Free Response to Motion - District Court of Delaware - Delaware

Case 1 :04-cv-00931-GIVIS Document 9 Filed 05/31 /2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DARRYL K. FOUNTAIN, )
)
Plaintiff, )
)
v. )
) C.A. No. 04-931 GMS
THE CHASE MANHATTEN BANK, )
as Trustee of IMC Home Equity Loan Trust )
1997-3 under the pooling and servicing agreement )
dated as of June 1, 1997, assignee of IMC Mortgage)
Company, L.P., a Delaware Corporation, as )
successor by merger to Industry Mortgage )
Company, L.P., a Delaware Limited Partnership, )
assignee of Approved Residential Mortgage, Inc., )
assignee of` Armada Residential Mortgage, LLC, )
Y
Defendant. )
RESPONSE OF SELECT PORTFOLIO SERVICING, INC.
TO MOTION TO STRIKE ANSWER
Select Portfolio Servicing, Inc. f/k/a Fairbanks Capital Corp. ("SPS"), through its
undersigned counsel, hereby submits the Response of Select Portfolio Servicing, Inc. to Motion
to Strike Answer and in support thereof} states as follows:
1. On or about August 10, 2004, Darryl K. Fountain (the "Plaintiff") commenced suit
against The Chase Manhattan Bank, as Trustee (the "Trustee") of the IMC Home Equity Loan
Trust 1997-3 (the "Trust") seeking injunctive relief and asserting causes of action including, but
not limited to, breach of contract, breach of the covenant of good faith and fair dealing and
consumer fraud. Generally speaking, the Plaintiff’ s case arises from a mortgage foreclosure
action that was concluded in favor of the Trustee in the Superior Court of the State of Delaware
on March 30, 2004. Since the conclusion of the foreclosure action, Plaintiff has made every

Case 1 :04-cv-00931-GIVIS Document 9 Filed 05/31 /2005 Page 2 of 4
attempt to avoid moving from his residence. This action is just his most recent effort to delay the
effect of the foreclosure.1
2. Plaintiff filed the Motion to Strike Answer on the basis that the answer filed on or
about December 31, 2004 was untimely. As indicated below, service upon the Trustee was not
proper so the Motion should be denied.
3. The summons for this action was directed to The Chase Manhattan Bank USA
located at 802 Delaware Avenue, 14th Floor, Wilmington, DE 19801. However, the return of
service indicates that service was made upon Hayward Hamilton at Chase Manhattan Bank, 200
White Clay Center, Newark, DE at the credit card division.
4. The Chase Manhattan Bank USA is not the Trustee. In addition, service upon the
Trustee is not proper at 200 White Clay Center, Newark, DE. Accordingly, the answer that was
filed by SPS on behalf of the Trustee on or about December 31, 2004 was not untimely and
therefore, should not be stricken.
5. The Chase entity acting as the Trustee was The Chase Manhattan Bank, a New York
banking corporation. When Chase acquired JPMorgan in December, 2000, the Trustee became
JPMorgan Chase Bank, a New York banking corporation. Thereafter, JPMorgan Chase Bank, a
New York banking corporation, became JPMorgan Chase Bank, National Association.
Therefore, the entity currently acting as the Trustee is JPMorgan Chase Bank, N.A.
Accordingly, Plaintiff served the wrong entity.
6. In addition, in the Motion to Strike Answer, Plaintiff states that Thomas Barnett, Esq.
was provided with a copy of the complaint. First, service upon counsel for a party is not
' Since counsel substituted their appearance on behalf of SPS on or about March 31, 2005, they have attempted to
reach a settlement of this matter and the underlying foreclosure with Plaintiff Unfortunately, settlement does not
apgglaggliliely therefore, SPS is tiling responses to the Plaintiffs Motion to Strike Answer and Motion for Default

Case 1 :04-cv-00931-GIVIS Document 9 Filed 05/31 /2005 Page 3 of 4
effective. Second, in this proceeding, Mr. Barnett actually represented SPS as servicing agent
for the loans subject to the Trust. Accordingly, service upon Mr. Barnett does not remedy
Plaintiffs service defects.
7. The Plaintiff failed to properly serve the Trustee. Therefore, the answer filed by SPS
as the servicing agent of the loans subject to the Trust cannot be considered untimely.
WHEREFORE, Select Portfolio Servicing, Inc. respectfully requests that the Court enter
an order denying the Motion to Strike Answer and for such other and further relief as the Court
deems just.
` ’ ’·/ A4 ' .
g 5
. Karen Lee Turne (Bar No. 4332)
Tara L. Lattomus (Bar No. 3515)
ECKERT SEAMAN S CHERIN &
MELLOTT, LLC
The Towne Center
4 East Sth Street, Suite 200
Wilmington, DE 19801
(302) 425-0430
Attorneys for Select Portfolio Servicing, Inc.
f/k/a Fairbanks Capital Corp.
Dated: May 31, 2005

Case 1:04-cv—00931-G|\/IS Document 9 Filed 05/31/2005 Page 4 of 4
CERTIFICATE OF SERVICE
I, Tara L. Lattomus, Esquire, hereby certify that on May 31, 2005, I caused to be served
copies of the attached Response of Select Portfolio Servicing, Inc. to Motion to Strike Answer in
the manner indicated upon the following party:
Via First Class Mail
Darryl K. Fountain, Esq.
715 King Street
Wilmington, DE 19801
gTara L. Lattomus (Bar No. 3515)
Dated: May 31, 2005