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FILED: KINGS COUNTY CLERK 09/06/2022 05:25 PM INDEX NO. 22215/2008
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/06/2022
EXHIBIT
B
FILED: KINGS COUNTY CLERK 09/06/2022 05:25 PM INDEX NO. 22215/2008
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/06/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
INDEX NO. 22215/2008
RETAINED REALTY, INC.
Plaintiff,
vs.
WILLIAM BUBB, THOMAS STEVENS, CAROLYN
STEVENS, BRIAN STEVENS, KELLY STEVENS,
AND CHRISTOPHER STEVENS,
Defendants.
PERKINS'
BRIAN MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT
WILLIAM BUBB'S MOTION TO, AMONG OTHER THINGS, VACATE DEFAULT
JUDGMENT AND REFEREE SALE AND IN SUPPORT OF CROSS-MOTION TO
INTERVENE
RIKER DANZIG SCHERER HYLAND &
PERRETTI LLP
Headquarters Plaza
One Speedwell Avenue
Morristown, NJ 07962-1981
(973) 538-0800
and
49th
500 Fifth Avenue, FlOOr
New York, New York 10110
(212) 302-6574
Attorneys for Intervening Nominal Plaintiff,
Brian Perkins
Of Counsel and on the Brief:
Michael R. O'Donnell, Esq.
On the Brief:
Jorge A. Sanchez, Esq.
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TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1
STATEMENT OF THE FACTS .................................................................................................... 2
LEGAL ARGUMENT.................................................................................................................... 4
I. PERKINS MUST BE PERMITTED TO INTERVENE .........................................4
IL DEFENDANT WAS PROPERLY SERVED..........................................................5
III. EVEN IF SERVICE WAS FLAWED, DEFENDANT RECEIVED
MULTIPLE ADDITIONAL NOTICES AND FAILED TO APPEAR IN
THIS ACTION.........................................................................................................8
IV. DEFENDANT IS BARRED FROM SEEKING RELIEF BECAUSE HE
IS GUILTY OF LACHES .....................................................................................10
V. DEFENDANT IS EQUITABLY ESTOPPED FROM ATTEMPTING
TO DIVEST MR. PERKINS OF HIS TITLE TO THE PROPERTY...................13
VI. MR. PERKINS IS A BONA FIDE PURCHASER OF THE PROPERTY
AND CANNOT BE STRIPPED OF HIS LAWFUL, INNOCENT
PURCHASE...........................................................................................................15
VII. IN THE ALTERNATIVE, MR. PERKINS IS ENTITLED TO AN
EQUITABLE MORTGAGE ON THE PROPERTY, AS DEFENDANT
WOULD BE UNJUSTLY ENRICHED OTHERWISE........................................17
CONCLUSION............................................................................................................................. 18
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TABLE OF AUTHORITIES
Cases
Charnin v Cogan
250 A.D.2d 513, 517 (1st Dept. 1998)........................................................................................ 8
ACT Prop., LLC, v. Ana Garcia
102 A.D.3d 712, 713 (2d Dept. 2013)........................................................................................ 6
Amsterdam Sav. Bank v. City View Mat. Corp.
45 N.Y.2d 854, 855 (1978)....................................................................................................... 11
Bank of New York v. Espejo
92 A.D.3d 707, 708 (2d Dept. 2012)...................................................................................... 6, 7
Bankers Federal Sav. and Loan AssI v. House
182 A.D.2d 603, 603 (2d Dept. 1992)...................................................................................... 16
Bradkin v. Leverton
26 N.Y.2d 192, 197 (1970)....................................................................................................... 20
Briggs v. Langford
7 N.Y.S. 358 (5th Dept., Gen. Term. 1889)....................................................................... 14
City of New York v VJHC Dev. Corp.
125 A.D.3d 425, 425 (1st Dept. 2015)........................................................................................ 8
County Asphalt, Inc. v. North Rockland Underground Corp.
(2nd
96 A.D.2d 570, 570 Dept. 1983)........................................................................................ 10
Emerson Hills Realty, Inc. v. Mirabella
220 A.D.2d 717, 717 (2d Dept. 1995)...................................................................................... 15
E. Shopping Centers, Inc. v. Trenholm Motels, Inc.
306 N.Y.S.2d 354, 357 (3d Dept. 1970)................................................................................... 16
Fleming-Jackson v Fleming
41 A.D.3d 175, 176 (1st Dept. 2007)...................................................................15
First Union Nat. Bank v. Tecklenburg
2 A.D.3d 575, 577 (2d Dept. 2003).......................................................................................... 16
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Gen. Stencils, Inc. v. Chiappa
18 N.Y.2d 125, 127 (1966)....................................................................................................... 15
Genesee Conservation Found., Inc. v. Oatka Fish & Game Club, Inc.,
405 N.Y.S.2d 869, 870 (4th Dept. 1978).................................................................................. 21
Hammerman v. Ferguson
50 A.D.2d 853, 853 (2d Dept. 1975)........................................................................................ 15
Hall v. Fisher
1849 WL 5268 (Sup. Ct. 1849)................................................................................................. 17
Henmor Funding Corp. v. Rodriguez
17 Misc. 2d 378, 379 (Sup. Ct. 1958)........................................................................... 12, 13, 15
Household Fin. Realty Corp. of NY v. Brown
13 A.D.3d 340, 340 (2d Dept. 2004).......................................................................................... 5
Jean v. Joseph
117 A.D.3d 989 (2d Dept. 2014)....................................................................... 12, 13, 15, 16
JP Morgan Chase Bank, Nat. AssI v. Kalpakis
91 A.D.3d 722, 723 (2d Dept. 2012).......................................................................................... 4
Levinson v. Myers
100 Misc. 379, 384 (Sup. Ct. 1917).......................................................................................... 17
Long Island Savings Bank of Centereach, FSB v. Valiquette
183 A.D.2d 877, 877 (2d Dept. 1992)...................................................................................... 16
Melton v Brotman Foot Care Group
198 A.D.2d 481........................................................................................................................... 8
Mendez v. Kyung Yoo
23 A.D.354, 355-56 (2d Dept. 2005).......................................................................................... 9
Morris v Adams
82 AD3d 946, 946 (2d Dept. 2011).................................................................................... 15, 16
Myers v. Key Bank, N.A.
113 A.D.2d 244, 245 (3rd Dept. 1985)............................................................................... 14
Nationstar Mortgage, LLC v. Kamil
155 A.D.3d 966, 967 (2d Dep't 2013)........................................................................................ 9
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Revona Realty Corp. v. Wasserman
4 A.D.2d 444, 448 (3d Dept. 1957).......................................................................................... 13
See Deutsche Bank National Trust Co. v. Pietranico
102 A.D.3d 724, 725 (2d Dept. 2013).................................................................................. 5, 10
Singh v Ahamad
154 A.D.3d 683, 684 (2d Dept. 2017)...................................................................................... 20
Slud v. Guild Properties
6 Misc.2d 188, 198 (Sup. Ct. 1952) aff'd........................................................................... 16, 18
Stein v. Doukas
98 A.D.3d 1026 (2nd Dept. 2012)................................................................................. 15, 16
Stevens v. Charles
102 A.D.3d 763, 764 (2d Dept. 2013)............................................................................ 6, 10, 11
Thomas v. Evans
105 N.Y. 601, 615 (1887)......................................................................................................... 21
U.S. Bank, NA v. Tate
102 A.D.3d 859, 859 (2d Dept. 2013)........................................................................................ 6
US Bank Nat. AssI v. Gestetner
74 A.D.3d 1538, 1541 (3d Dept. 2010)...................................................................................... 4
Wells Fargo Bank, NA v. McGloster
48 A.D.3d 457, 457 (2d Dept. 2008).......................................................................................... 5
Wilds v. Heckstall
93 A.D.3d 661, 663-64 (2nd Dept. 2012)........................................................................... 14
Statutes
CPLR § 308............................................................................................................................ passim
CPLR § 3211................................................................................................................................... 1
CPLR § 5015(a)(4) ..................................................................................................................... 8, 9
CPLR 3215...................................................................................................................................... 8
Real Property Law § 266.............................................................................................................. 15
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PRELIMINARY STATEMENT
Brian Perkins ("Perkins") files this memorandum of law to intervene and oppose Defendant
("Bubb"
William Bubb's or "Defendant") Order to Show Cause (or, the "Motion") seeking an
order dismissing this action for lack of personal jurisdiction pursuant to CPLR § 308(2) and CPLR
§ 3211(a)(8), as well as vacating the default judgment, order of reference and judgment of
foreclosure and sale against him, as well as related relief, including vacating subsequent transfers
of the subject property. Perkins, the current owner of the property, is an innocent bona fide
purchaser for value who should not be divested of his title. Defendant's Motion is meritless and
untimely.
First, Defendant was properly served, substituted service having been served on multiple
individuals at his residence, and having been mailed a copy of the summons and complaint within
twenty days of that service. Following this proper service, Defendant had multiple opportunities
to oppose the foreclosure action, but failed to bring this motion until more than five years after the
Referee Sale occurred. Thus, Bubb's request to vacate of the default judgment, along with the
other relief sought, should not be granted for that reason alone.
Second, Defendant's Motion here is beyond untimely and highly prejudicial to Perkins,
having been filed more than ten years after final judgment was entered, and, even more shockingly,
multiple years (and subsequent transfers) after the initial Referee Sale to Plaintiff Retained Realty,
Inc. ("Plaintiff"). Given this unreasonable delay, and because Defendant has had ample time to
respond or otherwise appear in this matter, Defendant is guilty of laches and should be barred from
asserting his claims here. If laches does not bar Defendant from seeking this relief, equitable
estoppel does. In the time since the original referee sale, the Property has been improved to the
tune of hundreds of thousands of dollars, and Perkins has effectively paid for those improvements
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as reflected in the sale price of the property. Defendant is therefore estopped from bringing his
Motion now.
Lastly, even were certain relief to be granted to Defendant, such as the rescission of the
Referee Sale, Mr. Perkins is an innocent bona fide purchaser for value of the Property who should
not be divested of his title. Perkins was not the original purchaser of the Property at the Referee
Sale, and Defendant has proffered no facts showing that Perkins took aware of any fraud on behalf
of his grantor, nor that he should have been aware of any title issues at the time of his purchase.
Therefore, there is no legal basis for this Court to vacate the transfer of the property to him.
For these reasons, as more detailed below, Perkins requests that this Court deny
Defendant's Motion.
STATEMENT OF THE FACTS
This is a foreclosure action concerning a mortgage given by Defendant to Emigrant
Mortgage Company, Inc. ("Emigrant") encumbering the property located at 56 Florence Avenue,
Brooklyn, New York (the "Property"). (See Mortgage [Affirmation in Support of Defendant's
Order to Show Cause ("Defendant's Aff.") at Ex. B]). The mortgage was given to secure a loan
of $206,000.00 given from Emigrant to Defendant. (See Note [Defendant's Aff. at Ex. C]).
Defendant defaulted on the mortgage loan on April 1, 2008. (See_Summons and Complaint at ¶l
[Defendant's Aff. at Ex. F]). As a result of his default, this foreclosure action was commenced by
Plaintiff's filing of the Summons and Complaint on January 31, 2008. (See id.)
On August 21, 2008, a process server served the summons and verified complaint on
Bubb/Relative"
"Josephine at the Property, and swore in an affidavit of service to that effect. (See
J. Bubb. Affidavit of Service [Defendant's Aff. at Ex. G]). On that same day, a different process
server served the summons and verified complaint at the Property on "Thomas Stevens", "Carolyn
Stevens", "Brian Stevens", "Kelly Stevens", and "Christopher Steven[s]", and swore in separate
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affidavits of service to that effect. (h Stevens Affidavit of Service [Defendant's Aff. at Ex. H]).
Nineteen days later, on September 9, 2008, the summons and complaint were mailed by Kenneth
Rung to the Property, who swore in an affidavit to that effect. (See Defendant's Aff. at ¶ 52, Aff.
of Kenneth Rung, [Defendant's Aff. at Ex. L]).
Plaintiff moved for a Default Judgment and Order of Reference, and, on December 7, 2009,
the same was granted against Defendant. (_SSeeOrder of Reference [Ex. 1 to O'Donnell Aff.]). On
June 16, 2009, Defendant was mailed a consent to change attorney for Plaintiff. (h Consent to
Change Attorney [Ex. 2 to O'Donnell Aff.]). On June 11, 2010, Defendant was mailed a notice
of entry of the Order of Reference. (h Notice of Entry [Ex. 3 to O'Donnell Aff.]). On this date,
he was also mailed a copy of Proposed Judgment and Legal Description. (h June 11 Aff. of
Service [Ex. 4 to O'Donnell Aff.]).
Plaintiff later moved for a Judgment of Foreclosure and Sale, and, on May 7, 2014, the
Judgment was granted. (See Judgment of Foreclosure and Sale [Ex. 5 to O'Donnell Aff.]). At this
time, an order was also entered substituting Retained Reality, Inc, as Plaintiff in this matter. (See
id.) On March 3, 2015, the Notice of Sale was filed and an affidavit of service filed as to the same.
(See Notice of Sale [Ex. 6 to O'Donnell Aff.]). On March 26, 2015, a Referee Sale was held and
the Property was sold to Plaintiff for $100. (See Memo of Sale [Ex. 7 to O'Donnell Aff.]).
On July 7, 2015, the Referee conveyed the Property to Plaintiff. (h Referee's Deed
[Defendant's Aff. at Ex. J]). Then, on July 15, 2015 Venetian Homes NY, Ltd. purchased the
Property from Plaintiff for $127,500. (h 7/20/15 [Ex. 8 to O'Donnell Aff.]). At this time, the
Property was in a state of disrepair stemming from hurricane damage. (h Real Estate Appraisal
Report at p. 3 [Ex. 3 to Perkins Aff.]). Brian Perkins and Antoinette Vinci ("Vinci") purchased
the property from Venetian on December 23, 2015 for $405,000. (See 12/23/15 Deed, [Ex. 1 to
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Perkins Aff.]). By this time, the property had been completely renovated. (See Real Estate
Appraisal Report at p. 3, [Ex. 3 to Perkins Aff.]; Affidavit of Brian Perkins at 17). In connection
with Perkins and Vinci's purchase of the Property, they borrowed $391,483 from Franklin First
Financial, Ltd. to fund the same and gave it a mortgage encumbering the Property (the "Franklin
Mortgage"). (See Mortgage [Ex. 2 to Perkins Aff.]; Affidavit of Brian Perkins at ¶5). Perkins
then purchased Vinci's interest in the Property for $74,781 on February 28, 2018. (S_e_e 2/28/18
Deed, [Ex. 4 to Perkins Aff.]; Affidavit of Brian Perkins at ¶9). Perkins partially funded this
purchase with a $67,197.17 mortgage from Wells Fargo Bank, N.A., which was consolidated with
the Franklin Mortgage to constitute a single lien of $444,000.00 (See Gap Mortgage [Ex. 5];
Consolidated Mortgage, [Ex. 6]; Affidavit of Brian Perkins at ¶¶ 11, 14). Mr. Perkins has resided
at the Property since December 23, 2015. (See Affidavit of Brian Perkins at $3).
On or about February 18, 2021, over ten years after the Default Judgment against him,
Defendant brings this Motion to, among other things, divest Mr. Perkins of title to the Property.
LEGAL ARGUMENT
L PERKINS MUST BE PERMITTED TO INTERVENE
As the current owner of the Property, Perkins should be entitled to intervene in this matter
to oppose the Motion. Indeed, intervention as of right is warranted as Perkins has "an ownership
proceeding"
interest in the property that is the subject of [this] foreclosure and will potentially "be
affected adversely by the judgment in this action involving title to property". See JP Morgan
Chase Bank, Nat. AssI v. Kalpakis, 91 A.D.3d 722, 723 (2d Dept. 2012); US Bank Nat. AssI v.
Gestetner, 74 A.D.3d 1538, 1541 (3d Dept. 2010). To the extent necessary, Perkins cross-moves
to intervene in this matter pursuant to CPLR § 1012.
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IL DEFENDANT WAS PROPERLY SERVED
Under CPLR § 308(2), personal service may be made "by delivering the summons within
the state to a person of suitable age and discretion at the actual place of business, dwelling place,
served"
or usual place of abode of the person to be and then either "mailing the summons to the
residence"
person to be served at his or her last known or effectuating a mailing to the person's
actual place of business. "Such delivery and mailing is to be effected within twenty days of each
other; [and] proof of such service shall be filed with the clerk of the court designated in the
mailing."
summons within twenty days of either such delivery or CPLR § 308(2). A process
server's sworn affidavit constitutes prima facie evidence of proper service and serves to shift the
burden to the contesting party to contradict the allegations in the affidavits of service. See
Deutsche Bank National Trust Co. v. Pietranico, 102 A.D.3d 724, 725 (2d Dept. 2013) (the bare
denial submitted by defendant was not enough to "rebut the presumption of proper service
established by the duly executed affidavit of service of the Defendant's process server"); Wells
Fargo Bank, NA v. McGloster, 48 A.D.3d 457, 457 (2d Dept. 2008) ("The affidavit of the process
server constituted prima facie evidence of proper service pursuant to CPLR 308(2)"); Household
Fin. Realty Corp. of NY v. Brown, 13 A.D.3d 340, 340 (2d Dept. 2004) ("However, the defendants
failed to rebut the prima facie evidence of proper service created by the affidavit of the Defendant's
process server"). Defendants can only rebut the process server's affidavit by a sworn denial of
service in an affidavit containing specific and detailed contradictions of the allegations in the
process server's affidavits, and bare, conclusory, and unsubstantial denials of receipt of process
are insufficient to rebut the presumption of proper service. S_ee ACT Prop., LLC, v. Ana Garcia,
102 A.D.3d 712, 713 (2d Dept. 2013) (the defendant's "conclusory and unsubstantiated denial of
service lacked the factual specificity and detail required to rebut the prima facie proof of proper
service set forth in the process server's affidavits of service"); Bank of New York v. Espejo, 92
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Preview
FILED: KINGS COUNTY CLERK 09/06/2022 05:25 PM INDEX NO. 22215/2008 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/06/2022 EXHIBIT B FILED: KINGS COUNTY CLERK 09/06/2022 05:25 PM INDEX NO. 22215/2008 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/06/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS INDEX NO. 22215/2008 RETAINED REALTY, INC. Plaintiff, vs. WILLIAM BUBB, THOMAS STEVENS, CAROLYN STEVENS, BRIAN STEVENS, KELLY STEVENS, AND CHRISTOPHER STEVENS, Defendants. PERKINS' BRIAN MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT WILLIAM BUBB'S MOTION TO, AMONG OTHER THINGS, VACATE DEFAULT JUDGMENT AND REFEREE SALE AND IN SUPPORT OF CROSS-MOTION TO INTERVENE RIKER DANZIG SCHERER HYLAND & PERRETTI LLP Headquarters Plaza One Speedwell Avenue Morristown, NJ 07962-1981 (973) 538-0800 and 49th 500 Fifth Avenue, FlOOr New York, New York 10110 (212) 302-6574 Attorneys for Intervening Nominal Plaintiff, Brian Perkins Of Counsel and on the Brief: Michael R. O'Donnell, Esq. On the Brief: Jorge A. Sanchez, Esq. FILED: KINGS COUNTY CLERK 09/06/2022 05:25 PM INDEX NO. 22215/2008 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/06/2022 TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................................................... 1 STATEMENT OF THE FACTS .................................................................................................... 2 LEGAL ARGUMENT.................................................................................................................... 4 I. PERKINS MUST BE PERMITTED TO INTERVENE .........................................4 IL DEFENDANT WAS PROPERLY SERVED..........................................................5 III. EVEN IF SERVICE WAS FLAWED, DEFENDANT RECEIVED MULTIPLE ADDITIONAL NOTICES AND FAILED TO APPEAR IN THIS ACTION.........................................................................................................8 IV. DEFENDANT IS BARRED FROM SEEKING RELIEF BECAUSE HE IS GUILTY OF LACHES .....................................................................................10 V. DEFENDANT IS EQUITABLY ESTOPPED FROM ATTEMPTING TO DIVEST MR. PERKINS OF HIS TITLE TO THE PROPERTY...................13 VI. MR. PERKINS IS A BONA FIDE PURCHASER OF THE PROPERTY AND CANNOT BE STRIPPED OF HIS LAWFUL, INNOCENT PURCHASE...........................................................................................................15 VII. IN THE ALTERNATIVE, MR. PERKINS IS ENTITLED TO AN EQUITABLE MORTGAGE ON THE PROPERTY, AS DEFENDANT WOULD BE UNJUSTLY ENRICHED OTHERWISE........................................17 CONCLUSION............................................................................................................................. 18 i FILED: KINGS COUNTY CLERK 09/06/2022 05:25 PM INDEX NO. 22215/2008 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/06/2022 TABLE OF AUTHORITIES Cases Charnin v Cogan 250 A.D.2d 513, 517 (1st Dept. 1998)........................................................................................ 8 ACT Prop., LLC, v. Ana Garcia 102 A.D.3d 712, 713 (2d Dept. 2013)........................................................................................ 6 Amsterdam Sav. Bank v. City View Mat. Corp. 45 N.Y.2d 854, 855 (1978)....................................................................................................... 11 Bank of New York v. Espejo 92 A.D.3d 707, 708 (2d Dept. 2012)...................................................................................... 6, 7 Bankers Federal Sav. and Loan AssI v. House 182 A.D.2d 603, 603 (2d Dept. 1992)...................................................................................... 16 Bradkin v. Leverton 26 N.Y.2d 192, 197 (1970)....................................................................................................... 20 Briggs v. Langford 7 N.Y.S. 358 (5th Dept., Gen. Term. 1889)....................................................................... 14 City of New York v VJHC Dev. Corp. 125 A.D.3d 425, 425 (1st Dept. 2015)........................................................................................ 8 County Asphalt, Inc. v. North Rockland Underground Corp. (2nd 96 A.D.2d 570, 570 Dept. 1983)........................................................................................ 10 Emerson Hills Realty, Inc. v. Mirabella 220 A.D.2d 717, 717 (2d Dept. 1995)...................................................................................... 15 E. Shopping Centers, Inc. v. Trenholm Motels, Inc. 306 N.Y.S.2d 354, 357 (3d Dept. 1970)................................................................................... 16 Fleming-Jackson v Fleming 41 A.D.3d 175, 176 (1st Dept. 2007)...................................................................15 First Union Nat. Bank v. Tecklenburg 2 A.D.3d 575, 577 (2d Dept. 2003).......................................................................................... 16 ii FILED: KINGS COUNTY CLERK 09/06/2022 05:25 PM INDEX NO. 22215/2008 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/06/2022 Gen. Stencils, Inc. v. Chiappa 18 N.Y.2d 125, 127 (1966)....................................................................................................... 15 Genesee Conservation Found., Inc. v. Oatka Fish & Game Club, Inc., 405 N.Y.S.2d 869, 870 (4th Dept. 1978).................................................................................. 21 Hammerman v. Ferguson 50 A.D.2d 853, 853 (2d Dept. 1975)........................................................................................ 15 Hall v. Fisher 1849 WL 5268 (Sup. Ct. 1849)................................................................................................. 17 Henmor Funding Corp. v. Rodriguez 17 Misc. 2d 378, 379 (Sup. Ct. 1958)........................................................................... 12, 13, 15 Household Fin. Realty Corp. of NY v. Brown 13 A.D.3d 340, 340 (2d Dept. 2004).......................................................................................... 5 Jean v. Joseph 117 A.D.3d 989 (2d Dept. 2014)....................................................................... 12, 13, 15, 16 JP Morgan Chase Bank, Nat. AssI v. Kalpakis 91 A.D.3d 722, 723 (2d Dept. 2012).......................................................................................... 4 Levinson v. Myers 100 Misc. 379, 384 (Sup. Ct. 1917).......................................................................................... 17 Long Island Savings Bank of Centereach, FSB v. Valiquette 183 A.D.2d 877, 877 (2d Dept. 1992)...................................................................................... 16 Melton v Brotman Foot Care Group 198 A.D.2d 481........................................................................................................................... 8 Mendez v. Kyung Yoo 23 A.D.354, 355-56 (2d Dept. 2005).......................................................................................... 9 Morris v Adams 82 AD3d 946, 946 (2d Dept. 2011).................................................................................... 15, 16 Myers v. Key Bank, N.A. 113 A.D.2d 244, 245 (3rd Dept. 1985)............................................................................... 14 Nationstar Mortgage, LLC v. Kamil 155 A.D.3d 966, 967 (2d Dep't 2013)........................................................................................ 9 iii FILED: KINGS COUNTY CLERK 09/06/2022 05:25 PM INDEX NO. 22215/2008 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/06/2022 Revona Realty Corp. v. Wasserman 4 A.D.2d 444, 448 (3d Dept. 1957).......................................................................................... 13 See Deutsche Bank National Trust Co. v. Pietranico 102 A.D.3d 724, 725 (2d Dept. 2013).................................................................................. 5, 10 Singh v Ahamad 154 A.D.3d 683, 684 (2d Dept. 2017)...................................................................................... 20 Slud v. Guild Properties 6 Misc.2d 188, 198 (Sup. Ct. 1952) aff'd........................................................................... 16, 18 Stein v. Doukas 98 A.D.3d 1026 (2nd Dept. 2012)................................................................................. 15, 16 Stevens v. Charles 102 A.D.3d 763, 764 (2d Dept. 2013)............................................................................ 6, 10, 11 Thomas v. Evans 105 N.Y. 601, 615 (1887)......................................................................................................... 21 U.S. Bank, NA v. Tate 102 A.D.3d 859, 859 (2d Dept. 2013)........................................................................................ 6 US Bank Nat. AssI v. Gestetner 74 A.D.3d 1538, 1541 (3d Dept. 2010)...................................................................................... 4 Wells Fargo Bank, NA v. McGloster 48 A.D.3d 457, 457 (2d Dept. 2008).......................................................................................... 5 Wilds v. Heckstall 93 A.D.3d 661, 663-64 (2nd Dept. 2012)........................................................................... 14 Statutes CPLR § 308............................................................................................................................ passim CPLR § 3211................................................................................................................................... 1 CPLR § 5015(a)(4) ..................................................................................................................... 8, 9 CPLR 3215...................................................................................................................................... 8 Real Property Law § 266.............................................................................................................. 15 iv FILED: KINGS COUNTY CLERK 09/06/2022 05:25 PM INDEX NO. 22215/2008 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/06/2022 PRELIMINARY STATEMENT Brian Perkins ("Perkins") files this memorandum of law to intervene and oppose Defendant ("Bubb" William Bubb's or "Defendant") Order to Show Cause (or, the "Motion") seeking an order dismissing this action for lack of personal jurisdiction pursuant to CPLR § 308(2) and CPLR § 3211(a)(8), as well as vacating the default judgment, order of reference and judgment of foreclosure and sale against him, as well as related relief, including vacating subsequent transfers of the subject property. Perkins, the current owner of the property, is an innocent bona fide purchaser for value who should not be divested of his title. Defendant's Motion is meritless and untimely. First, Defendant was properly served, substituted service having been served on multiple individuals at his residence, and having been mailed a copy of the summons and complaint within twenty days of that service. Following this proper service, Defendant had multiple opportunities to oppose the foreclosure action, but failed to bring this motion until more than five years after the Referee Sale occurred. Thus, Bubb's request to vacate of the default judgment, along with the other relief sought, should not be granted for that reason alone. Second, Defendant's Motion here is beyond untimely and highly prejudicial to Perkins, having been filed more than ten years after final judgment was entered, and, even more shockingly, multiple years (and subsequent transfers) after the initial Referee Sale to Plaintiff Retained Realty, Inc. ("Plaintiff"). Given this unreasonable delay, and because Defendant has had ample time to respond or otherwise appear in this matter, Defendant is guilty of laches and should be barred from asserting his claims here. If laches does not bar Defendant from seeking this relief, equitable estoppel does. In the time since the original referee sale, the Property has been improved to the tune of hundreds of thousands of dollars, and Perkins has effectively paid for those improvements 1 FILED: KINGS COUNTY CLERK 09/06/2022 05:25 PM INDEX NO. 22215/2008 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/06/2022 as reflected in the sale price of the property. Defendant is therefore estopped from bringing his Motion now. Lastly, even were certain relief to be granted to Defendant, such as the rescission of the Referee Sale, Mr. Perkins is an innocent bona fide purchaser for value of the Property who should not be divested of his title. Perkins was not the original purchaser of the Property at the Referee Sale, and Defendant has proffered no facts showing that Perkins took aware of any fraud on behalf of his grantor, nor that he should have been aware of any title issues at the time of his purchase. Therefore, there is no legal basis for this Court to vacate the transfer of the property to him. For these reasons, as more detailed below, Perkins requests that this Court deny Defendant's Motion. STATEMENT OF THE FACTS This is a foreclosure action concerning a mortgage given by Defendant to Emigrant Mortgage Company, Inc. ("Emigrant") encumbering the property located at 56 Florence Avenue, Brooklyn, New York (the "Property"). (See Mortgage [Affirmation in Support of Defendant's Order to Show Cause ("Defendant's Aff.") at Ex. B]). The mortgage was given to secure a loan of $206,000.00 given from Emigrant to Defendant. (See Note [Defendant's Aff. at Ex. C]). Defendant defaulted on the mortgage loan on April 1, 2008. (See_Summons and Complaint at ¶l [Defendant's Aff. at Ex. F]). As a result of his default, this foreclosure action was commenced by Plaintiff's filing of the Summons and Complaint on January 31, 2008. (See id.) On August 21, 2008, a process server served the summons and verified complaint on Bubb/Relative" "Josephine at the Property, and swore in an affidavit of service to that effect. (See J. Bubb. Affidavit of Service [Defendant's Aff. at Ex. G]). On that same day, a different process server served the summons and verified complaint at the Property on "Thomas Stevens", "Carolyn Stevens", "Brian Stevens", "Kelly Stevens", and "Christopher Steven[s]", and swore in separate 2 FILED: KINGS COUNTY CLERK 09/06/2022 05:25 PM INDEX NO. 22215/2008 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/06/2022 affidavits of service to that effect. (h Stevens Affidavit of Service [Defendant's Aff. at Ex. H]). Nineteen days later, on September 9, 2008, the summons and complaint were mailed by Kenneth Rung to the Property, who swore in an affidavit to that effect. (See Defendant's Aff. at ¶ 52, Aff. of Kenneth Rung, [Defendant's Aff. at Ex. L]). Plaintiff moved for a Default Judgment and Order of Reference, and, on December 7, 2009, the same was granted against Defendant. (_SSeeOrder of Reference [Ex. 1 to O'Donnell Aff.]). On June 16, 2009, Defendant was mailed a consent to change attorney for Plaintiff. (h Consent to Change Attorney [Ex. 2 to O'Donnell Aff.]). On June 11, 2010, Defendant was mailed a notice of entry of the Order of Reference. (h Notice of Entry [Ex. 3 to O'Donnell Aff.]). On this date, he was also mailed a copy of Proposed Judgment and Legal Description. (h June 11 Aff. of Service [Ex. 4 to O'Donnell Aff.]). Plaintiff later moved for a Judgment of Foreclosure and Sale, and, on May 7, 2014, the Judgment was granted. (See Judgment of Foreclosure and Sale [Ex. 5 to O'Donnell Aff.]). At this time, an order was also entered substituting Retained Reality, Inc, as Plaintiff in this matter. (See id.) On March 3, 2015, the Notice of Sale was filed and an affidavit of service filed as to the same. (See Notice of Sale [Ex. 6 to O'Donnell Aff.]). On March 26, 2015, a Referee Sale was held and the Property was sold to Plaintiff for $100. (See Memo of Sale [Ex. 7 to O'Donnell Aff.]). On July 7, 2015, the Referee conveyed the Property to Plaintiff. (h Referee's Deed [Defendant's Aff. at Ex. J]). Then, on July 15, 2015 Venetian Homes NY, Ltd. purchased the Property from Plaintiff for $127,500. (h 7/20/15 [Ex. 8 to O'Donnell Aff.]). At this time, the Property was in a state of disrepair stemming from hurricane damage. (h Real Estate Appraisal Report at p. 3 [Ex. 3 to Perkins Aff.]). Brian Perkins and Antoinette Vinci ("Vinci") purchased the property from Venetian on December 23, 2015 for $405,000. (See 12/23/15 Deed, [Ex. 1 to 3 FILED: KINGS COUNTY CLERK 09/06/2022 05:25 PM INDEX NO. 22215/2008 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/06/2022 Perkins Aff.]). By this time, the property had been completely renovated. (See Real Estate Appraisal Report at p. 3, [Ex. 3 to Perkins Aff.]; Affidavit of Brian Perkins at 17). In connection with Perkins and Vinci's purchase of the Property, they borrowed $391,483 from Franklin First Financial, Ltd. to fund the same and gave it a mortgage encumbering the Property (the "Franklin Mortgage"). (See Mortgage [Ex. 2 to Perkins Aff.]; Affidavit of Brian Perkins at ¶5). Perkins then purchased Vinci's interest in the Property for $74,781 on February 28, 2018. (S_e_e 2/28/18 Deed, [Ex. 4 to Perkins Aff.]; Affidavit of Brian Perkins at ¶9). Perkins partially funded this purchase with a $67,197.17 mortgage from Wells Fargo Bank, N.A., which was consolidated with the Franklin Mortgage to constitute a single lien of $444,000.00 (See Gap Mortgage [Ex. 5]; Consolidated Mortgage, [Ex. 6]; Affidavit of Brian Perkins at ¶¶ 11, 14). Mr. Perkins has resided at the Property since December 23, 2015. (See Affidavit of Brian Perkins at $3). On or about February 18, 2021, over ten years after the Default Judgment against him, Defendant brings this Motion to, among other things, divest Mr. Perkins of title to the Property. LEGAL ARGUMENT L PERKINS MUST BE PERMITTED TO INTERVENE As the current owner of the Property, Perkins should be entitled to intervene in this matter to oppose the Motion. Indeed, intervention as of right is warranted as Perkins has "an ownership proceeding" interest in the property that is the subject of [this] foreclosure and will potentially "be affected adversely by the judgment in this action involving title to property". See JP Morgan Chase Bank, Nat. AssI v. Kalpakis, 91 A.D.3d 722, 723 (2d Dept. 2012); US Bank Nat. AssI v. Gestetner, 74 A.D.3d 1538, 1541 (3d Dept. 2010). To the extent necessary, Perkins cross-moves to intervene in this matter pursuant to CPLR § 1012. 4 FILED: KINGS COUNTY CLERK 09/06/2022 05:25 PM INDEX NO. 22215/2008 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/06/2022 IL DEFENDANT WAS PROPERLY SERVED Under CPLR § 308(2), personal service may be made "by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place, served" or usual place of abode of the person to be and then either "mailing the summons to the residence" person to be served at his or her last known or effectuating a mailing to the person's actual place of business. "Such delivery and mailing is to be effected within twenty days of each other; [and] proof of such service shall be filed with the clerk of the court designated in the mailing." summons within twenty days of either such delivery or CPLR § 308(2). A process server's sworn affidavit constitutes prima facie evidence of proper service and serves to shift the burden to the contesting party to contradict the allegations in the affidavits of service. See Deutsche Bank National Trust Co. v. Pietranico, 102 A.D.3d 724, 725 (2d Dept. 2013) (the bare denial submitted by defendant was not enough to "rebut the presumption of proper service established by the duly executed affidavit of service of the Defendant's process server"); Wells Fargo Bank, NA v. McGloster, 48 A.D.3d 457, 457 (2d Dept. 2008) ("The affidavit of the process server constituted prima facie evidence of proper service pursuant to CPLR 308(2)"); Household Fin. Realty Corp. of NY v. Brown, 13 A.D.3d 340, 340 (2d Dept. 2004) ("However, the defendants failed to rebut the prima facie evidence of proper service created by the affidavit of the Defendant's process server"). Defendants can only rebut the process server's affidavit by a sworn denial of service in an affidavit containing specific and detailed contradictions of the allegations in the process server's affidavits, and bare, conclusory, and unsubstantial denials of receipt of process are insufficient to rebut the presumption of proper service. S_ee ACT Prop., LLC, v. Ana Garcia, 102 A.D.3d 712, 713 (2d Dept. 2013) (the defendant's "conclusory and unsubstantiated denial of service lacked the factual specificity and detail required to rebut the prima facie proof of proper service set forth in the process server's affidavits of service"); Bank of New York v. Espejo, 92 5 FILED: KINGS COUNTY CLERK 09/06/2022 05:25 PM INDEX NO. 22215/2008 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/06/2022