SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS --------------------------------------------------------x INDYMAC FEDERAL BANK FSB

DEFENDANTS REPLY AFFIDAVIT TO PLAINTIFFS AFFIRMATION IN OPPOSITION

Plaintiff, -againstVINCENT LYN-COOK Defendant. --------------------------------------------------------x

1.

Index No. 21566/2008

I VINCENT LYNCOOK am the defendant in the above titled action, I am fully familiar with the facts and proceedings heretofore had herein. I submit this reply affidavit in response to plaintiffs affirmation in opposition to my order to show cause and in further support of defendants order to show cause and vacate said judgment and dismiss the foreclosure action pursuant to CPLR 3211 (a)1 CPLR 3211 (a) 3a CPLR 3211 (a)7 and CPLR 3211 (a)8.

2.

The facts in this matter are similar to Wells Fargo Bank vs Paneth (Supt Ct, Orange County Index 2593-2009) (See Exhibit A)

3.

Plaintiff Indymac Bank, sent a notice of delinquency to Defendant at the Premises address dated July 8th , 2008 No mention is made therein of an of the mortgage by Wall Street Mortgage Bankers LTD to Indy Mac FSB. In fact, no mention is made at all of Wall Street Mortgage Bankers or MERS at all.(See Exhibit B)

4.

By Assignment of Mortgage executed on August 29th 2008, almost two months after the Indy Macs notice of default, MERS, as nominee for Wall Street Mortgage Bankers, assigned the mortgage to IndyMac FSB. (See Exhibit C)

5.

This action was commenced by Indymac Bank on August 27th, 2008. Pursuant to the affidavit of service dated August 28th 2008., Defendant was allegedly served by a personal of suitable age of the summons and complaint at the Premises to one Clyde Thomas. (See Exhibit D) No mention is made in affidavit as to whether he also served a notice pursuant to RPAPL 1303 to this mysterious Clyde Thomas

6.

Whether or not, as Defendant contends, he was properly served with process, the Court should merit to the application for the reasons herein stated. Although the notice of default, a contractual condition to acceleration of the mortgage, was sent to Mr. Lyncook at the proper address, the Premises, Indymac has failed to establish that the notice of default was sent by the then proper party, Wall Street Mortgage Bankers, or a then duly and properly authorized agent (see, HSBC Mortg. Corp. (USA) v. Erneste, 22 Misc.3d 1115(A)[Sup Ct, Kings County] citing Manufactures and Traders Trust Co. v. Korngold, 162 Misc.2d 669 [Sup Ct, Rockland County] and QMB Holdings, LLC v. Escava Brothers, 11 Misc.3d 1060[A][Sup Ct, Bronx County]).

7.

8. This fatal defect is neither adequately addressed by plaintiff nor cured by plaintiffs assertion, through counsel, that [i]t is respectfully submitted that Plaintiff was in possession of the Mortgage and Note at the time the instance foreclosure action was commenced.
9.

In regards to the plaintiff establishing personal jurisdiction over the defendant and showing proof that the said HEPTA was delivered with the summons and complaint. The defendant has successfully show to be false the plaintiffs affidavit of service with a specific denial of the process servicer affidavit and set forth sufficient facts to warrant a traverse hearing by pointing out the fact that said party who they claimed they served said summons pursuant to CPLR 308(2) never existed at the defendant's premises that day or any other following day in addition to the fact that said HEPTA notice referred to in the summons and complaint was not recorded with any of the pages in the record of the Queens County Clerk with the Summons and complaint or any of the affidavit of service record to show proof that said letter was delivered.

10. Plaintiff has even failed to include said notice in Exhibit C of the affirmation in opposition. 11. Notice pursuant to RPAPL 1303 must be "delivered" with the summons and [*4]complaint in the foreclosure action (RPAPL 1303[2]), and proper service is a condition precedent to the commencement of the action which is the plaintiff's burden to meet (see Silver, 73 AD3d at 169).
12.

A sworn denial of service by a defendant will rebut the presumption of proper service where it refutes factual allegations in the process server s affidavit or presents a question of fact rather that baldly denying, as defendant has done here, receipt of process. Silverman v. Deutch, 283 AD2d 478 (2d Dept. 1994).

WHEREFORE, for the reasons set forth herein and in defendants application, the defendant, Vincent Lyncook , requests the instant motion be granted in its entirety, together with such other and further relief as to the Court seems just and proper.

Sworn to before me on the Day of June ___ 2011. ______________________ Notary Public __________________ Vincent Lyn-cook

EXHIBIT A

EXHIBIT B

EXHIBIT C

EXHIBIT D