Motion to set aside

LAURA M. RYS, ESQ.NJ Bar ID# 01238199349 Route 202Post Office Box 608Far Hills, New Jersey 07931(908) 328-2761 Office(908) 375-8106 Facsimile

[email protected]

Attorney for the Defendants, Jane & Al Vitolo

U.S. NATIONAL ASSOCIATION AS TRUSTEE FOR CSMC MORTGAGE LOAN TRUST 2006-7, Plaintiff,

vs.

JANE VITOLO and AL VITOLO, Defendants.SUPERIOR COURT OF NEW JERSEY SUSSEX COUNTYCHANCERY DIVISIONGENERAL EQUITY

Case No. F-039732-13

NOTICE OF MOTION ANDMOTION TO VACATE ENTRY OF DEFAULT AND PERMIT ANSWER TO BE FILED OUT OF TIME

To:

Kristina G. MurthaMichael J. CoskeyKivitz McKeever Lee, PC701 Market street, Suite 5000Philadelphia, PA 19106

(Attorneys for Plaintiff)

PLEASE TAKE NOTICE that attorney, Laura Rys, for named defendants will move before the aforementioned Superior Court of New Jersey, on Friday, March 21, 2014 at 9:00 a.m. or as soon thereafter as counsel may be heard, for an Order vacating entry of default entered December 16, 2013, pursuant to Rule 4:43-3 and to permit answer to be filed out of time.PLEASE TAKE FURTHER NOTICE that defendant will rely upon the Certification of Attorney Laura Rys, and the Memorandum of Points and Authority in Support of said motion. PLEASE TAKE FURTHER NOTICE that unless opposing papers are filed with the Court and served upon plaintiffs counsel at least eight (8) days before the return date of this motion in accordance with Rule 1:6-3, the relief requested may be granted.PLEASE TAKE FURTHER NOTICE that if Plaintiffs file an objection to this motion oral argument is requested. A proposed form of Order is attached.

DATE: February 25, 2014

Respectfully submitted,

___________________________________Laura Rys, attorney for Defendants

CERTIFICATION IN SUPPORT OF MOTIONI , Laura Rys, am an attorney at law of the State of New Jersey. I represent the defendants, Jane Vitolo and Alvaro Vitolo [hereinafter Vitolos], and am fully aware of the facts and circumstances of this Motion:1. The Summons and Complaint for Foreclosure were served on Vitolos by County Sheriffs Office on November 04, 2013.2. Inasmuch as Vitolos were financially burdened Jane Vitolo attempted to make numerous calls to Felicia Mendoza, case-manager for Loan Modification, at Bank of America to ascertain the status of their Loan Modification and ask why they were being foreclosed upon after a promise to stay foreclosure pending application for loan modification.3. More than a week later, when Jane Vitolo finally got in contact with Felicia Mendoza, said case-manager informed Jane that Nationstar would be processing the Loan Modification and they would be in contact shortly. 4. The only communication received by Vitolos from Nationstar was a bill for money owed.5. On or about November 25, 2013, concerned about the deadline established by the terms of the Summons , Vitolos borrowed money and retained present counsel to defend against the instant complaint in foreclosure.6. Vitolos counsel immediately procured a copy of chain of title to Vitolos residence which revealed that Plaintiffs counsel was intentionally misleading this Court with a false chain of title.7. Vitolos counsel attempted to investigate the whereabouts of named Plaintiff and was unable to find the named Plaintiff registered to conduct business in New Jersey; nor registered as named with the Security and Exchange Commission; nor registered in New York or Texas to conduct business.8. On or about December 03, 2013, Vitolos counsel called plaintiffs counsel of record, Michael J. Coskey, and informed said counsel that Vitolos counsel had just been retained by the Vitolos and requested a stipulation to an enlargement of time to file an answer.9. Michael J. Coskey advised Vitolos counsel that he was unable to make such a stipulation without the consent of his supervisor, Kristina G, Murtha, and she was unavailable .10. On or about December 05 , 2013, Vitolos counsel called plaintiffs head counsel, Kristina G. Murtha [Murtha], and informed said counsel that Vitolos counsel had just been retained by the Vitolos and requested a stipulation to an enlargement of time to file an answer.11. Murtha claimed that she may give an extension if a workout was involved and said she would call back tomorrow. 12. On or about December 06, 2013, Vitolos counsel again called Murtha to find out if there was a voluntary stipulation to extend the time for answering, however, Murtha was unavailable.13. On or about December 09, 2013, Vitolos counsel contacted Murtha who ask why Vitolos counsel needed a two week extension. Vitolos counsel responded that after obtaining a copy of title to the Vitolos property there are extremely complex issues to be addressed. Murtha responded that she would not stipulate to an extension of time.14. On or about December 16, 2013, unbeknownst to Vitolos counsel Murtha requested entry of default without notice to Vitolos counsel.15. Vitolos counsel made a diligent effort to expeditiously prepare a dispositve motion to dismiss the instant complaint. 16. On or about December 20, 2013, Vitolos counsel, unaware of entry of default, filed a Motion to Dismiss [MTD] the instant complaint.17. On or about December 30, 2013, Jane Vitolo received a letter dated December 23, 2013, from Plaintiffs counsel with copies of the Request to Enter Default and Certification. 18. On or about February 18, 2013, Vitolos counsel received the Courts Order denying MTD for default entry.I certify that the foregoing statements are true and correct to the best of my knowledge, information and belief. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.


___________________________Laura Rys, attorney for Vitolos


[email protected]



vs.


Case No. F-039732-13

MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF MOTION TO VACATE ENTRY OF DEFAULT AND PERMIT ANSWER TO BE FILED OUT OF TIME

Vitolos hereby incorporates by reference herein the attached Certification and the facts contained therein and sets forth the following:GROUNDS TO VACATE ENTRY OF DEFAULTEXCUSABLE NEGLECT:Present counsel attempted to invoke professional courtesy from the Plaintiffs counsel by requesting a stipulation for an enlargement of time to file an answer to the instant complaint. Inasmuch as due diligence uncovered fraudulent pleading in the complaint for foreclosure present counsel determined that more time was necessary to prepare an answer. Said request was made prior to the deadline for a responsive pleading. Plaintiffs counsel was dilatory in responding to present counsel and then ultimately refusing to stipulate to an extension on the due date. Plaintiffs counsel gave no notice of the intent to request entry of default to present counsel. Belated service[footnoteRef:1] of copies of the Request for Entry of Default upon Vitolos, in lieu of Counsel representing Vitolos, was strategic and effectively prevented filing of any written opposition to the request for entry of default. [1: Almost two weeks after entry of default.]

The standard applicable to a motion to vacate default is set forth in Rule 4:43-3. A mere showing of good cause is required for setting aside an entry of default. N.J. Mfrs. Ins. Co. v. Prestige Health Grp., LLC, 406 N.J. Super. 354, @ 360 (App. Div.), certif. denied, 199 N.J. 543 (2009). Vitolos counsel was unaware of Plaintiffs counsel requesting entry of default. Said counsel knew that Vitolos counsel was preparing an answer and that approximately two weeks was needed to complete the answer. Present counsel was nave for not immediately moving the court for an enlargement of time under the circumstances. Carelessness may be excusable when attributable to an honest mistake that is compatible with due diligence or reasonable prudence. Mancini v. EDS, 132 N.J. 330, @335 , 625 A.2d 484 (1993).An application to vacate a default judgment is viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached. Marder v. Realty Construction Co., 84 N.J. Super. 313, @ 319 (App. Div. 1964), affd 43 N.J. 508 (1964). To set aside a default judgment, the defendant must demonstrate that its failure to answer or otherwise appear and defend was due to excusable neglect under the circumstances and that it has a meritorious defense either to the cause of action itself or the quantum of damages assessed. Id. MERITORIOUS DEFENSESLACK OF STANDING:Standing refers to the plaintiff's ability or entitlement to maintain an action before the court." N.J. Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, @409 (App. Div.), certif. granted, 152 N.J. 13 (1997), appeal dismissed as moot, 152 N.J. 361 (1998). [] "A lack of standing by a plaintiff precludes a court from entertaining any of the substantive issues presented for determination." In re Adoption of Baby T., 160 N.J. 332, @340 (1999). See also Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398, 424 (1991). NO REGISTRATION OF FICTITIOUS ENTITY:Plaintiff is an alleged fictitious entity that is not registered to do business in the State of New Jersey. Said entity is not registered with the Security and Exchange Commission; nor with the State of New York; nor with the State of Texas which Plaintiff claims to be its residence. Foreign organizations that conduct business in New Jersey must file a certificate of authority with the state or their foreclosures actions will be dismissed. This point was recently demonstrated in SPCP Group, LLC v. F II, LLC, A-5916-10T2, 2012 WL 2377820 (N.J. Super. Ct. App. Div. June 26, 2012), where the appellate division affirmed the dismissal of the plaintiffs foreclosure complaint against defendants on parcels of real property. In that case, the trial court concluded, among other things, that SPCP, the out-of-state plaintiff, lacked standing to commence the foreclosure action in New Jersey because it had not filed a certificate of doing business in the state under the Business Corporation Act. The trial court acknowledged that in order to conduct business in New Jersey, a foreign corporation must file a certificate of authority from the New Jersey Secretary of State, including a certification the entity is in good standing in the jurisdiction of its incorporation. See N.J.S.A. 14A:13-4. The failure to obtain such a certificate precludes a foreign business from commencing any action or proceeding in any New Jersey courtincluding foreclosure actionsunder N.J.S.A. 14A:13:11.

FRAUD:Prior to the filing of an action for foreclosure on a mortgage, [], the plaintiff shall receive and review a title search of the public record for the purpose of identifying any lienholder or other persons and entities with interests in the property that is subject to foreclosure and shall annex to the complaint a certification of compliance with the title search requirements of this rule. Rule 4:64-1(a)(1). [Emphasis added.]The Appellate Courts further defined the requirements of the Certification to be attached to the complaint for foreclosure and held: [A] complaint must be accompanied by an appropriate certification, executed by one with personal knowledge of the circumstances, confirming that plaintiff is in possession of the original note as of the date any new action is filed. That certification must indicate the physical location of the note and the name of the individual or entity in possession. Bank of New York v. Raftogianis 209 N.J. 449, 38 A.3d 570 (2012)

The omission of a proper certification in the instant case was no act of negligence. It would seem obvious to a reasonable fact-finder that Plaintiffs counsel was well aware of the lack of proper assignment after reviewing the Assignments of Mortgage on record. So much so that said counsel submitted for recording a third Assignment of Mortgage to the Plaintiff. However, said assignment failed to mention transfer of the Note with the assignment. It is most likely for this reason Plaintiff omitted this pertinent fact from their complaint. Plaintiffs counsel has falsely represented a crucial material fact to this Court in the Complaint to give the appearance as the real party in interest with standing to foreclose. The chain of Assignments cited in the Complaint sub judice is deliberately falsified and then Certified by Plaintiffs counsel and an unknown party at some law firm [New Jersey law mandates specificity of the name of person verifying documents]. There is no valid assignment from BAC to U.S. Bank contrary to certified pleadings in the Complaint at paragraph 2, subsection b. See Exhibit A: A true and correct copy of Assignment of Mortgage recorded February 15, 2013. Plaintiff is attempting a fraudulent conversion.

VOID ASSIGNMENTS OF MORTGAGE:Even if one would turn a blind eye to the fact the Plaintiff is not a lawful fictitious entity, there is no valid Assignment of the Mortgage as mandated by law.One: First Assignment is alleged to be made by Countrywide three years after Countrywide merged with Red Oak Merger Corporation [Sub of Bank of America] and ceased to exist. Under the Banking Act of 1948, N.J.S.A. 17:9A1 to 467, when two or more banks merge, the corporate existence of each merging bank shall be merged into that of the receiving bank, and the property and rights of each merging bank shall thereupon vest in the receiving bank without further act or deed[.] N.J.S.A. 17:9A139. Countrywide no longer held any beneficiary interests to assign in 2011.Two: Even if Countrywide had beneficiary interests in 2011 they were allegedly assigned to BAC by the first undated assignment of mortgage recorded on August 29, 2011; whereby the second Assignment of Mortgage from Countrywide to U.S. Bank recorded February 15, 2013, is void ab initio for lack of beneficiary interests to assign. Three: In the third Assignment of Mortgage in chain of title to Vitolos property BAC only assigns the Mortgage with no mention of the Note to U.S Bank; thereby splitting the Note from the mortgage.

REQUESTED RELIEF

WHEREFORE, in the interests of justice, and there being no prejudice to the plaintiff if this motion is granted, it is respectfully requested that this court grant this motion to vacate default and permit Defendants to file Answer out of time.DATE: February 25, 2014Respectfully submitted,_____________________________________Laura Rys, Attorney for Defendants


[email protected]



vs.


Case No. F-039732-13

O R D E R

AND NOW, this day of , 2014, upon motion of the Defendants, Jane Vitolo and Alvaro Vitolo, by and through their attorney, Laura Rys, for an entry of an order vacating entry of default and permit an answer to be filed out of time, and the Court having considered all papers filed in support of, or opposition to the Motion, and for good cause appearing, it is hereby ORDERED that default entered against defendants on December 16, 2013, shall be, and is hereby vacated.FURTHERMORE, it is hereby ORDERED that Plaintiff shall have ____ days to file a responsive pleading to Defendants Motion to Dismiss.BY THE COURT:

______________________________Judge William J. McGovern III

CERTIFICATION OF EXHIBIT AI , Laura Rys, am an attorney at law of the State of New Jersey. I represent the defendants, Jane Vitolo and Alvaro Vitolo [hereinafter Vitolos], in the foreclosure case U.S. Bank National Association as Trustee for CSMC Mortgage Loan Trust 2006-7 v. Jane Vitolo, et al, Sussex County Chancery Division, Case no. F-039732-13.I do hereby certify that the exhibit A is a true and correct copy of an Assignment of Mortgage recorded in the Sussex County Records, on Vitolos residence at 20 Surrey Lane, Sparta, N.J. 077871-1727 executed on February 13, 2013, and filed on February 15, 2013.I certify that the foregoing statements are true and correct to the best of my personal knowledge. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.


___________________________Laura Rys, attorney for Vitolos

Documents

Motion to set aside