On July 01, 2014 a
Motion-Secondary
was filed
involving a dispute between
Jpmorgan Chase Bank, National Association, Successor In Interest By Purchase From The Federal Doposit Insurance Corporation As Receiver Of Washington Mutual Bank F K A Washington Mutual Bank, Fa, Successor In Interest To North American Mortgage Company,
and
American Express Bank Fsb,
Capital One Bank,
City Of New York Transit Adjudication Bureau,
John Doe And Jane Doe,
Jpmorgan Chase Bank, N.A.,
New York City Environmental Control Board,
Nyc Department Of Finance-Parking Violations Bureau,
Peter K. Mckenzie,
Rab Performance Recoveries, Llc,
Sherrel Farnesworth
A K A Sherrel A. Farnsworth,
for Foreclosure (residential mortgage)
in the District Court of Kings County.
Preview
FILED: KINGS COUNTY CLERK 05/15/2020 09:31 AM INDEX NO. 506027/2014
NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 05/15/2020
EXHIBIT N
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AM INDEX NO. 506027/2014
NYSCEF DOC. NO. 180
266 RECEIVED NYSCEF: 08/07/2018
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KING
X
JP MORGAN CHASE BANK, NATIONAL ASSOCIATION INDEX NUM
SUCCESSOR IN INTEREST BY PURCHASE FROM THE REPLY
DEPOSIT INSURANCE CORPORATION AS RECEIVER OF
WASHINGTON MUTUAL BANK FKA WASHINGTON
FA.'
MUTUAL BANK, SUCCESSOR IN INTEREST TO NORTH
AMERICAN MORTGAGE COMPANY,
PLAINTIFF,
-Against-
PETER MCKENZIE; SHERREL FARNSWORTH A/K/A SHERREL
A.FARNSWORTH; JP; JP MORGAN CHASE BANK, N.A; RAB
PERFORMANCE RECOVERIES, LLC; AMERICAN EXPRESS;
FSB, CAPITAL ONE BANK; CITY OF NEW YORK TRANSIT
ADJUDICATION BUREAU; NEW YORK; NEW YORK CITY
ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY
DEPARTMENT OF FINANCE - PARKING VIOLATIONS BUREAU
WILLIAM DOE AND DANIELLE MOORE,
DEFENDANTS.
X
1. Kevin H. Spikes, Esq., Partner to the Firm of Thomas & Spikes,
duly admitted to practice law before the courts of the State of New York do
following under penalties of perjury.
2. I submit this reply affirmation in response to plaintiff's opposition
support of our order to show cause seeking to vacate the judgments entered
1 of 7
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for the default judgment and the judgment of foreclosure and sale and the fact
Sherrel Farnsworth has good defenses to the foreclosure action.
4. Furthermore, no notice of sale of the property was sent to defendant S
The plaintiff having surreptitiously attempted to sell off the property without n
opposition papers, Plaintiff overlooked most of the authority and arguments
defendant Sherrel in her Order to Show Cause. They misstated the law and m
facts of the case. They offered no reason for the bank's failure to notify
Farnsworth of the auction date.
5. Plaintiff asked Ms. Sherrel to cure the default by paying $186760 dolla
allow her to modify the loan. They accepted mortgage payments from her a
the property has been her residence for about 15 years. At the inception of th
they were very eager to consummate the transaction and even structured the l
allowing her exercise
ownership rights. They set up the property for an auction
failed to notify her of the auction date.
6. In his opposing affirmation, plaintiff argued that defendant Sherrel's time
judgment exceeded one year and had expired. "The one year period is not a s
and a court has discretion to consider a motion to vacate a default judgment
2 of 7
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7. Furthermore, the defendant's law Office failure excuse for the delay is
and detailed as to the facts. The defendant has meritorious defenses to the forec
did not show an intention to abandon the case. The Plaintiff's refusal to
Sherrel an opportunity to modify the loan despite giving her a notice to
paying $186,760 dollars, delayed the proceedings. Hence no prejudice wa
plaintiff for the delay.
8. Following CPLR 2005 and its support case law, it is provident for t
defendant's law office failure excuse as it presents a reasonable excuse
..."
Burgess v. Brooklyn Jewish Hospital 272 A.D 2 d 668 The Suprem
accepted law office failure as an excuse for the plaintiffs failure to timely s
2005)."
response to the defendant's demand therefor (see, CPLR Additionally,
courts lean heavily on the strong public policy in favor of resolving
cases on t
9. By asserting that they are not liable for borrower claims for transactions
September 25, 2008, plaintiff admits that he did not acquire any interest in the
on this loan transaction. The transaction occurred on May 29, 2001, way bef
borrowers'
2008. Without rights to assert defenses/claims, the note and mortga
at all acquired by JPMC, are invalid. See Exhibit F, Bank's counterclaim. Furt
erred in judgment 3 of
of 7foreclosure on instruments did not acqui
obtaining they
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10. Plaintiff stated clearly in his response to McKenzie's counterclaim that
borrowers'
plaintiff had liability to defenses and counterclaims. See "Fiftee
defense: Pursuant to the Purchase and Assumption Agreement between Plaintiff
Deposit Insurance Corporation, plaintiff did not assume any liability
associated
such as Defendant's - counterclaims to mortgages executed prior to
relating
by Washington Mutual Bank. Rather, the Federal Insurance Deposit Corporation
claims"
Washington Mutual Bank remains liable for such
11. As at August 20, 2014, the date the defenses to McKenzie's counterclaims
that is after the plaintiff filed the summons and complaint, no borrower c
defenses against this loan. The FDIC was still liable for these claims.
assignment of the mortgage from FDIC to Chase was executed in 2015. Giv
can safely deduce that the note and the mortgage had not been acquired by
time the lawsuit was filed. That is in 2014.
12. Plaintiff's posture that FDIC transferred all it's WAMU instruments
The industry analysis did not state that all WAMU instruments that is note
transferred FDIC to 4 of 7 instead it said all.
by plaintiff, substantially Regardless,
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AM INDEX NO. 506027/2014
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13. Furthermore, the assignment annexed here was false and upon information
executed a robo - signer. The purported assignment of the mortgage the
by to
and no interests were transferred by it to the plaintiff.
14. Paragraph 111 of plaintiffs opposition affirmation argues against
foreclosure case and the partition action and states that Ms. Farnsworth will
notes through the joint trial of the partition action and the foreclosure action.
articulate
why he believes Farnsworth will not be added to the note, his conduct
of the loan and during the life of the loan shows him according ownership
Farnsworth. Who is about to lose a house she owns 99 percent interest in, live
paying mortgage on, to foreclosure. The other interest owner to the property
Plaintiff formatted the loan in a way that highlighted Farnsworth's ownership
15. When the loan went into foreclosure, they refused to allow Farnsworth
Despite the role they played during the loan transaction. Plaintiff is als
Farnsworth's partition action. Farnsworth and Mckenzie are in agreement
Mckenzie off of his one percent interest. Plaintiff goes to auction the property
notice on Farnsworth. They knew to give Farnsworth a notice to cure the
5 of 7
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will prejudice a substantial right of the parties. Farnsworth's proposed answer
the motion to vacate. Plaintiff's move to surreptitiously auction the property
Farnsworth notice is fraudulent/ misrepresentation / deceptive one or
necessitates a vacation of the judgment of foreclosure and sale.
17. Ms. Farnsworth's case has merits, she will lose her residence which she
more than fifteen years. used her inheritance funds from her late father to
upkeep, the balance of equities lay heavily in her favor.
Dated: August 7, 2018
Brooklyn, New York
evin H. Spikes,
At orney for Defendant Sh
6 of 7
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KING
JP MORGAN CHASE BANK, NATIONAL ASSOCIATION INDEX NUM
SUCCESSOR IN INTEREST BY PURCHASE FROM THE REPLY
DEPOSIT INSURANCE CORPORATION AS RECEIVER OF
WASHINGTON MUTUAL BANK FKA WASHINGTON
FA.'
MUTUAL BANK, SUCCESSOR IN INTEREST TO NORTH
AMERICAN MORTGAGE COMPANY,
PLAINTIFF,
-Against-
PETER MCKENZIE; SHERREL FARNSWORTH A/K/A SHERREL
A.FARNSWORTH; JP; JP MORGAN CHASE BANK, N.A; RAB
PERFORMANCE RECOVERIES, LLC; AMERICAN EXPRESS;
FSB, CAPITAL ONE BANK; CITY OF NEW YORK TRANSIT
ADJUDICATION BUREAU; NEW YORK; NEW YORK CITY
ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY
DEPARTMENT OF FINANCE - PARKING VIOLATIONS BUREAU
WILLIAM DOE AND DANIELLE MOORE,
DEFENDANTS.
REPLY AFFIRMATION
Kevin H. Spikes
7 of 7
Thomas 5 Spikes, Esqs.
Preview
FILED: KINGS COUNTY CLERK 05/15/2020 09:31 AM INDEX NO. 506027/2014 NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 05/15/2020 EXHIBIT N FILED: KINGS COUNTY CLERK 08/07/2018 05/15/2020 04:45 09:31 PM AM INDEX NO. 506027/2014 NYSCEF DOC. NO. 180 266 RECEIVED NYSCEF: 08/07/2018 05/15/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KING X JP MORGAN CHASE BANK, NATIONAL ASSOCIATION INDEX NUM SUCCESSOR IN INTEREST BY PURCHASE FROM THE REPLY DEPOSIT INSURANCE CORPORATION AS RECEIVER OF WASHINGTON MUTUAL BANK FKA WASHINGTON FA.' MUTUAL BANK, SUCCESSOR IN INTEREST TO NORTH AMERICAN MORTGAGE COMPANY, PLAINTIFF, -Against- PETER MCKENZIE; SHERREL FARNSWORTH A/K/A SHERREL A.FARNSWORTH; JP; JP MORGAN CHASE BANK, N.A; RAB PERFORMANCE RECOVERIES, LLC; AMERICAN EXPRESS; FSB, CAPITAL ONE BANK; CITY OF NEW YORK TRANSIT ADJUDICATION BUREAU; NEW YORK; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY DEPARTMENT OF FINANCE - PARKING VIOLATIONS BUREAU WILLIAM DOE AND DANIELLE MOORE, DEFENDANTS. X 1. Kevin H. Spikes, Esq., Partner to the Firm of Thomas & Spikes, duly admitted to practice law before the courts of the State of New York do following under penalties of perjury. 2. I submit this reply affirmation in response to plaintiff's opposition support of our order to show cause seeking to vacate the judgments entered 1 of 7 FILED: KINGS COUNTY CLERK 08/07/2018 05/15/2020 04:45 09:31 PM AM INDEX NO. 506027/2014 NYSCEF DOC. NO. 180 266 RECEIVED NYSCEF: 08/07/2018 05/15/2020 for the default judgment and the judgment of foreclosure and sale and the fact Sherrel Farnsworth has good defenses to the foreclosure action. 4. Furthermore, no notice of sale of the property was sent to defendant S The plaintiff having surreptitiously attempted to sell off the property without n opposition papers, Plaintiff overlooked most of the authority and arguments defendant Sherrel in her Order to Show Cause. They misstated the law and m facts of the case. They offered no reason for the bank's failure to notify Farnsworth of the auction date. 5. Plaintiff asked Ms. Sherrel to cure the default by paying $186760 dolla allow her to modify the loan. They accepted mortgage payments from her a the property has been her residence for about 15 years. At the inception of th they were very eager to consummate the transaction and even structured the l allowing her exercise ownership rights. They set up the property for an auction failed to notify her of the auction date. 6. In his opposing affirmation, plaintiff argued that defendant Sherrel's time judgment exceeded one year and had expired. "The one year period is not a s and a court has discretion to consider a motion to vacate a default judgment 2 of 7 FILED: KINGS COUNTY CLERK 08/07/2018 05/15/2020 04:45 09:31 PM AM INDEX NO. 506027/2014 NYSCEF DOC. NO. 180 266 RECEIVED NYSCEF: 08/07/2018 05/15/2020 7. Furthermore, the defendant's law Office failure excuse for the delay is and detailed as to the facts. The defendant has meritorious defenses to the forec did not show an intention to abandon the case. The Plaintiff's refusal to Sherrel an opportunity to modify the loan despite giving her a notice to paying $186,760 dollars, delayed the proceedings. Hence no prejudice wa plaintiff for the delay. 8. Following CPLR 2005 and its support case law, it is provident for t defendant's law office failure excuse as it presents a reasonable excuse ..." Burgess v. Brooklyn Jewish Hospital 272 A.D 2 d 668 The Suprem accepted law office failure as an excuse for the plaintiffs failure to timely s 2005)." response to the defendant's demand therefor (see, CPLR Additionally, courts lean heavily on the strong public policy in favor of resolving cases on t 9. By asserting that they are not liable for borrower claims for transactions September 25, 2008, plaintiff admits that he did not acquire any interest in the on this loan transaction. The transaction occurred on May 29, 2001, way bef borrowers' 2008. Without rights to assert defenses/claims, the note and mortga at all acquired by JPMC, are invalid. See Exhibit F, Bank's counterclaim. Furt erred in judgment 3 of of 7foreclosure on instruments did not acqui obtaining they FILED: KINGS COUNTY CLERK 08/07/2018 05/15/2020 04:45 09:31 PM AM INDEX NO. 506027/2014 NYSCEF DOC. NO. 180 266 RECEIVED NYSCEF: 08/07/2018 05/15/2020 10. Plaintiff stated clearly in his response to McKenzie's counterclaim that borrowers' plaintiff had liability to defenses and counterclaims. See "Fiftee defense: Pursuant to the Purchase and Assumption Agreement between Plaintiff Deposit Insurance Corporation, plaintiff did not assume any liability associated such as Defendant's - counterclaims to mortgages executed prior to relating by Washington Mutual Bank. Rather, the Federal Insurance Deposit Corporation claims" Washington Mutual Bank remains liable for such 11. As at August 20, 2014, the date the defenses to McKenzie's counterclaims that is after the plaintiff filed the summons and complaint, no borrower c defenses against this loan. The FDIC was still liable for these claims. assignment of the mortgage from FDIC to Chase was executed in 2015. Giv can safely deduce that the note and the mortgage had not been acquired by time the lawsuit was filed. That is in 2014. 12. Plaintiff's posture that FDIC transferred all it's WAMU instruments The industry analysis did not state that all WAMU instruments that is note transferred FDIC to 4 of 7 instead it said all. by plaintiff, substantially Regardless, FILED: KINGS COUNTY CLERK 08/07/2018 05/15/2020 04:45 09:31 PM AM INDEX NO. 506027/2014 NYSCEF DOC. NO. 180 266 RECEIVED NYSCEF: 08/07/2018 05/15/2020 13. Furthermore, the assignment annexed here was false and upon information executed a robo - signer. The purported assignment of the mortgage the by to and no interests were transferred by it to the plaintiff. 14. Paragraph 111 of plaintiffs opposition affirmation argues against foreclosure case and the partition action and states that Ms. Farnsworth will notes through the joint trial of the partition action and the foreclosure action. articulate why he believes Farnsworth will not be added to the note, his conduct of the loan and during the life of the loan shows him according ownership Farnsworth. Who is about to lose a house she owns 99 percent interest in, live paying mortgage on, to foreclosure. The other interest owner to the property Plaintiff formatted the loan in a way that highlighted Farnsworth's ownership 15. When the loan went into foreclosure, they refused to allow Farnsworth Despite the role they played during the loan transaction. Plaintiff is als Farnsworth's partition action. Farnsworth and Mckenzie are in agreement Mckenzie off of his one percent interest. Plaintiff goes to auction the property notice on Farnsworth. They knew to give Farnsworth a notice to cure the 5 of 7 FILED: KINGS COUNTY CLERK 08/07/2018 05/15/2020 04:45 09:31 PM AM INDEX NO. 506027/2014 NYSCEF DOC. NO. 180 266 RECEIVED NYSCEF: 08/07/2018 05/15/2020 will prejudice a substantial right of the parties. Farnsworth's proposed answer the motion to vacate. Plaintiff's move to surreptitiously auction the property Farnsworth notice is fraudulent/ misrepresentation / deceptive one or necessitates a vacation of the judgment of foreclosure and sale. 17. Ms. Farnsworth's case has merits, she will lose her residence which she more than fifteen years. used her inheritance funds from her late father to upkeep, the balance of equities lay heavily in her favor. Dated: August 7, 2018 Brooklyn, New York evin H. Spikes, At orney for Defendant Sh 6 of 7 FILED: KINGS COUNTY CLERK 08/07/2018 05/15/2020 04:45 09:31 PM AM INDEX NO. 506027/2014 NYSCEF DOC. NO. 180 266 RECEIVED NYSCEF: 08/07/2018 05/15/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KING JP MORGAN CHASE BANK, NATIONAL ASSOCIATION INDEX NUM SUCCESSOR IN INTEREST BY PURCHASE FROM THE REPLY DEPOSIT INSURANCE CORPORATION AS RECEIVER OF WASHINGTON MUTUAL BANK FKA WASHINGTON FA.' MUTUAL BANK, SUCCESSOR IN INTEREST TO NORTH AMERICAN MORTGAGE COMPANY, PLAINTIFF, -Against- PETER MCKENZIE; SHERREL FARNSWORTH A/K/A SHERREL A.FARNSWORTH; JP; JP MORGAN CHASE BANK, N.A; RAB PERFORMANCE RECOVERIES, LLC; AMERICAN EXPRESS; FSB, CAPITAL ONE BANK; CITY OF NEW YORK TRANSIT ADJUDICATION BUREAU; NEW YORK; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY DEPARTMENT OF FINANCE - PARKING VIOLATIONS BUREAU WILLIAM DOE AND DANIELLE MOORE, DEFENDANTS. REPLY AFFIRMATION Kevin H. Spikes 7 of 7 Thomas 5 Spikes, Esqs.