FILED: NEW YORK COUNTY CLERK 06/15/2017 11:55 AM
`FILED: NEW YORK COUNTY CLERK 06m2017 11:55 AM
`NYSC 3F DOC. NO. 80
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`NYSCEF DOC. NO. 80
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`EX NO.
`850202/2016
`INDEX NO. 850202/2016
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`IND
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`RflCnIVfiD
`06/15/2017
`RECEIVED NYSCEF: 06/15/2017
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`SUPREME COURT OF THE STATE OF NEW YORK
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`COUNTY OF NEW YORK
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`Wells Fargo Bank, N.A., as Trustee for Banc of
`America Funding Corporation Mortgage Pass-Through
`Certificates, Series 2007-5
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`-against-
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`Piaintiff(s),
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`Affirmation in Opposition to
`Order to Show Cause
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`Index Number: 850202/16
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`Unknown Heirs At Law Of Kyle Harrington, And If
`They Be Dead, Any And All Persons Unknown To
`Plaintiff, Claiming, Or Who May Claim To Have An
`Interest In, Or Generally Or Specific Lien Upon
`The Real Property Described In This Action; Such
`Unknown Persons Being Herein Generally Described
`And Intended To Be Included In The
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`Following Designation, Namely; The Wife, Widow,
`Husband, Widower, Heirs At Law, Next Of Kin,
`Descendants, Executors, Administrators, Devisees,
`Legatees, Creditors, Trustees, Committees, Lie-nors,
`And Assignees Of Such Deceased, Any And All
`Persons Deriving Interest In Or Lien Upon, Or Title
`To Said Real Property By, Through Or Under Them,
`Or Either Of Them, And Their Respective Wives,
`Widows, Husbands, Widowers, Heirs At Law, Next Of
`Kin, Descendants Executors, Administrators,
`Devisees, Legatees, Creditors, Trustees, Committees,
`Lienors And Assigns, All Of Whom And Whose
`Names, Except As Stated, Are Unknown To Plaintiff;
`Catherine Harrington; Wells Fargo Bank, Na, Express
`Elevator Construction Co., Criminal Court Of
`The City Of New York, New York Supreme Court,
`Big Apple Compactor Co Inc., New York City
`Department Of Finance, New York City Parking
`Violations Bureau, The People Of The State Of
`New York, And ”John Doe #2 ," Through ”John
`Doe #12,” The Last Twelve Names Being Fictitious
`And Unknown To Plaintiff, The Persons Or Parties
`Intended Being The Tenants, Occupants, Persons Or
`Corporations, If Any, Having Or Claiming An Interest
`In Or Lien Upon The Premises Being Foreclosed
`Herein,
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`
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`Defendant(s).
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`Ted Eric May, an attorney duly admitted to practice law before the Courts of the State of New
`York, hereby affirms the following statements to be true under the penalties of perjury:
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`l.
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`I am an attorney with Sheldon May & Associates, PC, who represents the assignee of
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`FILED: NEW YORK COUNTY CLERK 06/15/2017 11:55 AM
`FILED: NEW YORK COUNTY CLERK 06m2017 11:55 AM
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`NYSCEF DOC. NO. 80
`NYSCEF DOC. NO. 80
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`'
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`INDEX NO. 850202/2016
`INDEX NO~ 850202/2016
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`RaCaIVaD VYSCEF: 06/15/2017
`RECEIVED NYSCEF: 06/15/2017
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`the Plaintiff in the above-entitled action. I make this application on the behalf of the
`assignee of the Plaintiff herein in Opposition to Defendant Kyle Harrington’s (hereinafter
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`referred to as “Defendant”) Order to Show Cause.
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`2.
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`l have reviewed the Business Records of Sheldon May & Associates, P.C. and I am fully
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`familiar with the record keeping practices and procedures of Sheldon May & Associates,
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`P.C. The business records that l have reviewed were made in the ordinary course of
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`business and kept in accordance with the record keeping practices and procedures of
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`Sheldon May & Associates, P.C..
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`l have personally reviewed the business records of
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`Sheldon May & Associates, PC. for the property commonly known as 116 W 22nd St 3,
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`New York, New York 10004. The records that I personally reviewed were, including
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`but not limited to, business records, affidavits, and documents of assignee of the Plaintiff
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`and/or their agents provided by assignee of the Plaintiff and/or their agents, the books,
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`files, electronic data, emails, reports, data compilation, memorandum, or other written,
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`printed, or electronic records of any act, transaction, occurrence or event, made in the
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`regular course of business and that it was the regular course of such business that these
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`record be made, at the time of the act, transaction, occurrence or event, or within a
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`reasonable time thereafter and can therefore state based upon my personal knowledge
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`from reviewing the following:
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`3.
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`As will be shown, the Defendant’s Order to Show Cause must be denied in its entirety
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`because he has not set forth any cognizable grounds for the relief requested.
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`PRELIMINARY STATEMENT
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`4.
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`As will be shown, the defendant Kyle Harrington’s metion must be denied in its entirety
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`because he has not set forth any cognizable grounds for the Court to grant the drastic
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`FILED: NEW YORK COUNTY CLERK 06/15/2017 11:55 AM
`FILED: NEW YORK COUNTY CLERK 06m2017 11:55 AM
`NYSC 3F DOC. NO.
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`NYSCEF DOC. NO. 80
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`INDEX NO. 850202/2016
`INDEX NO~ 850202/2016
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`RaCaIVaD yYSCEF: 06/15/2017
`RECEIVED NYSCEF: 06/15/2017
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`remedy of dismissing the complaint.
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`The defendant Kyle Harrington is the owner of the premises.
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`The defendant Kyle Harrington does not deny that he executed the note and mortgage to
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`be indebted for the loan-amount. Nor does the defendant Kyle Harrington deny that he
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`defaulted under the terms of the note and mortgage or that he is aware of the pending
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`foreclosure action.
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`Inexplicably,
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`the defendant Kyle Harrington does not even attempt
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`to provide a
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`reasonable excuse for the default, other than his self-serving ciaims, and in any event,
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`does not have a meritorious defense to the foreclosure.
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`For these reasons, set forth in detail below,
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`it
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`is respectfully submitted that
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`the
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`defendant’s motion be denied in its entirety.
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`RELEVANT FACTS
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`This action concerns real property in NEW YORK County and commonly known as 116
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`W 22nd St 3, New York, New York 10004 (the “Premises”). The Defendants Kyle and
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`Catherine Harrington’s non-payment of monthly installments of principal and interest on
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`November 1, 2008, has caused the Owner of the Note and Mortgage to elect to declare
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`the entire mortgage immediately due and payable, in the principal sum of $1,374,938.90,
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`together with interest.
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`10.
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`The Defendant Kyle Harrington’s moving papers do not deny that he defaulted under the
`note and mortgage and acknowledges that as the defendant he was aware of the
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`possibility of losing the residence.
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`11.
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`When the Defendants Kyle and Catherine Harrington did not cure the subject defauit, the
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`FILED: NEW YORK COUNTY CLERK 06/15/2017 11:55 AM
`FILED: NEW YORK COUNTY CLERK 06m2017 11:55 AM
`NYSC 3F DOC. NO.
`80
`-
`NYSCEF DOC. NO. 80
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`INDEX NO. 850202/2016
`INDEX NO~ 850202/2016
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`RaCaIVaD vYSCEF: 06/15/2017
`RECEIVED NYSCEF: 06/15/2017
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`foreclosure action was commenced on October 10, 2016.
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`12.
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`Thereafter, Plaintiff attempted to locate Defendant Kyle Harrington for personal service
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`of process.
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`13.
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`Plaintiffs process server conducted a search for Defendant Kyle Harrington and located
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`several potential addresses. Exhibit “A” 11 4.
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`14.
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`The addresses found includes the address where the Defendant claims to reside. Affidavit
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`of Kyle Harrington 1] 7.
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`15.
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`Plaintiff’s process server attempted personal service at the address the Defendant claims
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`to reside at, 1540 Soledad Ave, La Jolla CA 92037. Exhibit “A” i] 13.
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`16.
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`When Plaintiff’s process server attempted. to serve the Defendant at 1540 Soledad Ave,
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`he observed a lock box on the door and was told by a gardener on the premises that there
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`were not permanent tenants because the house was a weekend rental property. Exhibit
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`“A” it 13.
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`17.
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`Plaintiff’s process server made a formal request at the post office for Kyle Harrington at
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`1540 Soledad Ave and was given a new address of 5535 La J011a Mesa Drive, La Jolla,
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`CA 92037. Exhibit “A” 1] 12.
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`18.
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`Plaintiff’s process server attempted to personal server the Defendant at 5535 La Jolla
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`Mesa Drive but was informed by the Defendant’s ex-wife that he no longer resided there.
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`Exhibit “A” fit 10.
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`19.
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`Plaintiff’s process server made a formal request to the Post Office for any forwarding
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`address for Kyle Harrington at 5535 La Jolla Mesa Drive but received a responding
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`indicating the address was good as addressed. Exhibit “A” ‘51 8.
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`20.
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`Plaintiff submitted this information from it’s process server to the Court.
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`FILED: NEW YORK COUNTY CLERK 06/15/2017 11:55 AM
`FILED: NEW YORK COUNTY CLERK 06m2017 11:55 AM
`NYSC 3F DOC. NO.
`80
`NYSCEF DOC. NO. 80
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`INDEX NO. 850202/2016
`INDEX NO~ 850202/2016
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`RaCaIVaD uYSCEF: 06/15/2017
`RECEIVED NYSCEF: 06/15/2017
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`21..
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`The Court
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`issued an order granting Plaintiff 5 request
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`to serve the Defendant by
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`publication.
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`22.
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`Defendant filed an Order to Show Cause arguing this action should be dismissed for
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`failing to properly serve the Defendant.
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`Thus, for reasons stated below, the defendant’s motion lacks merit and must be denied in
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`23.7
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`its entirety.
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`24.
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`To begin with, it is respectfully submitted that the Court should not even entertain the
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`defendant’s present motion because the defendant defaulted in this action and does not
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`have a reasonable excuse for their default and, more importantiy, does not have a viable
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`defense to foreclosure. Accordingly, it is respectfully submitted that the defendant’s
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`request for relief is not properly before the Court and should have been dismissed
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`outright.
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`25.
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`Even if the Court were to consider the substance of the defendant’s claims in the present
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`motion,
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`it is evident that the defendant has not set forth even one valid reason for
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`dismissing the complaint.
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`ARGUMENT
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`26.
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`Defendant Kyle Harrington has knowingly and purposely avoided appearing in this
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`foreclosure action.
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`27.
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`As such, Plaintiff filed a motion granting service by publication and the same was
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`granted on March, 30, 2017. See Exhibit “B”
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`28.
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`The Defendant claims that
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`the Court’s order granting service by publication was
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`improper because Plaintiff should have been able to locate the Defendant for personal
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`service of process.
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`FILED: NEW YORK COUNTY CLERK 06/15/2017 11:55 AM
`FILED: NEW YORK COUNTY CLERK 06m2017 11:55 AM
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`NYSCEF DOC. NO.
`80
`NYSCEF DOC. NO. 80
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`INDEX NO. 850202/2016
`INDEX NO~ 850202/2016
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` RfiCfiIVfiD VYSCEF:
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`06/15/2017
`RECEIVED NYSCEF: 06/15/2017
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`29.
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`The Defendant argues that if Plaintiff were oniy aware of an affidavit submitted by the
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`Defendant in another ongoing action concerning the Defendant and Plaintiff Wells Fargo
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`were the Defendant claims his address is 1540 Soledad Ave, La Jolla CA 92037, Plaintiff
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`would have been able to serve Defendant without publication.
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`30.
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`However, Plaintiff had already discovered this potential address for the Defendant and
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`attempted personal service at the address. See Exhibit “A” at 1[ 13.
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`31.
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`When Plaintiff attempted to serve the Defendant at that address, Piaintift‘s process server
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`could not find any residents on the property. Plaintiff‘s process server spoke with a
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`gardener on the premises who stated that there are no permeant residents at the house
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`because it is a weekend rental property and there was a lock box on the door. See Exhibit
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`“A” at 11 13.
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`32.
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`Plaintiff’s process server also contacted the post office regarding 1540 Soledad Ave, La
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`Jolla CA 92037 and was told that the Defendant had left a new address of 5535 La Jolla
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`Mesa Drive, La Jolla, CA 92037. See Exhibit “A” atfll 12.
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`33.
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`Plaintiffs process server had previously attempted to serve the Defendant at 5535 La
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`Jolla Mesa Drive, La Jolla, CA 92037 but was informed that the address was for the
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`Defendant’s ex~wife and the Defendant no longer resided there. Defendant did not leave a
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`forwarding address. See Exhibit “A” at ii 10.
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`34.
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`After Plaintiff attempted to personally serve the Defendant at the address he claims to
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`reside at, Plaintiff submits the foregoing information detailing the steps it took to attempt
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`personal service on the Defendant. The Court then granted an order allowing service of
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`process by publication.
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`35.
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`Even if Plaintiff was aware of the Defendant’s claim that he resided at 1540 Soledad Ave,
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`FILED: NEW YORK COUNTY CLERK 06/15/2017 11:55 AM
`FILED: NEW YORK COUNTY CLERK 06.132017 11:55 AM
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`NYSCEF DOC. NO. 80
`‘
`NYSCEF DOC. NO. 80
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`INDEX NO. 850202/2016
`INDEX NO~ 850202/2016
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`RaCaIVaD vYSCEF: 06/15/2017
`RECEIVED NYSCEF: 06/15/2017
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`La Jolla CA 92037, sending additional process servers to an address that Plaintiff had
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`already attempted personal service and was informed there were no permanent tenants
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`would have been a “pointless snipe hunt”.
`The house on 1540 Soledad Ave, La Jolla CA-92037 that the Defendant claims to have
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`36.
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`resided at during the entire course of these proceedings was described as a rental property
`by a gardener on the premises and had a lock box on the door, all indicting that contrary
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`to Defendant’s claim there were no permanent residents.
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`37.
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`Moreover, until recently (two weeks ago), the property was still listed on rental property
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`websites showing almost every day this summer being rented.
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`38.
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`The house has recently switched to being listed as “For Sale.”
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`CONCLUSION
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`39.
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`Contrary to Defendant’s hyperbolic assertions, Plaintiff’s conduct in this case was not
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`fraudulent but based on Plaintiff’s good faith efforts to locate the Defendant for personal
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`service.
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`40.
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`Plaintiff did not attempt in to defraud or mislead the Court in any way, Plaintiff attempted
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`to personally serve the Defendant at the address he claims to reside at to no effect.
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`41.
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`Therefore, while Plaintiff is willing to not serve by publication, Plaintiff also requests
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`that this court order the Defendant to be served personally at court, or through his
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`attorney Michael Kennedy Karlson.
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`42.
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`All of the proceedings in this action have been regular and in accordance with the rules
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`and practice of this Court.
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`WHEREFORE, your affirrnant respectfully prays that the Order to Show Cause be denied,
`Defendant Kyle Harrington be personally served in court or in the alternative to order his
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`FILED: NEW YORK COUNTY CLERK 06/15/2017 11:55 AM
`FILED: NEW YORK COUNTY CLERK 06m2017 11:55 AM
`NYSC 3F DOC. NO. 80
`NYSCEF DOC. NO. 80
`
`IND
`EX NO.
`850202/2016
`INDEX NO. 850202/2016
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` flD
` 3F:
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`06/15/2017
`RECEIVED NYSCEF: 06/15/2017
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`attorney to accept service on his behalf, and the foreciosure action be permitted to continue, and
`for such other and further relief as to this Court may deem just and proper.
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`Dated: June 14, 2017
`Rockviile Centre, New York
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`ed Eric May, Esq.
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