gov/bank/individual/failed/wamu_ settlement.html (last visited September 25, 2015). See Aff. Of Merit,. Exhibit C and D.) 2 2 of 12 FILED: KINGS COUNTY CLERK 07/17/2018 04:58 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/17/2018 7. On September 25, 2008, JPMorgan Chase Bank, National Association acquired the above-referenced Note and Mortgage pursuant to a Purchase and Assumption Agreement ("FDIC" between Chase and the Federal Deposit Insurance Corporation ("FDIC"). (See Aff. of Merit ¶ 7, Exhibit E.) 8. Plaintiff is in possession of the original Note and was in possession of the Note at the time of the filing of the Complaint. (See Aff. of Merit ¶ 8, Exhibit F.) 9. Mortgagors failed to make the payment that was due July 1, 2008 and have failed to make subsequent payments to bring the loan current, and the entire loan balance is now due and owing to Plaintiff. (See Aff. of Merit, ¶ 9.) 10. On July 1, 2014, Plaintiff filed a complaint seeking foreclosure in connection with the Note, concerning the Property. A true and correct copy of the Notice of Pendency, Summons and Complaint filed by Chase is attached as Exhibit 1. 11. On July 7, 2014, copies of the Summons and Complaint were personally served upon Defendant Peter McKenzie by serving Kenny Dumeng, the doorman, at 50 Lexington Avenue, New York, NY 10010. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 2. The Affidavit of Service was filed with the Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See id.) 12. On July 8, 2014, copies of the Summons and Complaint were served upon Defendant Peter McKenzie via first class mail at 50 Lexington Avenue, Apt. 11C, New York, NY 10010. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 3. The Affidavit of Service was filed with the Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See id.) 13. Defendant Peter McKenzie served a Verified Answer & Counterclaims on July 28, 2014. A copy of the Verified Answer & Counterclaims is attached hereto as Exhibit 4. 3 3 of 12 FILED: KINGS COUNTY CLERK 07/17/2018 04:58 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/17/2018 14. On July 7, 2014, copies of the Summons and Complaint were served upon 2nd Defendant Sherrel Farnsworth by affixing a true copy to her door at 240 Greene Avenue, 2 Floor, Brooklyn, NY 11238, Defendant's actual place of residence, and leaving a true copy with Defendant Sherrel Farnsworth's neighbor. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 5. The Affidavit of Service was filed with the Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See id) 15. On July 9, 2014, copies of the Summons and Complaint were served upon 2nd Defendant Sherrel Farnsworth via first class mail at 240 Greene Avenue, 2 Floor, Brooklyn, NY 11238. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 6. The Affidavit of Service was filed with the Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See id) 16. On July 8, 2014, copies of the Summons and Complaint were personally served upon Defendant JPMorgan Chase Bank, N.A. by serving CT Corp., an authorized agent to accept service on behalf of JPMorgan Chase Bank, N.A. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 7. The Affidavit of Service was filed with the Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See id) 17. On July 3, 2014, copies of the Summons and Complaint were personally served upon Defendant RAB Performance Recoveries, LLC by serving an authorized agent of the Secretary of State of the State of New York in the City of Albany, NY. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 8. The Affidavit of Service was filed with the Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See id) 18. On July 8, 2014, copies of the Summons and Complaint were personally served upon Defendant American Express Bank FSB by serving CT Corp., an authorized agent to 4 4 of 12 FILED: KINGS COUNTY CLERK 07/17/2018 04:58 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/17/2018 accept service on behalf of American Express Bank FSB. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 9. The Affidavit of Service was filed with the Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See id) 19. On July 8, 2014, copies of the Summons and Complaint were personally served upon Defendant Capital One Bank by serving Corporation Service Company, an authorized agent to accept service on behalf of Capital One Bank. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 10. The Affidavit of Service was filed with the Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See id) 20. On July 7, 2014, copies of the Summons and Complaint were personally served upon Defendant City of New York Transit Adjudication Bureau by serving an authorized agent of the City of New York Transit Adjudication Bureau. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 11. The Affidavit of Service was filed with the Clerk of the Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See id) 21. On July 7, 2014, copies of the Summons and Complaint were personally served upon Defendant New York City Environmental Control Board by serving an authorized agent of the New York City Environmental Control Board. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 12. The Affidavit of Service was filed with the Clerk of the Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See id) 22. On July 7, 2014, copies of the Summons and Complaint were personally served upon Defendant NYC Department of Finance - Violations Bureau an Parking by serving authorized agent of the NYC Department of Finance - Violations Bureau. A true and Parking 5 5 of 12 FILED: KINGS COUNTY CLERK 07/17/2018 04:58 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/17/2018 correct copy of the Affidavit of Service is attached hereto as Exhibit 13. The Affidavit of Service was filed with the Clerk of the Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See id) 23. On July 7, 2014, copies of the Summons and Complaint were served upon "Doe" 3d Defendant John Doe by serving William at 240 Green Avenue, 3 Floor Apt., Brooklyn, NY 11238. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 14. The Affidavit of Service was filed with the Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See id) 24. On July 9, 2014, copies of the Summons and Complaint were served upon "Doe" 3d Defendant John Doe a/k/a William via first class mail at 240 Greene Avenue, 3 Floor Apt., Brooklyn, NY 11238. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 15. The Affidavit of Service was filed with the Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See id) 25. On July 7, 2014, copies of the Summons and Complaint were served upon l'* Defendant Jane Doe by serving Danielle Moore at 240 Green Avenue, Floor Apt., Brooklyn, NY 11238. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 16. The Affidavit of Service was filed with the Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See id) 26. On July 9, 2014, copies of the Summons and Complaint were served upon l'* Defendant Jane Doe a/k/a Danielle Moore via first class mail at 240 Greene Avenue, Floor Apt., Brooklyn, NY 11238. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 17. The Affidavit of Service was filed with the Clerk of the Supreme Court of the State of New York, County of Kings, on July 9, 2014. (See id) 27. Defendant Sherrel Farnsworth has not filed an Answer. 6 6 of 12 FILED: KINGS COUNTY CLERK 07/17/2018 04:58 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/17/2018 28. Defendant Sherrel Famsworth's counsel appeared at settlement conferences held before Justice Martin on July 30, 2015 and November 4, 2015, but has not entered a Notice of Appearance. 29. Further, the time for Defendant Sherrel Farnsworth to Answer has expired and has not been extended by court order or otherwise. 30. A Request for Judicial Intervention ("RJI") was filed on or July 15, 2014. A copy of the RJI and accompanying attorney affirmation is attached hereto as Exhibit 18. 31. On September 3, 2015, I conducted a search of the Department of Defense Manpower Data Center for Defendant Sherrel Farnsworth, who is over 18 years of age. The certified military status report provided for Defendant Sherrel Farnsworth indicates that she is not in active military service, as defined in the Servicemembers Civil Relief Act, 50 USC §521 ("SCRA"). 32. Specifically, Defendant Sherrel Farnsworth, whose last known address is at 240 2ªd Greene Avenue, 2 Floor, Brooklyn, NY 11238 (i) is not in the military service of the United States, as defined in the SCRA, (ii)is not in the military service of any nation allied with the United States, (iii) has not been ordered to report for induction under the selective training and service act of 1940 as amended, and (iv) is not a member of the enlisted reserve corps who has been ordered to report for military service. The Military Status Report verifying said belief is attached hereto as Exhibit 19. 33. The remaining Defendants, 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 Violations Bureau, John Doe a/k/a William Doe, and Jane Doe a/k/a Danielle Moore, have not answered or otherwise appeared in this action. 7 7 of 12 FILED: KINGS COUNTY CLERK 07/17/2018 04:58 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/17/2018 34. On January 31, 2015, this case was released from the settlement part as "not settled." LEGAL ARGUMENT L Default Judgment Should be Entered Against All Defendants. 35. CPLR 3012(c) requires an answer or other responsive pleading to be served within thirty days (30) after service of the pleading to which itresponds is completed. 36. Service upon Defendant Sherrel Farnsworth was completed over thirty (30) days ago. 37. To date, Defendant Sherrel Farnsworth has not filed an appearance, answer or other responsive pleading. 38. Service upon Defendant JPMorgan Chase Bank, N.A. was completed over thirty (30) days ago. 39. To date, Defendant JPMorgan Chase Bank, N.A. has not filed an appearance, answer or other responsive pleading. 40. Service upon Defendant RAB Performance Recoveries, LLC was completed over thirty (30) days ago. 41. To date, Defendant RAB Performance Recoveries, LLC has not filed an appearance, answer or other responsive pleading. 42. Service upon Defendant American Express Bank FSB was completed over thirty (30) days ago. 43. To date, Defendant American Express Bank FSB has not filed an appearance, answer or other responsive pleading. 44. Service upon Defendant Capital One Bank was completed over thirty (30) days ago. 8 8 of 12 FILED: KINGS COUNTY CLERK 07/17/2018 04:58 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 07/17/2018 45. To date, Defendant Capital One Bank has not filed an appearance, answer or other responsive pleading. 46. Service upon Defendant City of New York Transit Adjudication Bureau was completed over thirty (30) days ago. 47. To date, Defendant City of New York Transit Adjudication Bureau has not filed an appearance, answer or other responsive pleading. 48. Service upon Defendant New York City Environmental Control Board was completed over thirty (30) days ago. 49. To date, Defendant New York