Chase v Mason Motion to Dismiss

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3 6 6 1 :1 N D ER I;A M A C K R O A D

W ES TW O OD . N EW J ER SE Y 07 67 5

20! .664.8855FAX: 20 t .666.8589

wwwdenbeauxlaw.comemail: [email protected]

Juen 22,2011

Clerk, Superior Court of New Jersey

Chancery Division General Equity Part

Wilentz Justice Complex, 8th Floor

212 Washington Street

Newark, New Jersey 07102

DENBEAUX

&:P]~~UXMarcia W Denbeaux>

Joshua W Denbeaux:

Adam Deutsch

Marl: P . Denbeaux'OfCounse!

'Admitted in NJand ~JY

Sent Via New Jersey Lawyers Service

Re: Chase Home Finance v. Mason

Docket No.: F-57750-10

Dear Clerk:

This firm represents the defendants in the above-referenced foreclosure litigation.

Enclosed for filing please find an original and one copy of the Notice of Motion to

Dismiss the Complaint and for an Award of Counsel Fees inAccordance with NJSA

2A:lS-59.1, Brief in Support of Defendant's Motion, proposed form of Order and

Certification of Service. Kindly file the enclosed returning a copy marked "Filed" to this

office in the envelope provided.

Our firm's check in the amount of$30.00 is also enclosed.

Thank you.

Very truly yours,

JWD:am

cc: Sharon McMahon, Esq.

Mary & Kevin Mason

Enclosures

mailto:[email protected]

mailto:[email protected]



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rage L. or L.

SHIP TOChancery Division

Clerk, Superior Court of New Jersey

Wilentz Justice Complex

212 Washington Street

Newark,NJ 07102-

ITEM DESCRIPTIONf ile Motion to Dismiss COmplaint

http://www.njls.comINJLS2 O/Secured/Sill pmentPrint.aspx?ShipmentId= 15500252 6/23/2011

http://www.njls.cominjls2/

http://www.njls.cominjls2/



s

Joshua Denbeaux

Denbeaux & Denbeaux:

366 Kinderkamack Road

Westwood, New Jersey 07675

(201) 664-8855/ Fax: (201) 666-8589

Attorneys for Defendants

fe ..... .••• t. · _ •••. ••••• ••••• •••••• •• ~.•• ••• ~uu , t u ':-

; CHASE HOM E FINANCE, LLC~ ~; ~

! Plaintiff, j: :: :: :

! Vs. :! :

: :

~ KEVIN L.MASON, et als., 1: :

~ ~~ Defendants. 1

: ~t :

SUPERlOR COURT OF NEW JERSEY

CHANCERY DIVISION: ESSEX COUNTY

DOCKET NO.: F-57750-10

A Civil Action

NOTICE OF MOTION TO

DISMISS THE COMPLAINT AND IMPOSE

SANCTIONS FOR FRIVOLOUS LITIGATION

To: Sharon McMahon, Esq.

Phelan, Hallinan & Schmeig, PC

100 Fellowship Road, Suite 100

Mount Laurel, NJ 08054

Dear Madam:

PLEASE TAKE NOTICE that on Friday, July 22,2011 at nine o'clock in the forenoon

or as soon thereafter as counsel may be heard, or on a date to be set by the Court, the

undersigned, attorneys for defendants shall apply by motion to a Judge of the Superior Court of

New Jersey, Chancery Division, General Equity Part at the Wilentz Justice Complex; 8th Floor

212 Washington Street, Newark, New Jersey 07102 for an Order:

1. Granting Defendant's Motion to Dismiss the Complaint;

2. Awarding Defendant reasonable Counsel fees.

PLEASE TAKE FURTHER NOTICE that defendant relies on the enclosed Brief and

Certifications in support of this motion.

PLEASE TAKE FURTHER NOTICE that the defendants request oral argument.



A proposed form of Order is annexed hereto and oral argument is requested.

DENBEAUX & DENBEAUX

Dated: June 21, 2011

2



Joshua Denbeaux

Denbeaux & Denbeaux



(201) 664-8855/ Fax: (201) 666-8589


J~.'•••••, ~."'.I••••• -i - "'''' •• " ' •••• 1 ••••••••• " 1 .CHASE HOME FINANCE, LLC,

Plaintiff,

Vs.

KEVIN L. MASON, et als.,

Defendants.

~ t.t••• + "' ~

SUPERIOR COURT OF NEW JERSEY



A Civil Action

ORDER

This matter having come before the Court upon application of Denbeaux & Denbeaux,

counsel for defendants, upon notice to all counsel, and the Court having considered the moving

papers submitted; having heard oral argument of counsel and the parties, if any, and having

considered same, and for good cause shown;

It is, on this day of July, 2011, hereby ORDERED, as follows:

1. Defendants' Notice of Motion to Dismiss the Complaint is granted, with prejudice.

2. Plaintiff shall pay $ as reasonable counsel fees to defendants.

3. Plaintiff shall pay $ as sanction to the Treasurer, State of New Jersey.

4. A copy of the within Order shall be served on all parties within __ days of the date of this '

Order.

, JSC

( ) OPPOSED

( ) UNOPPOSED



Joshua Denbeaux

Denbeaux & Denbeaux



(201) 664-8855 I Fax: (201) 666-8589Attorneys for Defendants

~• •• •• •• •• •• • ".4 '14,,""1' • •• •• • ~ . * . ~ ~. ., ' 1CHASE HOME FINANCE, LLC,

Plaintiff,

Vs.

KEVIN L.MASON, et als.,

Defendants.

: . . u · +P ••••••••••••••••••••••••••••••••••••••••••••••••••• :

SUPERlOR COURT OF NEW JERSEY

CHANCERY DNISION: ESSEX COUNTY


A Civil Action

Certification of Mary Mason

I, Mary Mason, of full age, hereby certify as follows:

1. I am a defendant in this action. I reside at the property in foreclosure, along with my

husband and my aged and ailing mother, for whom I am the care provider.

2. I have never been involved in the Court system before. I always pay my bills on time,

and I have never had a foreclosure action commenced against me.

3. My husband and I have been absolutely terrified ever since we got the first notice that we

were indefault and that the bank was going to foreclose on our house.

4. We have been in the house for over 10 years, and we have always paid our mortgage

payment on time - except for the possible exception of two occasions where I think I was

a few days late and had to pay a late charge.

5. Inour household, I am the person responsible for maintaining the family finances and

paying the bills. I have paid the mortgage on time, as explained above, and I have

always, ever since we got the loan, paid the taxes and insurance separately from the

monthly mortgage payment.

1



6. We never had any problems until Chase purchased our note. As soon as Chase purchased

our loan, we started getting notices that we had not paid our taxes and that we sere

therefore in default under the terms of the mortgage. This was never true, and I spent

hours and hours on the phone with the callers from Chase, explaining that the taxes had

been paid, but it did not work.

7. I could not understand how I could explain to them that the taxes were paid, that I had

receipts from the town and cancelled checks, and that the city tax clerk's records showed

no taxes due, and still the bank representatives claimed that we were in default for not

paying our taxes or insurance. I spent hours, and hours, and hours, and hours, and hours,

and hours and then more hours on the phone with Chase.

8. They called us CONSTANTLY. During the day, at night, while we ate dinner, while we

tried to relax on a Saturday morning, THEY CALLED US ALL THE TIME. I tried for

so long, and so hard, to convince them that we had paid the taxes but they never believed

me or they told me they would fix it, but then the next Chase representative would call a

few minutes later and the process would start over again.

9. They often told me I had to document something, and I would go and get the documents

and call them back, but it never worked. We were frantic with anxiety.

10. They talked about something called an escrow account, but there was no escrow account.

I did not know what an escrow account was in connection with a mortgage loan, but my

attorneys have explained it to me.

11. What it means is really quite irrelevant since I paid all the taxes and insurance on time. I

can prove that, as I have done to the plaintiff by the Notice of Frivolous Litigation my

2



attomey sent, and also by the Fair Credit Reporting Act Notices I have sent to the Credit

Reporting Agencies and also, by copy, to the plaintiff through its attorney.

12. It is difficult to explain to this Court the pain that this has caused to me and to my family.

13. We are not lawyers, and we have no experience with the Court system.

14. My mother, who is very elderly and ill, is in my care. I lost many nights of sleep

worrying about what would happen to my mother and to us if the bank threw us out on

the street. I really believed that there was nothing we could do.

15. Our first attorney we hired wrote a letter to the Bank, explaining that we were current and

that there was a mistake. When the bank ignored him, we thought that all was lost, even

though we knew that we were right.

16. I think he spoke to the bank at least once, because he told me that it seemed as though

Chase had made an error when they purchased the note and mortgage on our home. We

live in Orange, New Jersey, and he seemed to think from what was told to him that

maybe Chase had put our house in as Orange, California, a much more well-known

Orange. I have no idea what the problem is, but I do know that the problem belongs to

Chase because none of the other banks who owned our note and mortgage ever made any

mistakes with the loan.

17. I don't know if the Court knows how awful and humbling it feels to feel like you are right

but that the system does not care, and that because of it you will lose your home, and

perhaps your mother will die in the street, or in some stranger's home.

18. Those were, truly, my worries that kept me up at night and caused my husband and me to

worry all day and to get sick. My husband and I became very depressed. It was an awful

two years of fighting with this horrible bank.

3



19. My current attorney, who we hired when the bank finally filed foreclosure complaint

against us, reviewed our documents, and spent many hours meeting with us, reviewing

our proof of payment of taxes and insurance, talking to the City Tax Assessor's Office,

and comparing the payment schedule from the insurance company against our proofs of

payments.

20. Eventually he told us that he would be able to alert the bank to the problem by notifying

them, through the Answer to the Complaint, that the complaint was filed in error. We

filed the Answer, and told the plaintiff and its attorney that the matter was a mistake,

explained the mistake, and told them we would do whatever was necessary to prove that

the entire pleading was wrong.

21. The plaintiff ignored the first notice that my attorney included in the Answer, ignored the

copy of the Fair Credit Reporting Act, ignored the Second Notice of Intent to Foreclose

and refused to provide the documents my attorney asked they produce, which production

would have proved, even to the plaintiff, that they were wrong to threaten us with

foreclosure and wrong to ruin our lives for the last two years,

22. None of that happened, and we are now in litigation to save our home that has never been

threatened.

23. Even after the bank refused our monthly payments, we kept paying the taxes, we kept

paying the insurance, and we kept paying the bank the monthly mortgage payments. The

bank started refusing them some months ago, and whenever they returned the money, we

deposited it into our savings account. We have every penny of payments that the bank

returned to us this past year.

4



Joshua Denbeaux

Denbeanx & Denbeaux



(201) 664-8855 I Fax: (201) 666-8589Attorneys for Defendants

f ~ ~ ~ . , . . . . • . . . . ~ t••••••••• u••••••• u••••••••••••••••••• '" "]

l CHASE HOME FINANCE, LLC, i

~ ~1 Plaintiff, i~ ~: !

: :: Vs. :

I KEVIN L.MASON, et als., I:

i Defendants. i........................................................ u .




A Civil Action

CERTIFICATION OF JOSHUA W.

DENBEAUX PURSUANT TO R. 1:4-4(c)

I, Joshua W. Denbeaux, offull age, hereby certify as follows:

1. I am a partner in the law :firm of Denbeaux & Denbeaux and am the attorney

assigned to represent deferidants in this matter.

2. I certify that the faxed signature on the enclosed Certification of Mary Mason in

support of the Motion to Dismiss and for an award of Counsel Fees is genuine. The original

signature will be filed with the Clerk if requested by the Court or

I certify the foregoing statements are true. Ifill}yare

be subject to punishment.


y false, I understand I may



Joshua Denbeaux

Denbeaux & Denbeaux


Westwood, New Jersey 07675(201) 664-8855 {Fax: (201) 666-8589


!.4 ' 4..' t . " ' •• •• • • • • .. . . . . . . . . . . . . . . . . . . ~ • • •• • • • •• • • • • P•••••• !

~ CHASE I-I01vIEFIN .ANCE, LLC, [

~ ~: :; Plaintiff, l: !: !

: :: Vs. :: :

, KEVIN L. 'MASON, et als., i: :: :

1 Defendants. l: :

~ + ~


CHANCERY DMSION: ESSEX

COUNTY


A Civil Action

CERTIFICATION OF JOSHUA W.

DENBEAUX

1, Joshua W. Denbeaux, offull age, hereby certify as follows:

1. I am a partner in the law fum of Denbeaux & Denbeaux, attorneys for

Defendants in this matter.

2. I make this certification in support of the defendants' motion to dismiss the

complaint, with prejudice, and to impose counsel fees and other penalties as sanctions

against the plaintiff's frivolous litigation.

3. Attached to the brief as Exhibit 8 is a copy of a billing summary of the hours

spent on this file, charged at my standard hourly rate of $400 per hour.

4. I further certify that the enclosed motion was properly served on the plaintiff,

through counsel of record.

5. On this date undersigned prepared and filed the within Notice of Cross Motion

to Dismiss Plaintiffs Complaint, Defendants' Briefin Support of the Motion, proposed



form of Order and this Certification of Service to the Clerk for the Superior Court, Essex

County ChanceryDivision at the address as it appears in the 2011 New Jersey Lawyers

Diary via New Jersey Lawyers Service.

6. I hereby further certify that on this date I served a copy of the within Notice of

Motion to Dismiss Plaintiffs Complaint and for Sanctions against frivolous litigation,

Defendants' Briefin Support of the Motion, proposed form of Order and this

Certification of Service via New Jersey Lawyers Service to the attorneys for Plaintiff,

Sharon McMahon at Phelan, Hallinan & Schmieg, PC at the address for the firm as it

appears in the 2011 New Jersey Lawyers Diary.

I certify that the foregoing statements are true, I am aware that if they are

willfully false, I may be subject to punishment.


2



Joshua Denbeaux

Denbeaux &Denbeaux



(201) 664-8855 / Fax: (201) 666-8589


r " C H A S E ' H O M E ' F i N A N c E : ' " L L C ~ " " " " " " " " " " i: :

E ~

1 Plaintiff, l~ ~

~ ~

! K E V I N L M A : : N , et als., i- :

~ ~

1 Defendants. l

t u~~ +~ + +.~


CHANCERY DMSION: ESSEX COUNTY


A Civil Action

BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISlVllSS AND FOR AN

AWARD OF COUNSEL FEES IN ACCORDANCE WITH N.J.S.A. 2A:15-59.1

PRELTIMINARYSTATE~NT

This is a frivolous foreclosure complaint. Defendants have never missed a monthly

mortgage payment, they have paid their non-escrowed real property taxes and they have paid

their annual insurance payment.

The loan is more than 10 years old, and was sold between investors a number of times.

There were no problems with anything until Cbase Home Finance, LLC purchased the loan.

Chase made internal errors with regards to the loan and improperly placed the loan in the

foreclosure track, and defendants were unable to stop it.

This case was commenced, and plaintiff was served with two Notices of Frivolous

Litigation, both ignored, and one Fair Credit Report Act Notice, which was also ignored.

I



Defendants now bring this motion to dismiss the foreclosure complaint, with prejudice,

and to impose counsel fees and sanctions as permitted by the Frivolous Litigation Court Rille and

Statute.

PROCEDURAL AND FACTUAL BACKGROUND

On or about April 5, 1999 Defendant executed a Note payable to the order of to the order

of Advanta National Bank, Defendants paid on time every month from the start of the loan to

date. [Exhibit 1: Certification of Mary L. Mason]

As per the terms of the loan, there were no escrows for taxes and insurance, and Mrs.

Mason paid the taxes and insurance on the loan from the beginning of the loan to date. [Exhibit

1: Certification of Mary L.Mason]

Nevertheless, plaintiff filed a Complaint in this case, alleging default (undisclosed as to

the cause of the default) and requesting the Court enter judgment in foreclosure and sell the

defendants' home. [Exhibit 2: Complaint]

The allegation of default is absolutely, and completely, false. Defendants have pointed

this out to the plaintiff on several occasions, [Exhibit 3: Answer, Affmnative Defenses and

Notice of Frivolous Litigation; Exhibit 4: Fair Credit Reporting Act Notice; Exhibit 5: Second

Frivolous Litigation Notice]

It cannot be said that defendants have not properly and fully notified plaintiff of the

errors. The original Answer included a claim for Frivolous Litigation, [Exhibit 3], and

defendants' copied plaintiff's counsel on the Fair Credit Reporting Act Notice it sent to the

Credit Reporting Agencies, [Exhibit 4] and, receiving no response from plaintiff or counsel to

any of the prior notices, defendants served plaintiff, through counsel, with a Second Notice of

Frivolous Litigation. [Exhibit 5]

2



Simultaneously, defendants continued with the discovery process, and submitted

document demands and interrogatories requesting the plaintiff to produce the documents

necessary to prove their case (that there was a default) in the hopes that the process would

provide the plaintiffthe Information necessary to determine, on its own, that the action was

without merit and to withdraw. [Exhibit 6: Defendants' Discovery Demands]

This did not happen because the plaintiff refused to comply with the defendants'

discovery requests. [Exhibit 7: R. 1:6-2(c) Notice]

Defendants retained this firm for several purposes: First, to stop this frivolous

foreclosure, Second, to get all counsel fees incurred by the defendants paid, Third, to impose

sanctions upon plaintiff and counsel for the abusive behavior, and Fourth, to pursue damages and

all other relief possible from Chase.

LEGAL ARGUMENT

1. The Complaint Must Be Dismissed as Frivolous and Sanctions Must be Imposed for

Costs, Counsel Fees and other Sanctions

There is very little law to cite to the Court in support of this application. The facts are

abundantly clear and this plaintiff deserves the maximum penalty permissible under the

Frivolous Litigation statute.

The Frivolous Litigation Court Rule, R. 1:4~8,basically mirrors the Frivolous Causes of

Action statute, NJS 2A:15-59.1. Defendants have complied with all notice requirements under

the statute and are entitled to relief. Savona v. Di Giorgio Corporation, 360 N.J. Super. 55

(2003) There is simply no excuse for the plaintiff s misconduct in this case.

3



CONCLUSION

This is an example of the abuses occasioned by lenders on homeowners. Defendants

have done everything in their power to convince the plaintiff bank and plaintiff's counsel that

their actions are wrong, and based on faulty information.

That the plaintiff has not dismissed the Complaint, with prejudice, is the fact that requires

this Court to act. Whether plaintiff intentionally continued its misconduct even after it knew that

their actions were unjust and wrong, or just chose to ignore the repeated notices of improper

conduct is essentially irrelevant to this proceeding should a resolution of the matter not be

reached as a result of this Court's intervention.

For all of the reasons stated, this Court should grant the motion, dismiss the Complaint

with prejudice, and Order plaintiff to pay reasonable counsel fees to defendants, and also a

sanction to be paid to the Court for the frivolity of the action.

Respectfully submitted,


4

Chase v Mason Motion to Dismiss

Documents

Transcript of Chase v Mason Motion to Dismiss