Free Response to Motion - District Court of Delaware - Delaware

Case 1 :04-cv-00931-GIVIS Document 10 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, )
)
Defendant. )
RESPONSE OF SELECT PORTFOLIO SERVICING, INC.
TO MOTION FOR DEFAULT JUDGMENT
Select Portfolio Servicing, Inc. f7l undersigned counsel, hereby submits the Response of Select Portfolio Servicing, Inc. to Motion
for Default Judgment 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 10 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 for Default Judgment on the basis that the answer filed on
our about December 31, 2004 was untimely. As indicated below, as service upon the Trustee
was not proper, the answer was not untimely so the Plaintiff is not entitled to default judgment.
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 and a default judgment should not be entered.
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 for Default Judgment, Plaintiff states that Thomas Barnett,
Esq. was provided with a copy of the complaint. First, service upon counsel for a party is not
I 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
appear likely therefore, SPS is tiling responses to the Plaintiffs Motion to Strike Answer and Motion for Default
Judgment. Counsel for SPS contacted Plaintiff and requested that the parties execute a stipulation subject to Court
approval setting forth the response and reply deadlines, but Plaintiff did not return the telephone call.

Case 1 :04-cv-00931-GIVIS Document 10 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. Bamett does not remedy
Plaintiff s 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 and
Plaintiff is not entitled to a default judgment.
WHEREFORE, Select Portfolio Servicing, Inc. respectfully requests that the Court enter
an order denying the Motion for Default Judgment and for such other and further relief as the
Court deems just.
;Karen Lee Turner (Bar No. 4332)
Tara L. Lattomus (Bar No. 3515)
ECKERT SEAMANS CHERIN &
MELLOTT, LLC
The Towne Center
4 East 8th Street, Suite 200
Wilmington, DE 19801
(302) 425-0430
Attomeys for Select Portfolio Servicing, Inc.
f/k/a Fairbanks Capital Corp.
Dated: May 31, 2005

Case 1 :04-cv-00931-GIVIS Document 10 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 for Default
Judgment in the manner indicated upon the following party:
Via First Class Mail
Darryl K. Fountain, Esq.
715 King Street
Wilmington, DE 19801
;F;ara L. Lattomus (§ar No. 3515)
Dated: May 31, 2005