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NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 12/16/2019
EXHIBIT M
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
I
JPMORGAN CHASE NATIONAL ~ Index No.: 506027/2014
BANK,
ASSOCIATION, SUCCESSOR IN INTEREST BY i
PURCHASE FROM THE FEDERAL DEPOSIT |
INSURANCE CORPORATION AS RECEIVER OF |
WASHINGTON MUTUAL BANK F/K/A AFFIRMATION IN OPPOSITION
,|
WASHINGTON MUTUAL I TO DEFENDANT'S ORDER TO
BANK, FA,
SUCCESSOR IN INTEREST TO NORTH i| SHOW CAUSE TO VACATE AND
AMERICAN MORTGAGE COMPANY, FOR A STAY
I
I
Plaintiff,
I
I
- against - l
I
I
PETER MCKENZIE; SHERREL FARNSWORTH |
A/K/A SHERREL A. JP '
FARNSWORTH; |
MORGAN CHASE BANK, N.A.; RAB i
PERFORMANCE RECOVERIES, LLC; |i
AMERICAN EXPRESS, FSB; CAPITAL ONE |
BANK; CITY OF NEW YORK TRANSIT |
ADJUDICATION NEW YORK CITY '
BUREAU; |
ENVIRONMENTAL CONTROL BOARD; NEW i
YORK CITY DEPARTMENT OF FINANCE - |>
BUREAU'
PARKING VIOLATIONS BUREAU; WILLIAM |
DOE; AND DANIELLE MOORE |
I
I
Defendants. I
I
I
I, Scott W. Parker, Esq., an attorney duly licensed to practice law in the State of New
York, affirm under penalty of perjury as follows:
1. I am a partner with the law firm of Parker lbrahim & Berg LLP, 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 Bank, FA, Successor in Interest to North American Mortgage Company
("Chase"
) in this action.
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2. I submit this affirmation in opposition to defendant Sherrel Farnsworth a/k/a
Sherrel A. Farnsworth's ("Farnsworth") Order to Show Cause to Vacate and for a Stay (the
cc C9»'
"OTSC").
3. Chase respectfully submits that the OTSC should be denied, Farnsworth's prior
default should be upheld, and Chase should be permitted to proceed with enforcement of the
Judgment of Foreclosure and Sale.
4. More than two years ago, this Court entered the default of Farnsworth, who failed
to respond to Chase's foreclosure complaint despite being properly served.
5. Farnsworth has now filed the instant OTSC seeking to vacate her default and stay
enforcement of the Judgment of Foreclosure and Sale, pursuant to CPLR 5015(a)(1), CPLR
justice."
5015(a)(3), and in the "interest of
6. None of Farnsworth's arguments in support ofher OTSC have any merit.
7. First, Farnsworth cannot rely upon CPLR 5015(a)(1) to vacate her default. On
July 8, 2016, Chase served the Notice of Entry for the court's order granting Farnsworth's
default as to Chase's complaint. Farnsworth, however, did not file her OTSC until June 12, 2018
- two years later. it is too late for Farnsworth to seek relief under CPLR
nearly Therefore,
5015(a)(1), which imposes a one-year time limitation.
8. In any event, Farnsworth cannot establish either a reasonable excuse or a
meritorious defense to vacate her default under CPLR 5015(a)(1). Farnsworth's allegations of
law office failure are vague, conclusory, and unsubstantiated, and cannot form the basis for a
reasonable excuse for her default. Even if Farnsworth had a reasonable excuse for her default
(and she does not), Farnsworth lacks any meritorious defense to justify vacating the default:
Chase had standing to commence the foreclosure action, and Farnsworth fails to articulate any
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alleged claim under the Real Estate Settlement Procedures Act ("RESPA"). (See 12 U.S.C. §
2601, et seq.)
9. Second, Farnsworth cannot establish "fraud, misrepresentation, or other
party"
misconduct of an adverse to justify vacating Farnsworth's default under CPLR
5015(a)(3). The two bases advanced by Farnsworth under CPLR 5015(a)(3) are: (1) Chase
named itself as a defendant in the foreclosure action; and (2) Chase asserted, in its Fifteenth
Affirmative Defense to Peter McKenzie's Answer & Counterclaims, that Chase did not assume
liability for borrower claims relating to mortgages originated by Washington Mutual Bank prior
to September 25, 2008, pursuant to the Purchase and Assumption Agreement between Chase and
the Federal Deposit Insurance Corporation.
10. Neither of these bases remotely establish grounds to vacate default under CPLR
5015(a)(3). Chase named itself as a defendant in the foreclosure action because, in addition to
the lien upon which Chase is foreclosing, Chase also held a junior lien on the subject property.
And, as the Appellate Division has repeatedly held, Chase did not assume the liability of
Washington Mutual Bank's loans and loan commitments that Chase acquired under the Purchase
and Assumption Agreement. Nor, for that matter, does Farnsworth explain how Chase's
assertion of an affirmative defense, in response to a counterclaim filed by someone other than
Farnsworth, somehow constitutes a basis to vacate Farnsworth's years-long default.
11. Third, there are no unique circumstances in this case that would justify the Court
using its inherent power to vacate itsjudgment in the interest ofjustice.
12. Fourth, this Court should reject Farnsworth's request to consolidate this
foreclosure action with a pending partition action between Farnsworth and Peter McKenzie
("McKenzie"). There are no common questions of law and fact: the instant action is unrelated
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to the dispute between Farnsworth and McKenzie, who both possess property interests subject to
Chase's mortgage. the partition action was filed in 2015 - more than three years ago.
Further,
Farnsworth's belated request for consolidation is nothing more than a thinly veiled attempt to
further delay the pending foreclosure action.
13. Fifth, and finally, this Court should decline Farnsworth's request to stay
enforcement of the Judgment of Foreclosure and Sale. Farnsworth is unlikely to prevail on the
merits, and a delay would significantly prejudice Chase; thus, a stay is inappropriate.
14. For all of the foregoing reasons, Chase respectfully requests that Farnsworth's
OTSC should be denied.
BACKGROUND
Loan Level Information
15. On May 29, 2001, Farnsworth executed a Note in the amount of $318,750.00, as
"Note" ("
attorney-in-fact for McKenzie (the "Note"), to North American Mortgage Company ("North
American"). The Note is endorsed in blank without recourse by North American. (See Affidavit
Merit"
of Merit and Amount Due (the "Affidavit of Merit") dated October 23, 2015, included with
Chase's First and Second Motions to Default and reproduced herein, ¶ 4 & Ex. B (NYSCEF
Doc. No. 59).)
16. The Note is secured by a Mortgage dated May 29, 2001 executed by Farnsworth,
in her individual capacity and as attorney-in-fact for McKenzie, in favor of North American (the
"Mortgage"
"Mortgage") for real property located at 240 Greene Avenue, Brooklyn, New York 11238 (the
Property"
"Subject Property"). (See id., ¶ 5 & Ex. A.) Collectively, the Note and Mortgage shall be
"Loan."
referred to as the
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17. On January 7, 2002, North American was acquired by Washington Mutual, Inc.,
the holding company of Washington Mutual Bank. (See id., ¶ 6 & Exs. C & D.)
18. On September 25, 2008, JPMorgan Chase Bank, National Association acquired
Agreement"
the Note and Mortgage pursuant to a Purchase and Assumption Agreement ("P&A Agreement")
("FDIC"
between Chase and the Federal Deposit Insurance Corporation ("FDIC"), acting as receiver for
Washington Mutual Bank, FA. (See id., ¶ 7 & Ex. E.)
19. 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, assigned all of its rights, title and interest in the Mortgage by way of an assignment
executed on January 29, 2015 to JPMorgan Chase Bank, National Association (the "Assignment
Mortgage"
of Mortgage"). The Assignment of Mortgage was duly recorded on February 18, 2015 with the
Kings County Clerk as Document ID: 2015020600197001. (See Farnsworth's OTSC reproduced
herein, Ex. H.)
20. McKenzie has been in default on the Note since July 1, 2008. (See Affidavit of
Merit, ¶ 9.)
The Instant Foreclosure Action, Farnsworth's Default, and the Entry of Judgment of
Foreclosure and Sale
21. On or about July 1, 2014, Chase filed the instant foreclosure complaint against
Farnsworth, McKenzie, and other individual and corporate defendants in the Supreme Court of
Action"
the State of New York, County of Kings (the "Foreclosure Action"). A true and correct copy of
the Complaint is attached hereto as Exhibit A.
22. On or about July 15, 2014, Chase filed a Request for Judicial Intervention ("RJI").
A true and correct copy of the RJI is attached hereto as Exhibit B.
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23. On or about July 28, 2014, McKenzie filed an Answer with affirmative defenses
("Answer"
and counterclaims ("Answer"). A true and correct copy of the Answer is attached hereto as
Exhibit C.
24. Farnsworth did not file a responsive pleading or otherwise appear in the
Foreclosure Action.
25. On or about March 22, 2016, Chase filed a Notice of Motion for Default
Default"
Judgment and to Amend Caption ("Chase's First Motion for Default"), seeking the default of
Farnsworth and other non-answering individual and corporate defendants. A true and correct
copy of the First Motion for Default is attached hereto as Exhibit D.
26. Due to non-appearance of any party, Chase's First Motion for Default was
marked off.
27. On or about April 21, 2016, Chase filed a second Notice of Motion for Default
Default"
Judgment and to Amend Caption ("Chase's Second Motion for Default"), seeking the default of
Farnsworth and other non-answering individuals and corporate defendants. A true and correct
copy of Chase's Second Motion for Default is attached hereto as Exhibit E.
28. By Order dated June 17, 2016, Chase's Second Motion for Default was granted as
to all non-answering individuals and corporate defendants, including Farnsworth (the "Default
Order"
Order"). A true and correct copy of the Default Order is attached hereto as Exhibit F.
29. On or about July 8, 2016, Chase filed a Notice of Entry of the Default Order by
which all individual and corporate defendants, including Farnsworth, were served notice of the
Default Order. A true and correct copy of the Notice of Entry of the Default Order, including the
Affirmation of Service on Farnsworth is attached hereto as Exhibit G.
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30. On or about January 18, 2017, Chase and McKenzie entered into a Stipulation and
Stipulation"
Consent to Entry of Judgment of Foreclosure and Sale (the "McKenzie Stipulation"). A true and
correct copy of the McKenzie Stipulation is attached hereto as Exhibit H.
31. On or about June 12, 2017, Chase filed a Notice of Motion for Judgment of
Sale"
Foreclosure and Sale (the "Motion for Judgment of Foreclosure and Sale"). A true and correct
copy of the Motion for Judgment of Foreclosure and Sale is attached hereto as Exhibit I.
32. By Order dated March 28, 2018, Chase's Motion for Judgment of Foreclosure and
Sale was granted. A true and correct copy of the Judgment of Foreclosure and Sale is attached
hereto as Exhibit J.
33. On or about May 15, 2018, Chase filed a Notice of Entry of the Judgment of
Foreclosure and Sale by which all individual and corporate defendants, including Farnsworth,
were served notice of the Judgment of Foreclosure and Sale. A true and correct copy of the
Notice of Entry of the Judgment of Foreclosure and Sale is attached hereto as Exhibit K.
Farnsworth's Instant OTSC
34. the above - the fact that a Judgment of Foreclosure
Notwithstanding including
and Sale has been entered - on or about June Farnsworth filed the instant
already 12, 2018,
OTSC, seeking to vacate her default and stay enforcement of the Judgment of Foreclosure and
Sale. A true and correct copy of Farnsworth's OTSC is attached hereto as Exhibit L.
35. Farnsworth's counsel offers the following explanation for failing to oppose
Chase's Second Motion for Default, and Chase's Motion for Judgment of Foreclosure and Sale:
The default was caused by an attorney with our firm who we assigned to handle
the case. He left the Firm without leaving us hand over notes. We found the file
just recently in a closed file cabinet. We were unaware that he did not know
prepare and file the answer. Neither were we aware that a default judgment was
entered against defendant Sherrel Farnsworth for defaulting.
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(Aff. of Kevin H. Spikes, dated June 12, 2018, ¶ 7 (NYSCEF Doc. No. 150.)
36. As a result of the OTSC, the June 14, 2018 sale of the Subject Property was
postponed and has not been rescheduled.
37. All of the grounds raised in Farnsworth's OTSC lack merit. Chase respectfully
submits that Farnsworth's OTSC should be denied, her default should not be vacated, and
enforcement of the Judgment of Foreclosure and Sale should not be stayed.
LEGAL ARGUMENT
I. THIS COURT SHOULD DENY FARNSWORTH'S REQUEST FOR VACATUR
PURSUANT TO CPLR 5015(A)(1)
38. This Court should reject Farnsworth's reliance upon CPLR 5015(a)(1) to vacate
her default, as it isboth untimely and, in any event, meritless.
39. CPLR 5015(a)(1) provides that a party moving to vacate a judgment may do so
upon the ground of "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
entry."
moving party has entered the judgment or order, within one year after such (emphasis
added)
40. In order to vacate an order under CPLR 5015(a)(1), a movant "must demonstrate
defense."
a reasonable excuse for its delay and the existence of a potentially meritorious (Henry
v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114 (2004); see also Wassertheil v. Elburg, LLC, 94
A.D.3d 753, 941 N.Y.S.2d 679 (2012); New Seven Colors Corp. v. White Bubble Laundromat,
Inc., 89 A.D.3d 701, 702, 931 N.Y.S.2d 899 (2011); Wells Fargo Bank, N.A. v. Cervini, 84
A.D.3d 789, 921 N.Y.S.2d 643 (2011).)
41. In this case, Farnsworth's OTSC to vacate default of her failure to timely respond
to Chase's complaint is untimely: the OTSC was filed more than a year after service of the
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Notice of Entry of Farnsworth's default. For this reason alone, Farnsworth's OTSC pursuant to
CPLR 5015(a)(1) should be denied. But even if Farnsworth's OTSC pursuant to CPLR
5015(a)(1) were timely, it should stillbe denied, because Farnsworth lacks both a reasonable
excuse and a meritorious defense for her default.
a. Farnsworth's Motion to Vacate Is Untimely
42. As set forth above, by Order dated June 17, 2016, Chase's Second Motion for
Default was granted as to all non-answering individuals and corporate defendants, including
Farnsworth. (See Exhibit F.)
43. Further, on July 8, 2016, Chase Bled a Notice of Entry of the Default Order, by
which all individual and corporate defendants, including Farnsworth, were served notice of the
Default Order. (See Exhibit G.)
44. Farnsworth, however, did not file her OTSC to vacate her default until June 12,
2018 - two years after the Notice of of the Default Order.
nearly Entry
45. Under CPLR 5015(a)(1), therefore, Farnsworth's OTSC is untimely.
Farnsworth's deadline to request her default be vacated pursuant to this statutory provision was
July 8, 2017.
46. For this reason alone, Farnsworth's request to vacate default under CPLR
5015(a)(1) should be denied. (See CPLR 5015(a)(1) (party moving to vacate judgment must
move within one year of service of copy of order with written notice of entry of the moving
party).)
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b. Farnsworth Does Not Proffer a Reasonable Excuse for Default
47. Because Farnsworth's OTSC pursuant to CPLR 5015(a)(1) is untimely, the court
need not even consider whether Farnsworth has a reasonable excuse or a meritorious defense.
Even if,however, the Court were to nonetheless consider this request, it should stillbe denied.
48. The Second Department has set forth the following criteria for whether an excuse
offered to vacate default is reasonable:
'reasonable'
Whether a proffered excuse is is a 'sui generis determination to be
made by the court based on all relevant factors, including the extent of the delay,
whether there has been prejudice to the opposing party, whether there has been
merits.'
willfulness, and the strong public policy in favor of resolving cases on the
(See Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 60, 970 N.Y.S.2d 260 (2013).)
The Court should further consider whether the "default was intentional, made in
action,"
action."
bad faith, or with an intent to abandon the
(Ahmad v. Aniolowiski, 28 A.D.3d 692, 693, 814 N.Y.S.2d 666, 667 (2006).)
49. In the instant action, Farnsworth contends that law office failure caused
Farnsworth to default as to Chase's foreclosure complaint. (See Aff. of Kevin H. Spikes, dated
June 12, 2018, ¶ 10 (NYSCEF Doc. No. 150).) Specifically, Farnsworth's counsel alleges in an
affirmation that the default was "caused by an [unidentified] attorney with our firm who we
case,"
assigned to handle the who "left the Firm without leaving us hand over notes", and who
cabinet" recently"
left the file in a "closed file that was "just located. Farnsworth's counsel
answer."
further alleges that the firm was "unaware that he did not know prepare and file the
(Id., ¶ 7.)
50. The excuse offered by Farnsworth's counsel is not reasonable, and cannot serve
as the basis to set aside Farnsworth's default under CPLR 5015(a)(1).
51. While "[d]ocumented law office failure may constitute a reasonable excuse for
default,"
(see Moore v. Day, 55 A.D.3d 803, 804, 866 N.Y.S.2d 303, 305 (2008)), such a claim
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must be supported by a detailed and credible explanation of the default. (See Servilus v. Walcott,
148 A.D.3d 743, 744, 48 N.Y.S.3d 494, 495 (App. Div. 2017).)
unsubstantiated"
52. "Vague, conclusory, and allegations of law office failure do not
provide a reasonable excuse. (Cantor v. Flores, 943 N.Y.S.2d 138, 138 (2d Dept. 2012); HSBC
Bank USA, N.A. v. Wider, 955 N.Y.S.2d 202, 203 (2d Dept. 2012) (same); Piton v. Cribb, 832
failure"
N.Y.S.2d 274, 275 (rejecting "conclusory and unsubstantiated claim of law office where
failure"
plaintiff "failed to adequately detail and substantiate the alleged law office failure").)
53. Here, Farnsworth's proffered excuse does not constitute a reasonable excuse
under the law. The attorney affirmation submitted in support of Farnsworth's OTSC is vague,
conclusory, and unsubstantiated:
• The affirmation fails to identify when the firm was first retained on behalf of
Farnsworth.
• The affirmation fails to identify the name of the attorney allegedly responsible for
the default.
• The affirmation fails to identify (1) when the attorney allegedly responsible for
the default started his employment at the firm, (2) when the attorney was initially
assigned the file,(3) whether any other attorneys were assigned to the file (e.g., a
supervisory attorney), (4) when the attorney left the firm, or (5) how long after the
attorney left that the firm allegedly determined that the file was "in a closed file
cabinet."
• The affirmation readily admits that the firm appeared "on several modification
conferences" -
(Ex. L, ¶ 8) but it does not identify which attorney attended the
conferences, or even which conferences the firm actually attended.
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54. Indeed, while the affirmation places blame for the default upon an unidentified
attorney, the affirmation does not explain why the firm failed to file a notice of appearance in
this case, even though Farnsworth was served with the complaint on July 7, 2014. (See
NYSCEF Doc. No. 45.)
55. Farnsworth's delay in this case has been extensive. Chase filed its foreclosure
complaint more than four years the Default Order against Farnsworth and the other non-
ago;
responding defendants was entered and served more than two years ago; and the motion for final
judgment was served on Farnsworth's attorneys on June 12, 2017. (See Exhibit I.)
56. Further, Chase would be significantly prejudiced by vacation of the years-long
default by Farnsworth. The Loan has been in default and unpaid for more than ten years. Indeed,
Chase was prepared to complete the sale of the Subject Property in June 2018, but the sale was
canceled based upon Farnsworth's OTSC. (See Aff. of Merit, ¶ 9 (NYSCEF Doc. No. 59).)
57. None of the case law cited by Farnsworth supports her argument. To the contrary,
each case confirms that the attorney affirmation must provide "a detailed explanation for the
neglect."
instances of (Gironda v. Katzen, 19 A.D.3d 644, 645, 798 N.Y.S.2d 109 (2d Dept.
2005) (vacating default where plaintiffs attorney of record "provided a detailed explanation for
neglect"
the instances of neglect"); Hageman v. Home Depot U.S.A., Inc., 25 A.D.3d 760, 761, 808
N.Y.S.2d 763 (2d Dept. 2006) ("the excuse of law office failure . .. was supported by detailed
and credible submissions"); Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114 (2d Dept.
2004) (default was caused by confusion as to response deadlines, and was accompanied by "a
failure"
detailed and credible excuse of law office failure").)
58. For these reasons, Farnsworth lacks a reasonable excuse, and has no grounds to
vacate default or the Judgment of Foreclosure and Sale.
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c. Farnsworth Does Not Have a Meritorious Defense
59. Because Farnsworth's OTSC is untimely, and Farnsworth lacks a reasonable
excuse, this Court need not consider if Farnsworth has a meritorious defense. (See Krieger v.
Cohan, 18 A.D.3d 823, 824, 796 N.Y.S.2d 633 (2d Dept. 2005); see also Mjahdi v. Maguire, 21
A.D.3d 1067, 1068, 802 N.Y.S.2d 700 (2d Dept. 2005); HSBC Bank USA, N.A. v. Roldan, 80
A.D.3d 566, 567, 914 N.Y.S.2d 647 (2d Dept. 2011); Star Industries, Inc. v. Innovative
Beverages, Inc., 55 A.D.3d 903, 866 N.Y.S.2d 357, 2008 N.Y. Slip Op. 08318 (2d Dept. 2008).)
60. Even if, however, this Court found that Farnsworth's excuse was reasonable, it
should stilldeny Farnsworth's request to vacate default.
61. As a threshold matter, Farnsworth asserts several arguments across and between
her counsel's Affirmation
Preview
FILED: KINGS COUNTY CLERK 12/16/2019 04:52 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 12/16/2019 EXHIBIT M FILED: KINGS COUNTY CLERK 07/17/2018 12/16/2019 04:58 04:52 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 166 226 RECEIVED NYSCEF: 07/17/2018 12/16/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS I JPMORGAN CHASE NATIONAL ~ Index No.: 506027/2014 BANK, ASSOCIATION, SUCCESSOR IN INTEREST BY i PURCHASE FROM THE FEDERAL DEPOSIT | INSURANCE CORPORATION AS RECEIVER OF | WASHINGTON MUTUAL BANK F/K/A AFFIRMATION IN OPPOSITION ,| WASHINGTON MUTUAL I TO DEFENDANT'S ORDER TO BANK, FA, SUCCESSOR IN INTEREST TO NORTH i| SHOW CAUSE TO VACATE AND AMERICAN MORTGAGE COMPANY, FOR A STAY I I Plaintiff, I I - against - l I I PETER MCKENZIE; SHERREL FARNSWORTH | A/K/A SHERREL A. JP ' FARNSWORTH; | MORGAN CHASE BANK, N.A.; RAB i PERFORMANCE RECOVERIES, LLC; |i AMERICAN EXPRESS, FSB; CAPITAL ONE | BANK; CITY OF NEW YORK TRANSIT | ADJUDICATION NEW YORK CITY ' BUREAU; | ENVIRONMENTAL CONTROL BOARD; NEW i YORK CITY DEPARTMENT OF FINANCE - |> BUREAU' PARKING VIOLATIONS BUREAU; WILLIAM | DOE; AND DANIELLE MOORE | I I Defendants. I I I I, Scott W. Parker, Esq., an attorney duly licensed to practice law in the State of New York, affirm under penalty of perjury as follows: 1. I am a partner with the law firm of Parker lbrahim & Berg LLP, 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 Bank, FA, Successor in Interest to North American Mortgage Company ("Chase" ) in this action. 1 of 27 FILED: KINGS COUNTY CLERK 07/17/2018 12/16/2019 04:58 04:52 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 166 226 RECEIVED NYSCEF: 07/17/2018 12/16/2019 2. I submit this affirmation in opposition to defendant Sherrel Farnsworth a/k/a Sherrel A. Farnsworth's ("Farnsworth") Order to Show Cause to Vacate and for a Stay (the cc C9»' "OTSC"). 3. Chase respectfully submits that the OTSC should be denied, Farnsworth's prior default should be upheld, and Chase should be permitted to proceed with enforcement of the Judgment of Foreclosure and Sale. 4. More than two years ago, this Court entered the default of Farnsworth, who failed to respond to Chase's foreclosure complaint despite being properly served. 5. Farnsworth has now filed the instant OTSC seeking to vacate her default and stay enforcement of the Judgment of Foreclosure and Sale, pursuant to CPLR 5015(a)(1), CPLR justice." 5015(a)(3), and in the "interest of 6. None of Farnsworth's arguments in support ofher OTSC have any merit. 7. First, Farnsworth cannot rely upon CPLR 5015(a)(1) to vacate her default. On July 8, 2016, Chase served the Notice of Entry for the court's order granting Farnsworth's default as to Chase's complaint. Farnsworth, however, did not file her OTSC until June 12, 2018 - two years later. it is too late for Farnsworth to seek relief under CPLR nearly Therefore, 5015(a)(1), which imposes a one-year time limitation. 8. In any event, Farnsworth cannot establish either a reasonable excuse or a meritorious defense to vacate her default under CPLR 5015(a)(1). Farnsworth's allegations of law office failure are vague, conclusory, and unsubstantiated, and cannot form the basis for a reasonable excuse for her default. Even if Farnsworth had a reasonable excuse for her default (and she does not), Farnsworth lacks any meritorious defense to justify vacating the default: Chase had standing to commence the foreclosure action, and Farnsworth fails to articulate any 2 2 of 27 FILED: KINGS COUNTY CLERK 07/17/2018 12/16/2019 04:58 04:52 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 166 226 RECEIVED NYSCEF: 07/17/2018 12/16/2019 alleged claim under the Real Estate Settlement Procedures Act ("RESPA"). (See 12 U.S.C. § 2601, et seq.) 9. Second, Farnsworth cannot establish "fraud, misrepresentation, or other party" misconduct of an adverse to justify vacating Farnsworth's default under CPLR 5015(a)(3). The two bases advanced by Farnsworth under CPLR 5015(a)(3) are: (1) Chase named itself as a defendant in the foreclosure action; and (2) Chase asserted, in its Fifteenth Affirmative Defense to Peter McKenzie's Answer & Counterclaims, that Chase did not assume liability for borrower claims relating to mortgages originated by Washington Mutual Bank prior to September 25, 2008, pursuant to the Purchase and Assumption Agreement between Chase and the Federal Deposit Insurance Corporation. 10. Neither of these bases remotely establish grounds to vacate default under CPLR 5015(a)(3). Chase named itself as a defendant in the foreclosure action because, in addition to the lien upon which Chase is foreclosing, Chase also held a junior lien on the subject property. And, as the Appellate Division has repeatedly held, Chase did not assume the liability of Washington Mutual Bank's loans and loan commitments that Chase acquired under the Purchase and Assumption Agreement. Nor, for that matter, does Farnsworth explain how Chase's assertion of an affirmative defense, in response to a counterclaim filed by someone other than Farnsworth, somehow constitutes a basis to vacate Farnsworth's years-long default. 11. Third, there are no unique circumstances in this case that would justify the Court using its inherent power to vacate itsjudgment in the interest ofjustice. 12. Fourth, this Court should reject Farnsworth's request to consolidate this foreclosure action with a pending partition action between Farnsworth and Peter McKenzie ("McKenzie"). There are no common questions of law and fact: the instant action is unrelated 3 3 of 27 FILED: KINGS COUNTY CLERK 07/17/2018 12/16/2019 04:58 04:52 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 166 226 RECEIVED NYSCEF: 07/17/2018 12/16/2019 to the dispute between Farnsworth and McKenzie, who both possess property interests subject to Chase's mortgage. the partition action was filed in 2015 - more than three years ago. Further, Farnsworth's belated request for consolidation is nothing more than a thinly veiled attempt to further delay the pending foreclosure action. 13. Fifth, and finally, this Court should decline Farnsworth's request to stay enforcement of the Judgment of Foreclosure and Sale. Farnsworth is unlikely to prevail on the merits, and a delay would significantly prejudice Chase; thus, a stay is inappropriate. 14. For all of the foregoing reasons, Chase respectfully requests that Farnsworth's OTSC should be denied. BACKGROUND Loan Level Information 15. On May 29, 2001, Farnsworth executed a Note in the amount of $318,750.00, as "Note" (" attorney-in-fact for McKenzie (the "Note"), to North American Mortgage Company ("North American"). The Note is endorsed in blank without recourse by North American. (See Affidavit Merit" of Merit and Amount Due (the "Affidavit of Merit") dated October 23, 2015, included with Chase's First and Second Motions to Default and reproduced herein, ¶ 4 & Ex. B (NYSCEF Doc. No. 59).) 16. The Note is secured by a Mortgage dated May 29, 2001 executed by Farnsworth, in her individual capacity and as attorney-in-fact for McKenzie, in favor of North American (the "Mortgage" "Mortgage") for real property located at 240 Greene Avenue, Brooklyn, New York 11238 (the Property" "Subject Property"). (See id., ¶ 5 & Ex. A.) Collectively, the Note and Mortgage shall be "Loan." referred to as the 4 4 of 27 FILED: KINGS COUNTY CLERK 07/17/2018 12/16/2019 04:58 04:52 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 166 226 RECEIVED NYSCEF: 07/17/2018 12/16/2019 17. On January 7, 2002, North American was acquired by Washington Mutual, Inc., the holding company of Washington Mutual Bank. (See id., ¶ 6 & Exs. C & D.) 18. On September 25, 2008, JPMorgan Chase Bank, National Association acquired Agreement" the Note and Mortgage pursuant to a Purchase and Assumption Agreement ("P&A Agreement") ("FDIC" between Chase and the Federal Deposit Insurance Corporation ("FDIC"), acting as receiver for Washington Mutual Bank, FA. (See id., ¶ 7 & Ex. E.) 19. 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, assigned all of its rights, title and interest in the Mortgage by way of an assignment executed on January 29, 2015 to JPMorgan Chase Bank, National Association (the "Assignment Mortgage" of Mortgage"). The Assignment of Mortgage was duly recorded on February 18, 2015 with the Kings County Clerk as Document ID: 2015020600197001. (See Farnsworth's OTSC reproduced herein, Ex. H.) 20. McKenzie has been in default on the Note since July 1, 2008. (See Affidavit of Merit, ¶ 9.) The Instant Foreclosure Action, Farnsworth's Default, and the Entry of Judgment of Foreclosure and Sale 21. On or about July 1, 2014, Chase filed the instant foreclosure complaint against Farnsworth, McKenzie, and other individual and corporate defendants in the Supreme Court of Action" the State of New York, County of Kings (the "Foreclosure Action"). A true and correct copy of the Complaint is attached hereto as Exhibit A. 22. On or about July 15, 2014, Chase filed a Request for Judicial Intervention ("RJI"). A true and correct copy of the RJI is attached hereto as Exhibit B. 5 5 of 27 FILED: KINGS COUNTY CLERK 07/17/2018 12/16/2019 04:58 04:52 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 166 226 RECEIVED NYSCEF: 07/17/2018 12/16/2019 23. On or about July 28, 2014, McKenzie filed an Answer with affirmative defenses ("Answer" and counterclaims ("Answer"). A true and correct copy of the Answer is attached hereto as Exhibit C. 24. Farnsworth did not file a responsive pleading or otherwise appear in the Foreclosure Action. 25. On or about March 22, 2016, Chase filed a Notice of Motion for Default Default" Judgment and to Amend Caption ("Chase's First Motion for Default"), seeking the default of Farnsworth and other non-answering individual and corporate defendants. A true and correct copy of the First Motion for Default is attached hereto as Exhibit D. 26. Due to non-appearance of any party, Chase's First Motion for Default was marked off. 27. On or about April 21, 2016, Chase filed a second Notice of Motion for Default Default" Judgment and to Amend Caption ("Chase's Second Motion for Default"), seeking the default of Farnsworth and other non-answering individuals and corporate defendants. A true and correct copy of Chase's Second Motion for Default is attached hereto as Exhibit E. 28. By Order dated June 17, 2016, Chase's Second Motion for Default was granted as to all non-answering individuals and corporate defendants, including Farnsworth (the "Default Order" Order"). A true and correct copy of the Default Order is attached hereto as Exhibit F. 29. On or about July 8, 2016, Chase filed a Notice of Entry of the Default Order by which all individual and corporate defendants, including Farnsworth, were served notice of the Default Order. A true and correct copy of the Notice of Entry of the Default Order, including the Affirmation of Service on Farnsworth is attached hereto as Exhibit G. 6 6 of 27 FILED: KINGS COUNTY CLERK 07/17/2018 12/16/2019 04:58 04:52 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 166 226 RECEIVED NYSCEF: 07/17/2018 12/16/2019 30. On or about January 18, 2017, Chase and McKenzie entered into a Stipulation and Stipulation" Consent to Entry of Judgment of Foreclosure and Sale (the "McKenzie Stipulation"). A true and correct copy of the McKenzie Stipulation is attached hereto as Exhibit H. 31. On or about June 12, 2017, Chase filed a Notice of Motion for Judgment of Sale" Foreclosure and Sale (the "Motion for Judgment of Foreclosure and Sale"). A true and correct copy of the Motion for Judgment of Foreclosure and Sale is attached hereto as Exhibit I. 32. By Order dated March 28, 2018, Chase's Motion for Judgment of Foreclosure and Sale was granted. A true and correct copy of the Judgment of Foreclosure and Sale is attached hereto as Exhibit J. 33. On or about May 15, 2018, Chase filed a Notice of Entry of the Judgment of Foreclosure and Sale by which all individual and corporate defendants, including Farnsworth, were served notice of the Judgment of Foreclosure and Sale. A true and correct copy of the Notice of Entry of the Judgment of Foreclosure and Sale is attached hereto as Exhibit K. Farnsworth's Instant OTSC 34. the above - the fact that a Judgment of Foreclosure Notwithstanding including and Sale has been entered - on or about June Farnsworth filed the instant already 12, 2018, OTSC, seeking to vacate her default and stay enforcement of the Judgment of Foreclosure and Sale. A true and correct copy of Farnsworth's OTSC is attached hereto as Exhibit L. 35. Farnsworth's counsel offers the following explanation for failing to oppose Chase's Second Motion for Default, and Chase's Motion for Judgment of Foreclosure and Sale: The default was caused by an attorney with our firm who we assigned to handle the case. He left the Firm without leaving us hand over notes. We found the file just recently in a closed file cabinet. We were unaware that he did not know prepare and file the answer. Neither were we aware that a default judgment was entered against defendant Sherrel Farnsworth for defaulting. 7 7 of 27 FILED: KINGS COUNTY CLERK 07/17/2018 12/16/2019 04:58 04:52 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 166 226 RECEIVED NYSCEF: 07/17/2018 12/16/2019 (Aff. of Kevin H. Spikes, dated June 12, 2018, ¶ 7 (NYSCEF Doc. No. 150.) 36. As a result of the OTSC, the June 14, 2018 sale of the Subject Property was postponed and has not been rescheduled. 37. All of the grounds raised in Farnsworth's OTSC lack merit. Chase respectfully submits that Farnsworth's OTSC should be denied, her default should not be vacated, and enforcement of the Judgment of Foreclosure and Sale should not be stayed. LEGAL ARGUMENT I. THIS COURT SHOULD DENY FARNSWORTH'S REQUEST FOR VACATUR PURSUANT TO CPLR 5015(A)(1) 38. This Court should reject Farnsworth's reliance upon CPLR 5015(a)(1) to vacate her default, as it isboth untimely and, in any event, meritless. 39. CPLR 5015(a)(1) provides that a party moving to vacate a judgment may do so upon the ground of "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 entry." moving party has entered the judgment or order, within one year after such (emphasis added) 40. In order to vacate an order under CPLR 5015(a)(1), a movant "must demonstrate defense." a reasonable excuse for its delay and the existence of a potentially meritorious (Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114 (2004); see also Wassertheil v. Elburg, LLC, 94 A.D.3d 753, 941 N.Y.S.2d 679 (2012); New Seven Colors Corp. v. White Bubble Laundromat, Inc., 89 A.D.3d 701, 702, 931 N.Y.S.2d 899 (2011); Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d 789, 921 N.Y.S.2d 643 (2011).) 41. In this case, Farnsworth's OTSC to vacate default of her failure to timely respond to Chase's complaint is untimely: the OTSC was filed more than a year after service of the 8 8 of 27 FILED: KINGS COUNTY CLERK 07/17/2018 12/16/2019 04:58 04:52 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 166 226 RECEIVED NYSCEF: 07/17/2018 12/16/2019 Notice of Entry of Farnsworth's default. For this reason alone, Farnsworth's OTSC pursuant to CPLR 5015(a)(1) should be denied. But even if Farnsworth's OTSC pursuant to CPLR 5015(a)(1) were timely, it should stillbe denied, because Farnsworth lacks both a reasonable excuse and a meritorious defense for her default. a. Farnsworth's Motion to Vacate Is Untimely 42. As set forth above, by Order dated June 17, 2016, Chase's Second Motion for Default was granted as to all non-answering individuals and corporate defendants, including Farnsworth. (See Exhibit F.) 43. Further, on July 8, 2016, Chase Bled a Notice of Entry of the Default Order, by which all individual and corporate defendants, including Farnsworth, were served notice of the Default Order. (See Exhibit G.) 44. Farnsworth, however, did not file her OTSC to vacate her default until June 12, 2018 - two years after the Notice of of the Default Order. nearly Entry 45. Under CPLR 5015(a)(1), therefore, Farnsworth's OTSC is untimely. Farnsworth's deadline to request her default be vacated pursuant to this statutory provision was July 8, 2017. 46. For this reason alone, Farnsworth's request to vacate default under CPLR 5015(a)(1) should be denied. (See CPLR 5015(a)(1) (party moving to vacate judgment must move within one year of service of copy of order with written notice of entry of the moving party).) 9 9 of 27 FILED: KINGS COUNTY CLERK 07/17/2018 12/16/2019 04:58 04:52 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 166 226 RECEIVED NYSCEF: 07/17/2018 12/16/2019 b. Farnsworth Does Not Proffer a Reasonable Excuse for Default 47. Because Farnsworth's OTSC pursuant to CPLR 5015(a)(1) is untimely, the court need not even consider whether Farnsworth has a reasonable excuse or a meritorious defense. Even if,however, the Court were to nonetheless consider this request, it should stillbe denied. 48. The Second Department has set forth the following criteria for whether an excuse offered to vacate default is reasonable: 'reasonable' Whether a proffered excuse is is a 'sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been merits.' willfulness, and the strong public policy in favor of resolving cases on the (See Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 60, 970 N.Y.S.2d 260 (2013).) The Court should further consider whether the "default was intentional, made in action," action." bad faith, or with an intent to abandon the (Ahmad v. Aniolowiski, 28 A.D.3d 692, 693, 814 N.Y.S.2d 666, 667 (2006).) 49. In the instant action, Farnsworth contends that law office failure caused Farnsworth to default as to Chase's foreclosure complaint. (See Aff. of Kevin H. Spikes, dated June 12, 2018, ¶ 10 (NYSCEF Doc. No. 150).) Specifically, Farnsworth's counsel alleges in an affirmation that the default was "caused by an [unidentified] attorney with our firm who we case," assigned to handle the who "left the Firm without leaving us hand over notes", and who cabinet" recently" left the file in a "closed file that was "just located. Farnsworth's counsel answer." further alleges that the firm was "unaware that he did not know prepare and file the (Id., ¶ 7.) 50. The excuse offered by Farnsworth's counsel is not reasonable, and cannot serve as the basis to set aside Farnsworth's default under CPLR 5015(a)(1). 51. While "[d]ocumented law office failure may constitute a reasonable excuse for default," (see Moore v. Day, 55 A.D.3d 803, 804, 866 N.Y.S.2d 303, 305 (2008)), such a claim 10 10 of 27 FILED: KINGS COUNTY CLERK 07/17/2018 12/16/2019 04:58 04:52 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 166 226 RECEIVED NYSCEF: 07/17/2018 12/16/2019 must be supported by a detailed and credible explanation of the default. (See Servilus v. Walcott, 148 A.D.3d 743, 744, 48 N.Y.S.3d 494, 495 (App. Div. 2017).) unsubstantiated" 52. "Vague, conclusory, and allegations of law office failure do not provide a reasonable excuse. (Cantor v. Flores, 943 N.Y.S.2d 138, 138 (2d Dept. 2012); HSBC Bank USA, N.A. v. Wider, 955 N.Y.S.2d 202, 203 (2d Dept. 2012) (same); Piton v. Cribb, 832 failure" N.Y.S.2d 274, 275 (rejecting "conclusory and unsubstantiated claim of law office where failure" plaintiff "failed to adequately detail and substantiate the alleged law office failure").) 53. Here, Farnsworth's proffered excuse does not constitute a reasonable excuse under the law. The attorney affirmation submitted in support of Farnsworth's OTSC is vague, conclusory, and unsubstantiated: • The affirmation fails to identify when the firm was first retained on behalf of Farnsworth. • The affirmation fails to identify the name of the attorney allegedly responsible for the default. • The affirmation fails to identify (1) when the attorney allegedly responsible for the default started his employment at the firm, (2) when the attorney was initially assigned the file,(3) whether any other attorneys were assigned to the file (e.g., a supervisory attorney), (4) when the attorney left the firm, or (5) how long after the attorney left that the firm allegedly determined that the file was "in a closed file cabinet." • The affirmation readily admits that the firm appeared "on several modification conferences" - (Ex. L, ¶ 8) but it does not identify which attorney attended the conferences, or even which conferences the firm actually attended. 11 11 of 27 FILED: KINGS COUNTY CLERK 07/17/2018 12/16/2019 04:58 04:52 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 166 226 RECEIVED NYSCEF: 07/17/2018 12/16/2019 54. Indeed, while the affirmation places blame for the default upon an unidentified attorney, the affirmation does not explain why the firm failed to file a notice of appearance in this case, even though Farnsworth was served with the complaint on July 7, 2014. (See NYSCEF Doc. No. 45.) 55. Farnsworth's delay in this case has been extensive. Chase filed its foreclosure complaint more than four years the Default Order against Farnsworth and the other non- ago; responding defendants was entered and served more than two years ago; and the motion for final judgment was served on Farnsworth's attorneys on June 12, 2017. (See Exhibit I.) 56. Further, Chase would be significantly prejudiced by vacation of the years-long default by Farnsworth. The Loan has been in default and unpaid for more than ten years. Indeed, Chase was prepared to complete the sale of the Subject Property in June 2018, but the sale was canceled based upon Farnsworth's OTSC. (See Aff. of Merit, ¶ 9 (NYSCEF Doc. No. 59).) 57. None of the case law cited by Farnsworth supports her argument. To the contrary, each case confirms that the attorney affirmation must provide "a detailed explanation for the neglect." instances of (Gironda v. Katzen, 19 A.D.3d 644, 645, 798 N.Y.S.2d 109 (2d Dept. 2005) (vacating default where plaintiffs attorney of record "provided a detailed explanation for neglect" the instances of neglect"); Hageman v. Home Depot U.S.A., Inc., 25 A.D.3d 760, 761, 808 N.Y.S.2d 763 (2d Dept. 2006) ("the excuse of law office failure . .. was supported by detailed and credible submissions"); Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114 (2d Dept. 2004) (default was caused by confusion as to response deadlines, and was accompanied by "a failure" detailed and credible excuse of law office failure").) 58. For these reasons, Farnsworth lacks a reasonable excuse, and has no grounds to vacate default or the Judgment of Foreclosure and Sale. 12 12 of 27 FILED: KINGS COUNTY CLERK 07/17/2018 12/16/2019 04:58 04:52 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 166 226 RECEIVED NYSCEF: 07/17/2018 12/16/2019 c. Farnsworth Does Not Have a Meritorious Defense 59. Because Farnsworth's OTSC is untimely, and Farnsworth lacks a reasonable excuse, this Court need not consider if Farnsworth has a meritorious defense. (See Krieger v. Cohan, 18 A.D.3d 823, 824, 796 N.Y.S.2d 633 (2d Dept. 2005); see also Mjahdi v. Maguire, 21 A.D.3d 1067, 1068, 802 N.Y.S.2d 700 (2d Dept. 2005); HSBC Bank USA, N.A. v. Roldan, 80 A.D.3d 566, 567, 914 N.Y.S.2d 647 (2d Dept. 2011); Star Industries, Inc. v. Innovative Beverages, Inc., 55 A.D.3d 903, 866 N.Y.S.2d 357, 2008 N.Y. Slip Op. 08318 (2d Dept. 2008).) 60. Even if, however, this Court found that Farnsworth's excuse was reasonable, it should stilldeny Farnsworth's request to vacate default. 61. As a threshold matter, Farnsworth asserts several arguments across and between her counsel's Affirmation