LAURA M. RYS, ESQ.

NJ Bar ID# 012381993

49 Route 202
Post Office Box 608
Far Hills, New Jersey 07931
(908) 328-2761 Office
(908) 375-8106 Facsimile

Laura.rys@ryslaw.com


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 COUNTY
CHANCERY DIVISION
GENERAL EQUITY

Case No. F-039732-13

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



To:

Kristina G. Murtha
Michael J. Coskey
Kivitz McKeever Lee, PC
701 Market street, Suite 5000
Philadelphia, 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 MOTION
I , 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.

DATE: February 25, 2013


___________________________
Laura Rys, attorney for Vitolos

LAURA M. RYS, ESQ.
NJ Bar ID# 012381993
49 Route 202
Post Office Box 608
Far Hills, New Jersey 07931
(908) 328-2761 Office
(908) 375-8106 Facsimile

Laura.rys@ryslaw.com


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 COUNTY
CHANCERY DIVISION
GENERAL EQUITY

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 DEFAULT
EXCUSABLE 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
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.
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.

1
Almost two weeks after entry of default.
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 DEFENSES
LACK 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. 17:9A
139. 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, 2014
Respectfully submitted,
_____________________________________
Laura Rys, Attorney for Defendants

LAURA M. RYS, ESQ.
NJ Bar ID# 012381993
49 Route 202
Post Office Box 608
Far Hills, New Jersey 07931
(908) 328-2761 Office
(908) 375-8106 Facsimile

Laura.rys@ryslaw.com


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 COUNTY
CHANCERY DIVISION
GENERAL EQUITY

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 A
I , 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.

DATE: February 25, 2013


___________________________
Laura Rys, attorney for Vitolos