FILED: KINGS COUNTY CLERK 10/17/ :38 PM INDEX NO /2016 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 10/17/2017

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1 Supreme Court of the State of New York County of Kings X MT Queens Property Corp., Index /2016 Plaintiff, - - against - - Affirmation in Opposition Deutsche Bank National Trust Company, as Trustee for Morgan Stanley Capital I Inc. Trust 2006-HE2, Mortgage Pass-Through Certificates, Series HE2, Defendants X STATE OF NEW YORK ) COUNTY OF NEW YORK )SS: Steven Alexander Biolsi, an attorney duly admitted to practice before the Courts of this State, hereby affirms, under penalties of perjury, the following is true: 1. I am the attorney for Plaintiff MT Queens Property Corp herein and I am familiar with the facts and circumstances in this matter. 2. I submit this affirmation in opposition to Defendant s motion seeking, inter alia, to vacate the default judgment and order against it, to grant leave to serve an answer, and then to dismiss for failure to state a cause of action (and, pendente lite, to stay the enforcement of the judgment). 3. As a matter of law, Defendant s motion fails. Defendant Voluntarily Appeared & Consented To Jurisdiction. 4. First, Defendant voluntarily appeared and has consented to jurisdiction of the court. Exhibit A. 5. By statute, a party may appear in an action by attorney (CPLR 321), and such an appearance constitutes an appearance by the party for purposes of conferring jurisdiction. Countrywide Home Loans Servicing, LP v. Albert, 912 N.Y.S.2d 96, 97, 78 A.D.3d 983, 984 (2d Dep t 2010). 1 of 11

2 6. Subject to certain exceptions not applicable here (see CPLR 320[c] ), an appearance of the defendant is equivalent to personal service of the summons upon him, unless an objection to jurisdiction under [CPLR 3211(a)(8) ] is asserted by motion or in the answer as provided in [CPLR 3211] (CPLR 320[b] ). American Home Mortg. Servicing, Inc. v. Arklis, 56 N.Y.S.3d 332, 334, 150 A.D.3d 1180, 1181 (2d Dep t 2017). 7. Accordingly, the defendant waived any claim that the Supreme Court lacked personal jurisdiction over her in this action. Countrywide Home Loans Servicing, LP v. Albert, 912 N.Y.S.2d at 97, 78 A.D.3d at Here: a. Defendant voluntarily appeared (Exhibit A); b. Defendant has not moved pursuant to CPLR 3211(a)(8); c. Defendant s proposed answer (its Exhibit H) does not assert a 3211(a)(8) defense. 9. Defendant cannot challenge jurisdiction. American Home Mortgage. 10. Defendant s application pursuant to CPLR 5015(a)(1) or (a)(4) must be denied. Defendant Failed To Offer Any Affidavit To Rebut The Affirmation Of Service Of Process. 11. Second, there is no affidavit from Defendant to rebut the affirmation of service. 12. Since the defendant failed to adequately dispute the facts alleged in the affidavit of service 1, he was not entitled to vacatur of his default due to lack of 1 Internal citations: (see Wright v. Denard, 111 A.D.3d 1330, 1331, 974 N.Y.S.2d 712; cf. NYCTL Trust & Bank of N.Y. v. Rabinowitz, 7 A.D.3d 459, 460, 777 N.Y.S.2d 483; Frankel v. Schilling, 149 A.D.2d 657, 659, 540 N.Y.S.2d 469) 2 of 11

3 personal jurisdiction. Rabinowitz v. Rabinowitz, 28 N.Y.S.3d 70, 72, 137 A.D.3d 884, (N.Y.A.D. 2 Dept.,2016). 13. The absence of any affidavit from Defendant challenging service of process is insurmountably fatal to Defendant s motion. 14. The general law has not changed: Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits' (U.S. Bank, Natl. Assn. v. Arias, 85 A.D.3d 1014, 1015, 927 N.Y.S.2d 362, quoting Scarano v. Scarano, 63 A.D.3d at 716, 880 N.Y.S.2d 682 [internal quotation marks and citation omitted] ). Thus, an affidavit by the defendant that is conclusory or bare and unsubstantiated is not sufficient to rebut the presumption (see Deutsche Bank Natl. Trust Co. v. Quinones, 114 A.D.3d 719, 719, 981 N.Y.S.2d 107). Rabinowitz v. Rabinowitz, 28 N.Y.S.3d at 72, 137 A.D.3d at The controlling appellate division repeats the law in so many cases: A process server's affidavit of service constitutes prima facie evidence of valid service (see American Home Mtge. Servicing, Inc. v. Gbede, 127 A.D.3d 1004, 1005, 5 N.Y.S.3d 879; Velez v. Forcelli, 125 A.D.3d 643, 644, 3 N.Y.S.3d 84; Edwards, Angell, Palmer & Dodge, LLP v. Gerschman, 116 A.D.3d 824, 825, 984 N.Y.S.2d 392). A mere conclusory denial of service is insufficient to rebut the presumption of proper service arising from the process server's affidavit (see Matter of Romero v. Ramirez, 100 A.D.3d 909, 910, 955 N.Y.S.2d 353; Scarano v. Scarano, 63 A.D.3d 716, 716, 880 N.Y.S.2d 682). In order to warrant a hearing to determine the validity of service of process, the denial of service must be substantiated by specific, detailed facts that contradict the affidavit of service (see e.g. Wachovia Bank, N.A. v. Greenberg, 138 A.D.3d 984, 985, 31 N.Y.S.3d 110; Machovec v. Svoboda, 120 A.D.3d 772, 992 N.Y.S.2d 279; Wells Fargo Bank, N.A. v. Christie, 83 A.D.3d 824, 921 N.Y.S.2d 127). Washington Mut. Bank v. Huggins, 35 N.Y.S.3d 127, 128, 140 A.D.3d 858, 859 (2d Dep t 2016). 3 of 11

4 16. Here, Plaintiff has already submitted an affirmation of service which constitute prima facie evidence of valid service and there is nothing but mere conclusions from lawyers for an agent of Defendant to rebut the service. 17. In fact, there is nothing from Defendant whatsoever. 18. Moreover, your affirmant is the process server who engaged in the nondelegable duty. A copy of the affirmation of service is annexed as Exhibit B. 19. It is without question that your affirmant went to 60 Wall Street, New York, New York and spoke to Diana Hui, who, after inquiry by your affirmant, confirmed, after she examined the summons, complaint and Notice of Electronic Filing documents, that she was authorized to accept service of such papers for Defendant. 20. Ms. Hui accepted the documents for Defendant. 21. Ms. Hui has not rebutted the affirmation of service. 22. No one has rebutted the affirmation of service. 23. Defendant s agent s attorney s conclusory assertions fail to sufficiently rebut your affirmant s affirmation of service. 24. No traverse hearing is warranted. Washington Mut. Bank v. Huggins; Cf, FV-1, Inc. v. Reid, 138 A.D.3d 922, 31 N.Y.S.3d 119 (2d Dep t 2016). 25. Civil Practice Law and Rules (CPLR) 5015 provides, in pertinent part: On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: 1. 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 moving party has entered the judgment or order, within one year after such entry 4 of 11

5 4. lack of jurisdiction to render the judgment or order; 26. CPLR 317, in its entirety, provides: A person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense. If the defense is successful, the court may direct and enforce restitution in the same manner and subject to the same conditions as where a judgment is reversed or modified on appeal. This section does not apply to an action for divorce, annulment or partition. 27. Defendant s motion pursuant to CPLR 5015(a)(4) should be denied because of Defendant s papers are insufficient to rebut the presumption of proper service. U.S. Bank Nat. Ass'n v. Telford, 153 A.D.3d 881 (2d Dep t 2017) 28. Regarding Defendant s CPLR 5015(a)(1) application, Defendant failed to demonstrate a reasonable excuse for its default since the only excuse Defendant proffered was that there was a delay in delivery of process to the current servicer after Diani Hui accepted service of such papers for Defendant. Id. 29. Again, this excuse come from someone other than Defendant and, therefore, is of no moment as it relates to Defendant. 30. Tellingly, Defendant cites to no case law to support these branches of its order to show cause. In fact, Defendant s agent s attorneys offer one single paragraph (at paragraph 30) in its affirmation of support wherein it contains a conclusory excuse of delay. There is nothing from Defendant to support the attorney s statement. 5 of 11

6 31. The absence of a reasonable excuse for the default renders it unnecessary to determine whether [Defendant] demonstrated the existence of a potentially meritorious defense. Id. 32. Defendant s application pursuant to CPLR 5015(a)(1) or a(4) must be denied. 33. With regard to CPLR 317, in this matter, your affirmant directly delivered papers to Ms. Hui who confirmed that she can accept delivery of such papers for Defendant. 34. There is nothing substantive to contradict Ms. Hui s statements. 35. Accordingly, CPLR 317 does not apply. See, e.g., Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., Inc., 67 N.Y.2d 138, 142, 492 N.E.2d 116, 119, 501 N.Y.S.2d 8, 11 (1986) wherein the Secretary of State was served as agent for Defendant. In that case, the Court Of Appeals ruled that CPLR 317 is triggered and applies. Again, here, there is nothing to contradict Ms. Hui s acceptance and delivery of process. 36. Defendant s application pursuant to CPLR 317 must be denied. Plaintiff Stated A Cause Of Action Pursuant to RPAPL In this order to show cause, Defendant also seeks to dismiss pursuant to CPLR 3211(a)(7) CPLR Rules 3211(a)(7) provides that: A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: 7. The pleading fails to state a cause of action 2 In light of the lawful fact that the default order cannot be disturbed through Defendant s CPLR 5015 request, the law of the case is that Plaintiff, in fact, stated a cause of action as admitted by Defendants. 6 of 11

7 39. In the Court s test of a motion to dismiss pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory Leon v. Martinez, 84 N.Y.2d 83, N.E.2d 511, 513, 614, N.Y.S.2d 972, 974 (1994); David v. Hack, 97 A.D.3d 437, 948 N.Y.S.2d 583 (1 st Dep t 2012). 40. Here, as detailed in the complaint (as specifically alleged in paragraph 3 of the Complaint and in footnote 1), Plaintiff s action is brought pursuant to RPAPL 1501(4) (a copy of which is annexed hereto as Exhibit C). 41. Real Property Actions and Proceedings Law (RPAPL) 1501(4) provides: 4. Where the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage, or to enforce a vendor's lien, has expired, any person having an estate or interest in the real property subject to such encumbrance may maintain an action against any other person or persons, known or unknown, including one under disability as hereinafter specified, to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom; provided, however, that no such action shall be maintainable in any case where the mortgagee, holder of the vendor's lien, or the successor of either of them shall be in possession of the affected real property at the time of the commencement of the action. In any action brought under this section it shall be immaterial whether the debt upon which the mortgage or lien was based has, or has not, been paid; and also whether the mortgage in question was, or was not, given to secure a part of the purchase price. 42. CPLR 213 provides, in pertinent part: N.Y. Real Prop. Acts. Law 1501 (McKinney) The following actions must be commenced within six years: 4. an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein 43. As exactly ruled by the controlling Appellate Division: 7 of 11

8 As relevant here, RPAPL 1501(4) authorizes a person having an estate or interest in real property subject to a mortgage to maintain an action against another to secure the cancellation and discharge of record of such encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage has expired, provided, however, that the mortgagee or its successor is not in possession of the affected real property at the time of the commencement of the action (see RPAPL 1501[4] ). An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4] ). The law is well settled that, even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt (EMC Mtge. Corp. v. Patella, 279 A.D.2d 604, 605, 720 N.Y.S.2d 161; see Plaia v. Safonte, 45 A.D.3d 747, 748, 847 N.Y.S.2d 101; Koeppel v. Carlandia Corp., 21 A.D.3d 884, 800 N.Y.S.2d 607; Federal Natl. Mtge. Assn. v. Mebane, 208 A.D.2d 892, 894, 618 N.Y.S.2d 88). Kashipour v. Wilmington Sav. Fund Soc'y, FSB, 144 A.D.3d 985, 41 N.Y.S.3d 738, 739 (2d Dep t 2016) 44. This same court has also ruled regarding the acceleration of debt: by commencing the first foreclosure action, it placed the appellant on notice that it was holding her in default under the note and mortgage and that the debt was being accelerated. EMC Mortg. Corp. v. Smith, 18 A.D.3d 602, 603, 796 N.Y.S.2d 364, 365 (2d Dep t 2005). 45. Here, Defendant does not dispute that a cause of action was stated. Rather, Defendant believes that it may have a defense because of an inadvertent scrivener s error in a date. 46. A scrivener s error is not akin to a failure to state a cause of action. 47. In fact and as a matter of law, Plaintiff precisely alleged a proper cause of action seeking to cancel and discharge the underlying mortgage as allowed by statute. 48. All of the allegations in the complaint, in regard to this CPLR 3211(a)(7) branch of the order to show cause are deemed true and therefore, challenges the merits of cause of action are improper. Leon v. Martinez. 8 of 11

9 49. Defendant s application pursuant to CPLR 3211(a)(7) must be denied. Defendant Failed To Proffer Any Excuse To Justify An Extension Of Time To Plead. 50. CPLR 3020(d) provides: Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default. 51. A defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer as timely must show both a reasonable excuse for the default and the existence of a potentially meritorious defense. Emigrant Bank v. Wiseman, 6 N.Y.S.3d 670, 671, 127 A.D.3d 1013, 1014 (2d Dep t 2015). 52. Since the [Defendant] failled to establish a reasonable excuse for their default, it is not necessary to determine whether they demonstrated a potentially meritorious defense to this action. Id. Defendant s Agent, With Express & Limited Authority, Cannot Revoke Defendant s Previous Acceleration Of Debt. 53. Although a lender may revoke its election to accelerate the mortgage, the dismissal of the prior foreclosure action by the court did not constitute an affirmative act by the lender revoking its election to accelerate, and the record is barren of any affirmative act of revocation occurring during the six-year limitations period subsequent to the initiation of the prior action. Kashipour, 41 N.Y.S.3d at 739, 144 A.D.3d at of 11

10 54. Here, Defendant (again, solely through an agent), provides a limited power of attorney purportedly given to its servicer as part of its desperate attempt to resuscitate its fatal foreclosure claim. 55. Select Portfolio Servicing, Inc. s authority is exactly itemized on page 2 of the Limited Power Of Attorney (a copy of which is annexed hereto as Exhibit D). 56. There is nothing in the Limited Power Of Attorney that permits Select Portfolio Servicing Inc from de-accelerating loans nor does it authorize Select Portfolio Servicing from sending Notices of De-Acceleration. 57. Further yet, Defendant s Business Records indicate a future event not an event that already happened. 58. Clearly, the Business Record Entry that Select Portfolio Servicing relies upon is: 12/31/2015 0:00 A.M. Send RC006 Notice of De-acceleration. See, Defendant s Exhibit G. 59. It does not read: Sent FC006 Notice of De-acceleration. 60. Additionally, Plaintiff is unaware of what time is 0: There is no proof that Select Portfolio Servicing Inc. sent the letter that it was never authorized to send. 62. This defense is without merit and is unsupported by Select Portfolio Servicing Inc s own Business Records. 63. In any event, sending such letter is outside of the scope of Select Portfolio Servicing Inc. s limited authority. 10 of 11

64. Moreover, if Defendant truly believed that it had a meritorious cause of action (rather than a violation of federal debt collection laws), Defendant would have commenced an action (or proposed a

11 64. Moreover, if Defendant truly believed that it had a meritorious cause of action (rather than a violation of federal debt collection laws), Defendant would have commenced an action (or proposed a counterclaim). Defendant has not commenced an action because it its claims are time-barred. 65. There being no basis for the order to show cause and no lawful merit to Defendant s motion, there is no basis for either an injunction or a stay. 66. Accordingly, all stays and injunctions should be vacated. 67. Plaintiff is enduring ongoing prejudice. It has incurred expense and delay solely attributable to Defendant s agent s actions, including opposing this order to show cause. Defendant has not offered any position on prejudice and Defendant has not opposed the fact and the law that its claim is truly time barred after Defendant failed to foreclose on the now-time-barred mortgage. 68. Because of the foregoing, it is respectfully requested that this Court deny Defendant s motion in its entirety. Wherefore, it is respectfully requested that this Court deny Defendant and grant to Plaintiff MT Queens Property Corp such further, other, and different relief that this court deems just, proper, and equitable. Dated: New York, New York October 17, 2017 Biolsi Law Group P.C. Steven Alexander Biolsi Attorney for Plaintiff MT Queens Property Corp 111 Broadway, Suite 606 New York, NY, sabiolsi@sabiolsi.com 11 of 11

Citimortgage, Inc. v Sterling 2015 NY Slip Op 31748(U) September 16, 2015 Supreme Court, Queens County Docket Number: 23653/10 Judge: Allan B.

Citimortgage, Inc. v Sterling 2015 NY Slip Op 31748(U) September 16, 2015 Supreme Court, Queens County Docket Number: 23653/10 Judge: Allan B. Weiss Cases posted with a "30000" identifier, i.e., 2013 NY