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FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/10/2023
EXHIBIT S
FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/10/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
a
JPMORGAN CHASE BANK, NATIONAL Index No.: 506027/2014
ASSOCIATION, SUCCESSOR IN INTEREST BY |
PURCHASE FROM THE FEDERAL DEPOSIT |
INSURANCE CORPORATION AS RECEIVER OF |
WASHINGTON MUTUAL BANK F/K/A
|
AFFIRMATION IN OPPOSITION
WASHINGTON MUTUAL BANK, FA,
a TO DEFENDANT'S ORDER TO
SUCCESSOR IN INTEREST TO NORTH | SHOW CAUSE FOR A STAY
AMERICAN MORTGAGE COMPANY,
Plaintiff,
- vs-
PETER K. MCKENZIE; SHERREL
FARNSWORTH A/K/A SHERREL A.
FARNSWORTH; JP MORGAN CHASE BANK,
N.A.; RAB PERFORMANCE RECOVERIES,
LLC; AMERICAN EXPRESS BANK FSB; |
CAPITAL ONE BANK; CITY OF NEW YORK |
TRANSIT ADJUDICATION BUREAU; NEW |
YORK CITY ENVIRONMENTAL CONTROL
BOARD; NYC DEPARTMENT OF FINANCE- |
PARKING VIOLATIONS BUREAU; WILLIAM |
DOE; AND DANIELLE MOORE,
Defendants.
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 Ibrahim & 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/lda
Sherrel A. Farnsworth's ("Farnsworth") Order to Show Cause ("OTSC") to stay the instant
foreclosure action and to stay the auction of the subject property that was scheduled for October
31, 2019.
3. This Court entered default against Farnsworth more than three and a half years
ago, and denied her previous order to show cause to vacate her default more than a year ago.
Nonetheless, Farnsworth has now filed the instant, second OTSC-this time to seek a stay of the
instant foreclosure action and auction of the subject property that was scheduled for October 31,
2019, pursuant to CPLR 2201.
4. Chase respectfully submits that this Court should deny Farnsworth's OTSC, and
should permit Chase to proceed with enforcement of the Judgment of Foreclosure and Sale and
schedule an auction.
5. First, Farnsworth's OTSC is barred by this Court's entry of judgment of
foreclosure and sale.
6. Second, Farnsworth's OTSC is barred by the fact that this Court entered default
against Farnsworth for failure to respond to Chase's complaint.
7. Third, Farnsworth has not otherwise met the burden under CPLR 2201, and fails
"only"
to demonstrate entitlement to injunctive relief. As Farnsworth admits, the purpose of the
premises,"
OTSC is to "facilitate the ability to complete the sale of the subject with an expected
date of 60 days - December 2019. As of the date of the of this
closing i.e., 27, filing opposition,
however, the sale of the subject property has still not been completed, nor is there any indication
that completion of the sale is imminent. In the meantime, Chase continues to be prejudiced by
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being precluded from enforcing this Court's judgment of foreclosure and sale, and from
scheduling an auction for a property involving a loan that is more than eleven years in default.
BACKGROUND
Loan Level Information
8. On May 29, 2001, Farnsworth executed a Note (the "Note") in the amount of
$318,750.00, as attorney-in-fact for defendant Peter McKenzie ("McKenzie"), to North
American Mortgage Company ("North American"). The Note is endorsed in blank without
recourse by North American. (See Affidavit 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, ¶¶ 4-5 & Ex. B (NYSCEF Does. No. 59-65).)
9. 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") for real property located at 240 Greene Avenue, Brooklyn, New York 11238 (the
"Subject Property"). (See id., ¶ 4 & Ex. A.) Collectively, the Note and Mortgage shall be
"Loan."
referred to as the
10. 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.)
11. On September 25, 2008, JPMorgan Chase Bank, National Association acquired
the Loan pursuant to a Purchase and Assumption Agreement ("P&A Agreement") between
Chase and the Federal Deposit Insurance Corporation ("FDIC"), acting as receiver for
Washington Mutual Bank, FA. (See id., ¶ 7 & Ex. E.)
12. 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
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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
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 Ex. H filed
June 12, 2018 reproduced herein, (NYSCEF Doc. 159).)
13. McKenzie has been in default on the Note since July 1, 2008. (See Affidavit of
Merit, ¶ 9.)
Chase's Foreclosure Complaint, Farnsworth's Default in Responding to the Complaint,
and This Court's Entry of Judgment of Foreclosure and Sale
14. On or about July 1, 2014, Chase filed the instant foreclosure Complaint against
Farnsworth, McKenzie, and other individuals and corporate defendants in the Supreme Court of
the State of New York, County of Kings (the "Foreclosure Action"). A true and correct copy of
the Pleadings is attached hereto as Exhibit A.
15. 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.
16. On or about July 28, 2014, McKenzie filed an Answer with affirmative defenses
and counterclaims ("Answer"). A true and correct copy of the Answer is attached hereto as
Exhibit C.
17. Farnsworth did not file a responsive pleading or otherwise appear in the
Foreclosure Action.
18. On or about March 22, 2016, Chase filed a Notice of Motion for 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.
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19. Due to non-appearance of the parties, Chase's First Motion for Default was
marked off.
20. On or about April 21, 2016, Chase filed a second Notice of Motion for 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.
21. By Order dated June 17, 2016, this Court granted Chase's Second Motion for
Default as to all non-answering individuals and corporate defendants, including Farnsworth (the
"Default Order"). A true and correct copy of the Default Order is attached hereto as Exhibit F.
22. 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.
23. On or about January 30, 2017, Chase and McKenzie entered into a Stipulation and
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.
24. On or about June 12, 2017, Chase filed a Notice of Motion for Judgment of
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.
25. By Order dated March 28, 2018, this Court granted Chase's Motion for Judgment
of Foreclosure and Sale. A true and correct copy of the Judgment of Foreclosure and Sale is
attached hereto as Exhibit J.
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26. On or about May 15, 2018, Chase filed a Notice of Entry of the Judgment of
Foreclosure and Sale by which all individuals 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 First OTSC
27. On or about June 12, 2018, Farnsworth filed the 2018 OTSC, seeking to vacate
her default and stay enforcement of the Judgement of Foreclosure and Sale. A true and correct
copy of Farnsworth's 2018 OTSC is attached hereto as Exhibit L.
28. On or about July 17, 2018, Chase filed an opposition to the 2018 OTSC. A true
and correct copy of Chase's opposition is attached hereto as Exhibit M.
29. On or about August 7, 2018, Farnsworth filed a Reply Affirmation. A true and
correct copy of the Reply Affirmation is attached hereto as Exhibit N.
30. By Order dated October 18, 2018, this Court denied Farnsworth's 2018 OTSC for
failure to meet the burden of the relief requested. A true and correct copy of the Order is
attached hereto as Exhibit O.
31. On or about November 12, 2018, Chase filed a Notice of Entry of the Denial
Order by which both Farnsworth and Peter McKenzie, were served notice of the Denial Order.
A true and correct copy of the Notice of Entry of the Denial Order, including the Affirmation of
Service on Farnsworth is attached hereto as Exhibit P.
32. An auction of the Subject Property was subsequently set for October 31, 2019.
Farnsworth's Second, Instant OTSC
33. On or about October 29, 2019, Farnsworth filed the instant, second OTSC
pursuant to CPLR 2201, seeking to stay the foreclosure action and to stay the auction of the
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Subject Property that was scheduled for October 31, 2019. A true and correct copy of
Farnsworth's OTSC is attached hereto as Exhibit Q.
34. As set forth in the OTSC, in 2015 Farnsworth commenced a partition action in
this Court against McKenzie and other defendants (Index No. 3346/2015), and was settled by
stipulation dated July 11, 2019. In that stipulation, McKenzie agreed to accept $120,000.00 for
any and all interest in the Subject Property, and "McKenzie agreed to allow Farnsworth to sell
the subject premises to ensure that ... mortgage is satisfied and that McKenzie's settlement is
agreement."
paid per the (Aff. Of Kevin Spikes, dated Oct. 28, 2019, ¶ 4 (NYSCEF Doc. No.
186).)
35. Farnsworth and her counsel claim that Farnsworth has secured a purchaser of the
premises for the amount of $1,242,000.00, and is expected to close on the sale within 60 days of
the of the instant OTSC - December 2019. (Id. at ¶ 7.)
filing i.e., 27,
"only"
36. According to the OTSC, the reason the OTSC is necessary is to "facilitate
the ability to complete the sale of the subject premises which will afford the defendant
Farnsworth the ability to pay off the mortgage and satisfy the debt pursuant to the agreement
McKenzie,"
owed to the defendant and that the bank would not be prejudiced. (Id. at ¶¶ 11-12.)
37. On October 30, 2019, this Court entered Farnsworth's OTSC, which among other
things stayed Chase's ability to enforce the order and judgment of foreclosure and sale. This
Court set an appearance date for the OTSC for December 19, 2019 at 9:30 a.m.
38. Chase respectfully submits that this Court should deny Farnsworth's OTSC, and
allow Chase to proceed with the enforcement of the Judgment of Foreclosure and Sale, and the
auction of the Subject Property.
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LEGAL ARGUMENT
I. FARNSWORTH'S INSTANT, SECOND OTSC IS BARRED BY THIS
COURT'S JUDGMENT OF FORECLOSURE AND SALE
39. As a threshold matter, Farnsworth's instant OTSC is barred by this Court's entry
of judgment of foreclosure and sale.
40. As the Second Department has recognized, "[a] judgment of foreclosure and sale
is final as to all questions at issue between the parties, and concludes all matters of defense
action."
which were or might have been litigated in the foreclosure (Tromba v E. Fed. Sav.
Bank, FSB, 148 AD3d 753, 754 [2d Dept 2017] (citations and quotations omitted).)
41. In this case, by Order dated March 28, 2018, this Court granted Chase's Motion
for Judgment of Foreclosure and Sale. (See Exhibit J.)
42. As set forth in the Judgment of Foreclosure and Sale, "each and all of the
defendants in this action and all persons claiming under any of them, after the filing of such
Notice of Pendency of this action, be and they hereby are, forever barred and foreclosed of all
right, claim, lien, title, interest and equity of redemption in their said mortgaged premises and
thereof."
each and every part (Id.)
43. Because this Court has entered judgment of foreclosure and sale, Farnsworth is
precluded from further challenges to the foreclosure - the instant OTSC.
raising any including
44. For example, in Countrywide Home Loans, Inc. v Septimus, 31 Misc 3d 1238[A]
[Sup Ct, Queens County June 6, 2011], the court denied defendant's motion to stay a foreclosure
sale pursuant to CPLR 2201. Defendant's motion raised "various defenses to the foreclosure
sale."
action as a basis for a stay of the foreclosure (Id. at 3.) The court, however, found that the
defendant "may not be heard as to these defenses because the judgment of foreclosure and sale
judgment."
was obtained against her upon default, and she does not seek to vacate the (Id.)
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II. FARNSWORTH'S INSTANT, SECOND OTSC IS BARRED BY THIS
COURT'S JUNE 2016 ENTRY OF DEFAULT AGAINST FARNSWORTH
45. As set forth above, by Order dated June 17, 2016, this Court granted Chase's
Second Motion for Default as to all non-answering individuals and corporate defendants,
including Farnsworth (the "Default Order"). (See Exhibit F.)
46. In Farnsworth's first OTSC filed in March 2018, Farnsworth did request that this
Court vacate her default. This Court, however, declined her request. (See Exhibits L, O.)
47. Because Farnsworth has been in default in this action for more than three and a
half years, the Court should deny her second, instant OTSC for this additional reason. Simply
put, Farnsworth should not be permitted to assert a non-jurisdictional argument in a case in
which she is in default. (See, e.g., Settembrini v Settembrini, 270 AD2d 408, 704 NYS2d 641,
643 [2d Dept 2000] ("A party against whom a judgment is entered on default must first move to
default."
vacate his (citations omitted).); Money Source, Inc. v Dell'Aquila, 60 Misc 3d 1232[A],
2018 NY Slip Op 51290[U] at *8 [Sup Ct, Suffolk County 2018] ("It appears that defendant is
unaware that he must first vacate his default in answering before he can address any substantive,
non-jurisdictional, claims, as a party may not move for affirmative relief of a non-jurisdictional
nature without first moving to vacate his/her default .... Absent a vacatur of his default, a
defendant is without to oppose or otherwise seek affirmative relief of a non-
authority
nature."
jurisdictional (citations omitted).))
III. FARNSWORTH FAILS TO MEET THE STANDARD FOR A STAY UNDER
CPLR 2201
48. For the reasons set forth above, Farnsworth's OTSC is precluded by both the
judgment of foreclosure and sale, and by her own default in responding to Chase's
Preview
FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/10/2023 EXHIBIT S FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/10/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS a JPMORGAN CHASE BANK, NATIONAL Index No.: 506027/2014 ASSOCIATION, SUCCESSOR IN INTEREST BY | PURCHASE FROM THE FEDERAL DEPOSIT | INSURANCE CORPORATION AS RECEIVER OF | WASHINGTON MUTUAL BANK F/K/A | AFFIRMATION IN OPPOSITION WASHINGTON MUTUAL BANK, FA, a TO DEFENDANT'S ORDER TO SUCCESSOR IN INTEREST TO NORTH | SHOW CAUSE FOR A STAY AMERICAN MORTGAGE COMPANY, Plaintiff, - vs- PETER K. MCKENZIE; SHERREL FARNSWORTH A/K/A SHERREL A. FARNSWORTH; JP MORGAN CHASE BANK, N.A.; RAB PERFORMANCE RECOVERIES, LLC; AMERICAN EXPRESS BANK FSB; | CAPITAL ONE BANK; CITY OF NEW YORK | TRANSIT ADJUDICATION BUREAU; NEW | YORK CITY ENVIRONMENTAL CONTROL BOARD; NYC DEPARTMENT OF FINANCE- | PARKING VIOLATIONS BUREAU; WILLIAM | DOE; AND DANIELLE MOORE, Defendants. 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 Ibrahim & 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 FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/10/2023 2. I submit this affirmation in opposition to defendant Sherrel Farnsworth a/lda Sherrel A. Farnsworth's ("Farnsworth") Order to Show Cause ("OTSC") to stay the instant foreclosure action and to stay the auction of the subject property that was scheduled for October 31, 2019. 3. This Court entered default against Farnsworth more than three and a half years ago, and denied her previous order to show cause to vacate her default more than a year ago. Nonetheless, Farnsworth has now filed the instant, second OTSC-this time to seek a stay of the instant foreclosure action and auction of the subject property that was scheduled for October 31, 2019, pursuant to CPLR 2201. 4. Chase respectfully submits that this Court should deny Farnsworth's OTSC, and should permit Chase to proceed with enforcement of the Judgment of Foreclosure and Sale and schedule an auction. 5. First, Farnsworth's OTSC is barred by this Court's entry of judgment of foreclosure and sale. 6. Second, Farnsworth's OTSC is barred by the fact that this Court entered default against Farnsworth for failure to respond to Chase's complaint. 7. Third, Farnsworth has not otherwise met the burden under CPLR 2201, and fails "only" to demonstrate entitlement to injunctive relief. As Farnsworth admits, the purpose of the premises," OTSC is to "facilitate the ability to complete the sale of the subject with an expected date of 60 days - December 2019. As of the date of the of this closing i.e., 27, filing opposition, however, the sale of the subject property has still not been completed, nor is there any indication that completion of the sale is imminent. In the meantime, Chase continues to be prejudiced by 2 FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/10/2023 being precluded from enforcing this Court's judgment of foreclosure and sale, and from scheduling an auction for a property involving a loan that is more than eleven years in default. BACKGROUND Loan Level Information 8. On May 29, 2001, Farnsworth executed a Note (the "Note") in the amount of $318,750.00, as attorney-in-fact for defendant Peter McKenzie ("McKenzie"), to North American Mortgage Company ("North American"). The Note is endorsed in blank without recourse by North American. (See Affidavit 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, ¶¶ 4-5 & Ex. B (NYSCEF Does. No. 59-65).) 9. 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") for real property located at 240 Greene Avenue, Brooklyn, New York 11238 (the "Subject Property"). (See id., ¶ 4 & Ex. A.) Collectively, the Note and Mortgage shall be "Loan." referred to as the 10. 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.) 11. On September 25, 2008, JPMorgan Chase Bank, National Association acquired the Loan pursuant to a Purchase and Assumption Agreement ("P&A Agreement") between Chase and the Federal Deposit Insurance Corporation ("FDIC"), acting as receiver for Washington Mutual Bank, FA. (See id., ¶ 7 & Ex. E.) 12. 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 3 FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/10/2023 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 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 Ex. H filed June 12, 2018 reproduced herein, (NYSCEF Doc. 159).) 13. McKenzie has been in default on the Note since July 1, 2008. (See Affidavit of Merit, ¶ 9.) Chase's Foreclosure Complaint, Farnsworth's Default in Responding to the Complaint, and This Court's Entry of Judgment of Foreclosure and Sale 14. On or about July 1, 2014, Chase filed the instant foreclosure Complaint against Farnsworth, McKenzie, and other individuals and corporate defendants in the Supreme Court of the State of New York, County of Kings (the "Foreclosure Action"). A true and correct copy of the Pleadings is attached hereto as Exhibit A. 15. 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. 16. On or about July 28, 2014, McKenzie filed an Answer with affirmative defenses and counterclaims ("Answer"). A true and correct copy of the Answer is attached hereto as Exhibit C. 17. Farnsworth did not file a responsive pleading or otherwise appear in the Foreclosure Action. 18. On or about March 22, 2016, Chase filed a Notice of Motion for 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. 4 FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/10/2023 19. Due to non-appearance of the parties, Chase's First Motion for Default was marked off. 20. On or about April 21, 2016, Chase filed a second Notice of Motion for 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. 21. By Order dated June 17, 2016, this Court granted Chase's Second Motion for Default as to all non-answering individuals and corporate defendants, including Farnsworth (the "Default Order"). A true and correct copy of the Default Order is attached hereto as Exhibit F. 22. 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. 23. On or about January 30, 2017, Chase and McKenzie entered into a Stipulation and 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. 24. On or about June 12, 2017, Chase filed a Notice of Motion for Judgment of 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. 25. By Order dated March 28, 2018, this Court granted Chase's Motion for Judgment of Foreclosure and Sale. A true and correct copy of the Judgment of Foreclosure and Sale is attached hereto as Exhibit J. 5 FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/10/2023 26. On or about May 15, 2018, Chase filed a Notice of Entry of the Judgment of Foreclosure and Sale by which all individuals 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 First OTSC 27. On or about June 12, 2018, Farnsworth filed the 2018 OTSC, seeking to vacate her default and stay enforcement of the Judgement of Foreclosure and Sale. A true and correct copy of Farnsworth's 2018 OTSC is attached hereto as Exhibit L. 28. On or about July 17, 2018, Chase filed an opposition to the 2018 OTSC. A true and correct copy of Chase's opposition is attached hereto as Exhibit M. 29. On or about August 7, 2018, Farnsworth filed a Reply Affirmation. A true and correct copy of the Reply Affirmation is attached hereto as Exhibit N. 30. By Order dated October 18, 2018, this Court denied Farnsworth's 2018 OTSC for failure to meet the burden of the relief requested. A true and correct copy of the Order is attached hereto as Exhibit O. 31. On or about November 12, 2018, Chase filed a Notice of Entry of the Denial Order by which both Farnsworth and Peter McKenzie, were served notice of the Denial Order. A true and correct copy of the Notice of Entry of the Denial Order, including the Affirmation of Service on Farnsworth is attached hereto as Exhibit P. 32. An auction of the Subject Property was subsequently set for October 31, 2019. Farnsworth's Second, Instant OTSC 33. On or about October 29, 2019, Farnsworth filed the instant, second OTSC pursuant to CPLR 2201, seeking to stay the foreclosure action and to stay the auction of the 6 FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/10/2023 Subject Property that was scheduled for October 31, 2019. A true and correct copy of Farnsworth's OTSC is attached hereto as Exhibit Q. 34. As set forth in the OTSC, in 2015 Farnsworth commenced a partition action in this Court against McKenzie and other defendants (Index No. 3346/2015), and was settled by stipulation dated July 11, 2019. In that stipulation, McKenzie agreed to accept $120,000.00 for any and all interest in the Subject Property, and "McKenzie agreed to allow Farnsworth to sell the subject premises to ensure that ... mortgage is satisfied and that McKenzie's settlement is agreement." paid per the (Aff. Of Kevin Spikes, dated Oct. 28, 2019, ¶ 4 (NYSCEF Doc. No. 186).) 35. Farnsworth and her counsel claim that Farnsworth has secured a purchaser of the premises for the amount of $1,242,000.00, and is expected to close on the sale within 60 days of the of the instant OTSC - December 2019. (Id. at ¶ 7.) filing i.e., 27, "only" 36. According to the OTSC, the reason the OTSC is necessary is to "facilitate the ability to complete the sale of the subject premises which will afford the defendant Farnsworth the ability to pay off the mortgage and satisfy the debt pursuant to the agreement McKenzie," owed to the defendant and that the bank would not be prejudiced. (Id. at ¶¶ 11-12.) 37. On October 30, 2019, this Court entered Farnsworth's OTSC, which among other things stayed Chase's ability to enforce the order and judgment of foreclosure and sale. This Court set an appearance date for the OTSC for December 19, 2019 at 9:30 a.m. 38. Chase respectfully submits that this Court should deny Farnsworth's OTSC, and allow Chase to proceed with the enforcement of the Judgment of Foreclosure and Sale, and the auction of the Subject Property. 7 FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/10/2023 LEGAL ARGUMENT I. FARNSWORTH'S INSTANT, SECOND OTSC IS BARRED BY THIS COURT'S JUDGMENT OF FORECLOSURE AND SALE 39. As a threshold matter, Farnsworth's instant OTSC is barred by this Court's entry of judgment of foreclosure and sale. 40. As the Second Department has recognized, "[a] judgment of foreclosure and sale is final as to all questions at issue between the parties, and concludes all matters of defense action." which were or might have been litigated in the foreclosure (Tromba v E. Fed. Sav. Bank, FSB, 148 AD3d 753, 754 [2d Dept 2017] (citations and quotations omitted).) 41. In this case, by Order dated March 28, 2018, this Court granted Chase's Motion for Judgment of Foreclosure and Sale. (See Exhibit J.) 42. As set forth in the Judgment of Foreclosure and Sale, "each and all of the defendants in this action and all persons claiming under any of them, after the filing of such Notice of Pendency of this action, be and they hereby are, forever barred and foreclosed of all right, claim, lien, title, interest and equity of redemption in their said mortgaged premises and thereof." each and every part (Id.) 43. Because this Court has entered judgment of foreclosure and sale, Farnsworth is precluded from further challenges to the foreclosure - the instant OTSC. raising any including 44. For example, in Countrywide Home Loans, Inc. v Septimus, 31 Misc 3d 1238[A] [Sup Ct, Queens County June 6, 2011], the court denied defendant's motion to stay a foreclosure sale pursuant to CPLR 2201. Defendant's motion raised "various defenses to the foreclosure sale." action as a basis for a stay of the foreclosure (Id. at 3.) The court, however, found that the defendant "may not be heard as to these defenses because the judgment of foreclosure and sale judgment." was obtained against her upon default, and she does not seek to vacate the (Id.) 8 FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/10/2023 II. FARNSWORTH'S INSTANT, SECOND OTSC IS BARRED BY THIS COURT'S JUNE 2016 ENTRY OF DEFAULT AGAINST FARNSWORTH 45. As set forth above, by Order dated June 17, 2016, this Court granted Chase's Second Motion for Default as to all non-answering individuals and corporate defendants, including Farnsworth (the "Default Order"). (See Exhibit F.) 46. In Farnsworth's first OTSC filed in March 2018, Farnsworth did request that this Court vacate her default. This Court, however, declined her request. (See Exhibits L, O.) 47. Because Farnsworth has been in default in this action for more than three and a half years, the Court should deny her second, instant OTSC for this additional reason. Simply put, Farnsworth should not be permitted to assert a non-jurisdictional argument in a case in which she is in default. (See, e.g., Settembrini v Settembrini, 270 AD2d 408, 704 NYS2d 641, 643 [2d Dept 2000] ("A party against whom a judgment is entered on default must first move to default." vacate his (citations omitted).); Money Source, Inc. v Dell'Aquila, 60 Misc 3d 1232[A], 2018 NY Slip Op 51290[U] at *8 [Sup Ct, Suffolk County 2018] ("It appears that defendant is unaware that he must first vacate his default in answering before he can address any substantive, non-jurisdictional, claims, as a party may not move for affirmative relief of a non-jurisdictional nature without first moving to vacate his/her default .... Absent a vacatur of his default, a defendant is without to oppose or otherwise seek affirmative relief of a non- authority nature." jurisdictional (citations omitted).)) III. FARNSWORTH FAILS TO MEET THE STANDARD FOR A STAY UNDER CPLR 2201 48. For the reasons set forth above, Farnsworth's OTSC is precluded by both the judgment of foreclosure and sale, and by her own default in responding to Chase's