366 1:1NDERI;AMACK ROAD WESTWOOD. NEW JERSEY07675 20! .664.8855 FAX: 20 t .666.8589 wwwdenbeauxlaw.

com email: info@denbeauxlaw.com

_.,r

Juen 22,2011

DENBEAUX &:P]~~UX
Marcia W Denbeaux> Joshua W Denbeaux: Adam Deutsch Marl: P. Denbeaux' OfCounse! 'Admitted in NJ and ~JY

Sent Via New Jersey Lawyers Service Clerk, Superior Court of New Jersey Chancery Division General Equity Part Wilentz Justice Complex, 8th Floor 212 Washington Street Newark, New Jersey 07102

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 in Accordance 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

»

en
CD

1

g
::0

......

--I

:r
m

o "
S
Z~

2

m

:::0

0,,0
:::0-< -10

eZ

en
G)

(")e

Ie m:::o :::Om »0
m

I 1J

en

S
Z

m

;p

2

-1m Z-I

-I :::0

X

"T1 "T1

Oen

o
~

m

rn.z. :::O?l mo D° e3
:::0

~~ :::0.

m

eno

0:;0

en ;;!

....; :r:

:::0 I

Den
COJ

m):>

m

:::om mm
0-1 -<Z

o

02

z~

:::0 :::0

o C

:::0 -<

o "

-I....;
::0-<

c-l

~a ma
C

:::0
CIJ "1J

:r:

m

Cs :::0):>m

Oen

o
o en

o

s:: m
z
-I

-u=l

:::0

:::00 -1-1

2
'r

o
(1

en

~ :r
m :u
m

page

L 01 L

SHIP TO
Sharon McMahon, Esq. Phelan, Hallinan & Schmieg, PC 400 FELLOWSHIP RD Suite 400 MOUNT LAUREL,NJ 08054-3437

ITEM DESCRIPTION
file Motion to Dismiss COmplaint

http://www.njls.comINJLS20/SecurediShipmentPrint.aspx?ShipmentId=15500244

6/23/2011

i ::::
.E. ........
tI'.I

~

OlOlm::u"'T1 Ol:::JZ (j) '" cr tn 0 ~Z~~S: OOXC _O~OPC Z CD0 c._:S::::J O):>C'"m -..Jollliji Ol",c:~ -..J X 91;0 C ...... 0 Ol):> X
Olo

~(.oJoo

... en
""'I

I (')

!~
'::r

l>

CD

og:]

po X

Z
"'T1

I

I~

0

0

t=1 w
tv
0
CD

~

S
Z~

0 ::u

0-

"'T1

w ---n

eZ
mm
a
-I

0

(J)

~ ~ ~

W

e:
CD

o

(J)

r. ...... r.o
.ES
(Xl

Zm
e,

z :E

::u-< -10 m::u

Ie

I "'U

S

r+
PJ

~

"l:I

tI'.I

w
"d

>::

e:

'--:1

a
CD

§h

IT .........
VI VI

0 0

tv VI tv

):>000;0 ::::0 0 D>CDOJ r Q~§.~~ iff!!!." [);Till o r z~ '< Z Z 00cn3CD ....... CD OlZ o ;011(')"0 I1l en 0 :s: .. ::u 8 -..J:::r):>~ m a.0l~~-..J 01 "'T1 .. 0(') m ):>~OZO ::u 00<' m (j) z CD :::J o m m ..c

m2. ::u?> rna 0° C3 ::u m
0

~i
::U.

Z

Ol
CD

, -..J Z (.oJ r a a0 l> Z "'Tl ~ o~ Im ID m :::tJ a .ES ::u en
CD CD
(Xl

m A en cm -<
~

::u ;0

z
en

-1m 0 en

»0 (")e
-I

::Urn

z
::u m

m

» ."
X
."

-I

o
0 ::u
"'T1

m

m
0

I UJ 'U

-I

0 en
::u m mm
0

::u I rn »

"'U -l

c-l -1-1

(');0

»

e

OJ

a a

c'n (.oJ I

~ffi:::tJ

z

c

-< 0

!il-< rna

IO
::0 UJ I 'U

c

r r

< o m

-< Z 0 C/)

z

0

-l

~

eS
::u
~

::u m o 0 ::u
C/)

::u

m z

~

-I

-I

-u

0

~

o 2S

»

::u 0
-l -l

m 0

Nw
-.....
0 ......... .........

0'1

tv

0 C 1\:1 Ul 1\:1

~ ~ UI en

z G)

Z L. r
C/)
-i I ::0

o c

rn

m

rage

L.

or L.

SHIP TO
Chancery Division Clerk, Superior Court of New Jersey Wilentz Justice Complex 212 Washington Street Newark,NJ 07102-

ITEM DESCRIPTION
file Motion to Dismiss COmplaint

http://www.njls.comINJLS2 O/Secured/Sill pmentPrint.aspx?ShipmentId=

15500252

6/23/2011

s
Joshua Denbeaux Denbeaux & Denbeaux: 366 Kinderkamack Road Westwood, New Jersey 07675 (201) 664-8855/ Fax: (201) 666-8589 Attorneys for Defendants
fe ......•••
t.· _•••.•••••••••••••••••• ~.••••• ~
u

u

,

t

u

':-

; CHASE HOME FINANCE, LLC~

;

~ SUPERlOR COURT OF NEW JERSEY

!:
:

~ CHANCERY DIVISION: ESSEX COUNTY

Plaintiff, Vs.

j

:

: DOCKET NO.: F-57750-10 :
:
:

!
!

:
~

: : A Civil Action
1 : NOTICE OF MOTION TO ~ DISMISS THE COMPLAINT AND IMPOSE 1 ~ SANCTIONS FOR FRIVOLOUS LITIGATION
:

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

Defendants. Sharon McMahon, Esq. Phelan, Hallinan & Schmeig, PC 100 Fellowship Road, Suite 100 Mount Laurel, NJ 08054

To:

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 366 Kinderkamack Road Westwood, New Jersey 07675 (201) 664-8855/ Fax: (201) 666-8589 Attorneys for Defendants
J~.'•••••, ~."'.I t
••••• -i"'''' •• "' •••• 1 •••••••••

"1.

CHASE HOME FINANCE, LLC, Plaintiff, Vs. KEVIN L. MASON, et als., Defendants.
~ t.t ••• t

SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION: ESSEX COUNTY DOCKET NO.: F-57750-10 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. 3. 4. Plaintiff shall pay $ Plaintiff shall pay $ as reasonable counsel fees to defendants. as sanction to the Treasurer, State of New Jersey. days of the date of this '

A copy of the within Order shall be served on all parties within __ Order.

, JSC ( ( ) ) OPPOSED UNOPPOSED

Joshua Denbeaux Denbeaux & Denbeaux 366 Kinderkamack Road Westwood, New Jersey 07675 (201) 664-8855 I Fax: (201) 666-8589 Attorneys for Defendants
~•••••••••••• ".4 '14,,""1' ••••••

~.*.~~ ,..,

'

1

CHASE HOME FINANCE, LLC, Plaintiff, Vs. KEVIN L. MASON, et als., Defendants.
:..u ·
+P ••••••••••••••••••••••••••••••••••••••••••••••••••• :

SUPERlOR COURT OF NEW JERSEY CHANCERY DNISION: ESSEX COUNTY DOCKET NO.: F-57750-10 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 in default 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. In our 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 366 Kinderkamack Road Westwood, New Jersey 07675 (201) 664-8855 I Fax: (201) 666-8589 Attorneys for Defendants

f ~ ~ ~..,....•....~

t •••••••••

u •••••••

u •••••••••••••••••••

'"

"]

l
1
:

CHASE HOME FINANCE, LLC, Plaintiff, Vs. KEVIN L. MASON, et als., Defendants.
u

i i
!

~

~

SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION: ESSEX COUNTY

: :

~

I

: :

~ DOCKET NO.: F-57750-10

i
:

: CERTIFICATION OF JOSHUA W. DENBEAUX PURSUANT TO R. 1:4-4(c)
.

i

I

A Civil Action

........................................................

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. If ill}yare be subject to punishment. y false, I understand I may

Dated: June 22, 2011

Joshua Denbeaux Denbeaux & Denbeaux 366 Kinderkamack Road Westwood, New Jersey 07675 (201) 664-8855 {Fax: (201) 666-8589 Attorneys for Defendants
!.4' 4..'
t."' ••••••••.................... ~ •••••••••••••
PI ••••••

!

~ CHASE I-I01vIEFIN.ANCE, LLC,
~ :

[ SUPERIOR COURT OF NEW JERSEY
~ CHANCERY DMSION:

;
:

: : :
: :
~

:

Plaintiff, Vs.

: COUNTY
!
!

ESSEX

l
: :

: DOCKET NO.: F-57750-10

, KEVIN L. 'MASON, et als.,

i
+ ~

A Civil Action

1 :

: :

Defendants.

l: 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.

Dated: June 23, 2011

2

Joshua Denbeaux Denbeaux & Denbeaux 366 Kinderkamack Road Westwood, New Jersey 07675 (201) 664-8855 / Fax: (201) 666-8589 Attorneys for Defendants

r"CHASE'HOME'FiNANcE:'"LLC~""""""""""i
:
E

:
~

SUPERIOR COURT OF NEW JERSEY CHANCERY DMSION: ESSEX COUNTY

1
~ ~

Plaintiff,

:-

! KEVINL MA::N,
1

et als.,

~

i
:

~ DOCKET NO.: F-57750-10 ~

l

A Civil Action

~

t

Defendants.
u~~ +~ +

l
+.~

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 the plaintiff

process,

and submitted

document demands and interrogatories

requesting

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. abundantly clear and this plaintiff 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 deserves the maximum The facts are

penalty permissible under the

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,

Dated: June 21, 2011

4