CA Retired Judge Samuel L. Bufford said it best …

“Lenders passed around the deed to Vargas’ house as if it were a whiskey bottle at a frat party”

Jp MORGAN CHASE BANK, N.A. f/k/a Jp
MORGAN CHASE BANK f/k/a THE CHASE
MANHA TTAN BANK, AS TRUSTEE,

against

INDI flRA RAMIREZ, JOSEPH JAMES, KEISH
McCLOUD a/k/a KEISHA McLEOD, MYRNA
JAMES, NORTH FORK BANK,

Excerpt:

Finally, a court may vacate a note of issue at any time on its own motion if it appears that a material fact in the certificate of readiness is incorrect (see, 22 NYCRR 202.21 [e]; Simon v City of Syracuse Police Dept., 13 AD3d 1228, 787 NYS2d 577 [4th Oept 2004], Iv dismissed 5 NY2d 746, 800 NYS2d 375 [2005]). Here, based on the evidence submitted with the moving papers and the confusion regarding plaintiff’s standing and prosecution of this foreclosure action, the Court concludes that the certificate of readiness contains a misstatement of material fact, namely, that
disclosure is complete and the action is ready for trial. Accordingly, the Court, sua sponte, vacates the note of issue filed by plaintiff and strikes this action from the trial calendar (see 22 NYCRR 202.21 [e]).

This is a MUST read below…

[ipaper docId=50325156 access_key=key-25hut0sqsr8f7xi6zfvm height=600 width=600 /]

Bayview Loan Servicing, LLC

v

Bozymowski

00296-2010

Rosicki, Rosicki & Associates
Attorneys for Plaintiff
26 Harvester Avenue
Batavia, New York 14020

Lydia Bozymowski
Defendant Pro Se
8 Hofstra Drive
Greenlawn, New York 11740-1908

Peter H. Mayer, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiff, dated May 21, 2010, and supporting papers; and (2) prior Order of this Court, dated November 1, 2010; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the plaintiff’s application (seq. #001) in this foreclosure action is hereby denied for the reasons set forth herein; and it is further

ORDERED that plaintiff shall appear for a hearing on May 13, 2011, 10:00 a.m., at which time the Court will conduct an inquiry of the plaintiff’s witnesses concerning the information and documents submitted by the plaintiff in connection with this foreclosure action, and will determine what, if any, sanction to impose upon the plaintiff and/or the plaintiff’s attorney; and it is further

ORDERED that at the time of the hearing, the plaintiff shall produce the following witnesses to provide testimony under oath in response to all inquiries by the Court: (1) Margaret Burke Tarab, Esq., the attorney from plaintiff’s counsel’s firm who executed the December 13, 2010 attorney affirmation, which is purportedly compliant with the October 20, 2010 Order of the Chief Administrative Judge of the State of New York; (2) Karen Griffith, Vice President of plaintiff Bayview Loan Servicing, LLC, the individual who executed the February 2, 2010 affidavit in support of plaintiff’s application for an order of reference; and (3) Robert D. Repass, plaintiff’s Senior Vice President, identified in Ms. Tarab’s December 13, 2010 affirmation as the plaintiff’s representative with whom she communicated for purposes of executing her said affirmation; and it is further

ORDERED that at the time of the hearing, the plaintiff shall produce for Court inspection all of the documents and records reviewed by plaintiff’s counsel and plaintiff’s other representatives for purposes of submitting its application for an order of reference, including but not limited to the original note and mortgage, and all documents demonstrating exactly when the plaintiff acquired possession of the note and ownership of the mortgage in this case; and it is further

ORDERED that the plaintiff shall promptly serve, via first class mail, a copy of this Order upon the homeowner-defendant(s) at all known addresses, as well as upon all appearing parties (or upon their attorney[s] if represented by counsel), and shall promptly thereafter file the affidavit(s) of such service with the County Clerk; and it is further

ORDERED that failure to comply with any of the directives set forth herein shall result in [*2]the Court issuing any sanction the Court deems appropriate under the CPLR and/or Court Rules, including but not limited to waiver of any interest, attorneys fees and costs to which the plaintiff claims entitlement, as well as dismissal of the plaintiff’s complaint with prejudice.

In this foreclosure action, the plaintiff filed a summons and complaint on January 12, 2010. The complaint essentially alleges that the defendant-homeowner, Lydia Bozymowski, defaulted in payments with regard to the subject mortgage, dated April 22, 2004, in the principal amount of $225,000.00, for the premises located at 8 Hofstra Drive, Greenlawn, New York 11740. The original lender, Florida Bank, N.A. d/b/a Florida Bank Mortgage (“Florida Bank”), is alleged to have had the mortgage assigned to the plaintiff, Bayview Loan Servicing, LLC (“Bayview Loan”), by assignment dated November 25, 2009. The assignment was purportedly executed by Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Florida Bank. In its application (001), the plaintiff requested a default order of reference and amendment of the caption to remove the “Doe” defendants as parties.

By Order dated November 1, 2010, this Court referred the plaintiff’s application to a conference with the Court on December 15, 2010. As part of that Order, the plaintiff’s counsel was instructed to review the pending application prior to the conference “to determine whether or not such application is fully compliant with all foreclosure-related statutes, case law and Court Rules.” If so, counsel was to then “execute and submit to the Court at the conference the requisite attorney affirmation mandated by the October 20, 2010 Administrative Order of the Chief Administrative Judge for the State of New York.” With regard to such attorney affirmation, this Court’s November 1, 2010 Order stated that, “[i]f plaintiff’s counsel is unable for personal or professional reasons to execute the necessary affirmation, the pending application may be withdrawn without prejudice and with leave to resubmit upon proper papers, including the mandatory attorney affirmation.” The November 1, 2010 Order also warned counsel that “with regard to any scheduled court conferences or future applications, if the Court determines that such conferences have been attended, or such applications have been submitted, without proper regard for the applicable statutes, case law and Court Rules, or without regard for the required proofs delineated herein, the Court may, in its discretion, strike the non-compliant party’s pleadings or deny such applications with prejudice and/or impose sanctions pursuant to 22 NYCRR §130-1, and may deny those costs and attorneys fees attendant with the filing of such future applications.”

On December 15, 2010, a conference was held and plaintiff’s counsel submitted an attorney affirmation. Initially, the Court notes the plaintiff’s failure to submit proof of compliance with RPAPL §1304. For those actions commenced on or after September 1, 2008 and prior to January 14, 2010, RPAPL §1304 requires that, with regard to a “high-cost home loan” (as defined in Banking Law §6-l), or a “subprime home loan” or a “non-traditional home loan” (as defined in RPAPL §1304), at least 90 days before a lender or mortgage loan servicer commences a foreclosure action against the borrower, the lender or mortgage loan servicer must give the borrower a specific, statutorily prescribed notice. In essence, the notice warns the borrower that he or she may lose his or her home because of the loan default, and provides [*3]information regarding available assistance for homeowners who are facing financial difficulty. The specific language and type-size requirements of the notice are set forth in RPAPL §1304(1).

Pursuant to RPAPL §1304(2), the requisite 90-day notice must be “sent by the lender or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and if different, to the residence which is the subject of the mortgage. Notice is considered given as of the date it is mailed.” The notice must also contain a list of at least five housing counseling agencies approved by the U.S. Department of Housing and Urban Development, or those designated by the Division of Housing and Community Renewal, that serve the region where the borrower resides, as well as the counseling agencies’ last known addresses and telephone numbers.

This action was commenced on January 12, 2010. Therefore, barring any statutorily stated exceptions, if the subject loan being foreclosed upon qualifies as a “high-cost home loan,” a “subprime home loan,” or “non-traditional home loan,” the pre-commencement notice requirements of RPAPL §1304 will apply. Plaintiff, however, has failed to submit evidentiary proof, including an affidavit from one with personal knowledge, as to whether or not this action involves such a loan and, if so, proof of compliance with the applicable pre-commencement requirements of RPAPL §1304 or, in the alternative, an affidavit sufficient to show why such requirements do not apply. Such failure requires denial of plaintiff’s application for an order of reference. The boilerplate language in paragraph 4(c) of the complaint regarding compliance with RPAPL §1304 “if the underlying mortgage qualifies,” is ambiguous and is, therefore, insufficient to affirmatively show such compliance, particularly where, as here, the complaint is not verified by the plaintiff.

Plaintiff has also failed to submit a properly sworn affidavit in support of the requested relief. In this regard, CPLR §2309(b) requires that an “oath or affirmation shall be administered in a form calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs.” Accordingly, for affidavits to have sufficient validity, a notary public witnessing signatures must take the oaths of the signatories or obtain statements from them as to the truth of the statements to which they subscribe their names (see, Matter of Helfand v Meisser, 22 NY2d 762, 292 NYS2d 467 [1968]; Matter of Imre v Johnson, 54 AD3d 427, 863 NYS2d 473 [2d Dept 2008]; Matter of Leahy v O’Rourke, 307 AD2d 1008, 763 NYS2d 508 [2d Dept 2003]).

In support of its application for an order of reference, the plaintiff submits an affidavit from Karen Griffith, Vice President of plaintiff Bayview Loan; however, there is no showing that the notary who witnessed Ms. Griffith’s signature took an oath from Ms. Griffith, and no statement by Ms. Griffith attesting to the truth of the statements contained in her affidavit. Instead, there is a statement disguised to appear as a proper oath. Rather than swearing to the truth of the statements contained in her affidavit, Ms. Griffith merely attests in paragraph 12 to the truth of the contents of “the [plaintiff’s] complaint” (emphasis added). Such statement is insufficient to satisfy the form of oath required by CPLR §2309(b) with regard to Ms. Griffith’s [*4]affidavit. This is particularly pertinent here because additional submissions by the plaintiff raise questions as to the reliability of Ms. Griffith’s affidavit, as well as the plaintiff’s standing to bring this action.

A plaintiff has standing to maintain the action only where the plaintiff is the proper assignee of the mortgage and the underlying note at the time the foreclosure action was commenced (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]; Federal Natl. Mtge. Assn. v Youkelsone, 303 AD2d 546, 755 NYS2d 730 [2d Dept 2003]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 887 NYS2d 615 [2d Dept 2009]; First Trust Natl. Assn. v Meisels, 234 AD2d 414, 651 N.Y.S.2d 121 [2d Dept 1996]). It remains settled that foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of the mortgage is a nullity (U.S. Bank, N.A. v Collymore, supra; Kluge v Fugazy, 145 AD2d 537, 536 NYS2d 92 [2d Dept 1988]). Furthermore, a plaintiff has no foundation in law or fact to foreclose upon a mortgage in which the plaintiff has no legal or equitable interest (Wells Fargo Bank, N.A. v Marchione, supra; Katz v East-Ville Realty Co., 249 AD2d 243, 672 NYS2d 308 [1st Dept 1998]). Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident (U.S. Bank, N.A. v Collymore, supra).

To support its contention that Bayview had proper standing to commence this action, Ms. Griffith’s alleges in paragraph 6 of her affidavit that “[t]he loan was acquired by and in the possession of the Plaintiff on April 22, 2004″ (emphasis added). Notably, this is the same date the mortgage documents were executed by the defendant-borrower to the original lender, Florida Bank. Even if this nebulous statement by Ms. Griffith were construed to mean that Bayview was in possession of the “note and mortgage” on April 22, 2004, such statement fails to show that the plaintiff was the holder of the note and mortgage when the action was commenced, nearly six years later (see U.S. Bank, N.A. v Collymore, supra; Federal Natl. Mtge. Assn. v Youkelsone, supra; Wells Fargo Bank, N.A. v Marchione, supra; First Trust Natl. Assn. v Meisels, supra). On the one hand, Ms. Griffith alleges in paragraph 6 of her affidavit that the loan was in the possession of the plaintiff on April 22, 2004. On the other hand, in the same paragraph of her affidavit she states that the mortgage “instruments were assigned to [the Plaintiff] by [assignment] dated November 25, 2009.” Compounding this confusion is the handwritten statement on the assignment, asserting that it was “effective as of: 7/1/09.”

Despite these inconsistent statements of fact in support of ownership, there is an additional submission that suggests the true owner is or may be CitiMortgage, Inc. (“CitiMortgage”), a non-party to this action. In this regard, affixed to the last page of the note is an undated indorsement from Florida Bank to CitiMortgage. This indorsement, which was executed by Jacqueline Ring as Florida Bank’s Vice President, specifically states, “WITHOUT RECOURSE PAY TO THE ORDER OF CITIMORTGAGE, INC.” Thus, the plaintiff’s assertion that it possessed “the loan” on the same date it was executed by the borrower, and the inconsistent assertion that plaintiff obtained the mortgage instruments by assignment dated [*5]November 25, 2009, is rebutted by the fact that when the note was indorsed to CitiMortgage, the mortgage passed to CitiMortgage as an inseparable incident (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]. Therefore, without the valid transfer of the note to the plaintiff, the assignment of the mortgage to the plaintiff was a nullity (id.; Kluge v Fugazy, 145 AD2d 537, 536 NYS2d 92 [2d Dept 1988]). Curiously, evidence of the indorsement to CitiMortgage by Florida Bank was not in the plaintiff’s affidavit or attorney affirmation.

The plaintiff has also failed to comply with this Court’s November 1, 2010 Order regarding submission of an attorney affirmation in the form and with the language required by the October 20, 2010 Administrative Order of Hon. Ann Pfau, New York’s Chief Administrative Judge. As explained in this Court’s November 1, 2010 Order, “[p]ursuant to the Administrative Order of the Chief Administrative Judge for the State of New York, dated and effective October 20, 2010, plaintiff’s counsel in foreclosure actions must file with the court in all such actions an affirmation in a form prescribed by the Order.” It remains clear from the language of Judge Pfau’s October 20, 2010 Order, as well from the language of the official mandatory affirmation and its preamble, that the intent of the new Rule is to assure accountability for and accuracy of all court filings in foreclosure actions.

With the intent of the new Rule in mind, this Court requires that after October 20, 2010, the mandatory affirmation must accompany all applications made at any and all stages of foreclosure proceedings. Obviously, a mere single filing at only one phase of the case would not comport with the intent of Judge Pfau’s Order. Indeed, if compliance were sufficient by filing the requisite affirmation at only one phase, improper or untruthful papers could be filed at other phases with virtual impunity. Therefore, plaintiff’s failure to submit the official mandatory affirmation in the form and with the language prescribed by Judge Pfau’s October 20, 2010 Order must result in denial of the requested relief.

In relevant part, the Court’s November 1, 2010 Order also included, with italicized emphasis, the warning set forth in the last sentence of the preamble paragraph of the official mandatory affirmation, which states: “The wrongful filing and prosecution of foreclosure proceedings which are discovered to suffer from these defects may be cause for disciplinary and other sanctions upon participating counsel” (emphasis added). Despite this language required by the official mandatory affirmation, and despite this Court’s emphasis of that language in its November 1, 2010 Order, the December 13, 2010 affirmation signed by plaintiff’s attorney, Margaret Burke Tarab, Esq., does not include such language. Also, as required by paragraph 3 of the official mandatory affirmation, the plaintiff’s attorney must affirm that “[b]ased upon my communication with [plaintiff’s representative], as well as upon my own inspection of the papers filed with the Court and other diligent inquiry, I certify that, to the best of my knowledge, information, and belief, the Summons and Complaint and all other documents filed in support of this action for foreclosure are complete and accurate in all relevant respects . . .” (emphasis added). In counsel’s December 13, 2010 affirmation, the word “diligent” was omitted and replaced with the word “reasonable.” In addition, as required by paragraph 4 of the official mandatory affirmation, the plaintiff’s attorney must acknowledge that he or she understands “that [*6]the Court will rely on this Affirmation in considering the [plaintiff’s] application.” In paragraph 4 of counsel’s affirmation, however, she omitted the specific mandatory language and replaced it with a generic acknowledgment, that “I am aware of my obligations under New York Rules of Professional Conduct (22 NYCRR Part 1200) and 22 NYCRR Part 130.”

Although the Court has heard several attorneys for plaintiff banks informally question Judge Pfau’s authority to have issued the October 20, 2010 Order in the first instance, this Court gives full deference to her Honor’s Order (see NY Const, art VI, § 28). Counsel for plaintiff banks have also claimed that the attorney affirmation required by Judge Pfau’s Order was unofficially amended on November 18, 2010 and posted on the internet in amended form. Counsel, however, has failed to submit an order by Judge Pfau executed after her October 20, 2010 Order, or any other legitimate legal authority, in which the language of the official mandatory affirmation was modified. Therefore, this Court requires counsel to submit an attorney affirmation in the specific form and with the specific language originally mandated by her Honor’s Order of October 20, 2010.

In this Court’s November 1, 2010 Order, the Court warned of potential sanctions, pursuant to 22 NYCRR §130-1, if a party submits an application “without proper regard for the applicable statutes, case law and Court Rules.” Indeed, although the plaintiff’s December 13, 2010 attorney affirmation does not include certain language mandated by Judge Pfau’s October 2010 Order, the affirmation does, nevertheless, state at paragraph 4 that counsel is “aware of [her] obligations under New York Rules of Professional Conduct (22 NYCRR Part 1200) and 22 NYCRR Part 130.” With regard to sanctions, 22 NYCRR §130-1.1 states, in pertinent part that:

(a) . . . [T]he court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Part. . . .

(b) The court, as appropriate, may . . . impose such financial sanctions against either an attorney or a party to the litigation or against both. Where the . . . sanction is against an attorney, it may be against the attorney personally or upon a partnership, [or] firm . . . that has appeared as attorney of record. The . . . sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.

(c) For purposes of this Part, conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false. [*7]

. . . In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, or should have been apparent, or was brought to the attention of counsel or the party.

(d) An . . . imposition of sanctions may be made . . . upon the court’s own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case.

At the December 15, 2010 conference, plaintiff’s counsel represented to the Court that the plaintiff’s submitted application was, in fact, fully compliant with all applicable statutes, case law and Court Rules. Counsel then tendered to the Court Ms. Burke Tarab’s December 13, 2010 affirmation, which is purported to be compliant with the requirements of Judge Pfau’s Order of October 20, 2010. In counsel’s affirmation, she identifies Robert D. Repass, plaintiff’s Senior Vice President, as the representative with whom she communicated on December 10, 2010 for purposes of executing her affirmation.

According to paragraph 2 of the affirmation, Mr. Repass reportedly informed Ms. Tarab that he “personally reviewed plaintiff’s documents and records relating to this case for factual accuracy.” He also allegedly “confirmed the factual allegations set forth in the Complaint and any supporting affirmations filed with the court, as well as the accuracy of the notarizations contained in the supporting documents (Plaintiff’s Affidavit[s]) filed therewith.” Neither the proofs submitted in support of the order of reference, nor the mandatory attorney affirmation are sufficient to grant an order of reference.

Based on the foregoing, the plaintiff’s application for an order of reference is denied. The nature of the proofs provided by the plaintiff, from all sources, compels the Court to order hearing in accordance with 22 NYCRR §130-1 to determine if the conduct undertaken by the plaintiff and/or plaintiff’s counsel was “frivolous” as defined in 22 NYCRR §130-1.1(c) and what, if any, sanction should be imposed.

This constitutes the Order of the Court.

Dated:February 17, 2011

PETER H. MAYER, J.S.C.

[ipaper docId=49755154 access_key=key-1nqux6te6r5mleytllbl height=600 width=600 /]

Supreme Court, Kings County

NYCTL 2008-A Trust AND THE BANK OF NEW YORK AS COLLATERAL AGENT AND CUSTODIAN, Plaintiffs,

against

Estate of Locksley Holas a/k/a Lockaley Holas, et. al., Defendants

10815/09

Plaintiff

Josef Abt

Windels Marx Lane & Mittendorf, LLP

NY, NY

Arthur M. Schack, J.

In this tax lien certificate foreclosure action, plaintiffs, NYCTL 1998-1 TRUST AND THE BANK OF NEW YORK AS COLLATERAL AGENT AND CUSTODIAN (THE TRUST), moved on September 9, 2009 for an order of reference and related relief for the premises located at 856 Hancock Street, Brooklyn, New York (Block 1490, Lot 33, County of Kings). In my May 3, 2010 decision and order, with respect to the motion for an order of reference and related relief, I held:

The affidavit submitted in support of this application . . . was not

executed by an officer of . . . THE TRUST, or someone with a power

of attorney from plaintiffs. Leave is granted to plaintiffs to renew their

application, within sixty (60) days of this decision and order, for an

order to appoint a referee to compute and amend the caption upon

plaintiffs’ presentation to the Court of its compliance with the statutory requirements of CPLR § 3215 (f), with “an affidavit of facts” executed

by someone who is an officer of THE TRUST or someone who has a

valid power of attorney from THE TRUST. [*2]

Further, I noted that the affidavit of merit was submitted by one Hillary Leonard, who stated that “I am the Authorized Signatory of PLYMOUTH PARK TAX SERVICES, LLC, servicing agent for plaintiffs in the within action.” Plaintiffs failed to provide the Court with any “power of attorney authorizing PLYMOUTH PARK TAX SERVICES, LLC to go forward with the instant foreclosure action. Therefore, the proposed order for the appointment of a referee to compute and amend the caption must be denied without prejudice.”

Moreover, I observed that:

The plaintiffs have failed to meet the clear requirements of

CPLR § 3215 (f) for a default judgment.

On any application for judgment by default, the applicant

shall file proof of service of the summons and the complaint, or

a summons and notice served pursuant to subdivision (b) of rule

305 or subdivision (a) of rule 316 of this chapter, and proof of

the facts constituting the claim, the default and the amount due

by affidavit made by the party . . . Where a verified complaint has

been served, it may be used as the affidavit of the facts constituting

the claim and the amount due; in such case, an affidavit as to the

default shall be made by the party or the party’s attorney. [Emphasis

added].

Plaintiffs’ counsel, Windels Marx Lane & Mittendorf, LLP, never submitted a

renewed motion for an order of reference to the Court. Then, on February 14, 2011, the Court received a letter, dated February 9, 2011, from Windels Marx Lane & Mittendorf, LLP, in which plaintiffs’ counsel stated that the September 9, 2009 motion “for the appointment of a Referee to compute was submitted to the Court and is currently pending before your Honor for determination [Emphasis added]. I respectfully request that Plaintiffs’ ex-parte application be withdrawn at this time without prejudice to renew at a later date.”

Today is two hundred and ninety (290) days, more than three-quarters of a year, since I issued my May 3, 2010 order giving Windels Marx Lane & Mittendorf, LLP sixty (60) days to renew their motion for an order of reference and related relief. I have not yet received a renewed motion for an order of reference with the requested affidavit of merit “by someone who is an officer of THE TRUST or someone who has a valid power of attorney from THE TRUST.”

Further, it is my policy to mail copies of my orders to litigants’ counsel. Even if Windels Marx Lane & Mittendorf, LLP, for whatever reason, did not receive by U.S. Mail a copy of the May 3, 2010 order, it must to be suffering from corporate amnesia. The May 3, 2010 order was properly filed with Kings County Clerk. Plaintiffs’ counsel should have ascertained that I issued my May 3, 2010 order giving them sixty (60) days to renew their motion for an order of reference and related relief with proper documentation. Therefore, I grant the request of Windels Marx Lane & Mittendorf, LLP that their “application be withdrawn at this time.” However, for violation of my May 3, 2010 order, the instant tax lien foreclosure action is dismissed with prejudice and the notice of pendency is cancelled and discharged. The Court cannot countenance utter disregard of a court-ordered deadline.

The failure of plaintiffs’ counsel, Windels Marx Lane & Mittendorf, LLP, to comply [*3]with my May 3, 2010 order demonstrates delinquent conduct by Windels Marx Lane & Mittendorf, LLP. This mandates the dismissal with prejudice of the instant action. Failure to comply with court-ordered time frames must be taken seriously. It cannot be ignored. There are consequences for ignoring court orders. Recently, on December 16, 2010, the Court of Appeals, in Gibbs v St. Barnabas Hosp. (16 NY3d 74; 2010 NY Slip Op 09198), instructed, at *5:

As this Court has repeatedly emphasized, our court system is

dependent on all parties engaged in litigation abiding by the rules of

proper practice (see e.g. Brill v City of New York, 2 NY3d 748 [2004];

Kihl v Pfeffer, 94 NY2d 118 [1999]). The failure to comply with

deadlines not only impairs the efficient functioning of the courts and

the adjudication of claims, but it places jurists unnecessarily in the

position of having to order enforcement remedies to respond to the

delinquent conduct of members of the bar, often to the detriment of

the litigants they represent. Chronic noncompliance with deadlines

breeds disrespect for the dictates of the Civil Practice Law and Rules

and a culture in which cases can linger for years without resolution.

Furthermore, those lawyers who engage their best efforts to comply

with practice rules are also effectively penalized because they must

somehow explain to their clients why they cannot secure timely

responses from recalcitrant adversaries, which leads to the erosion

of their attorney-client relationships as well. For these reasons, it

is important to adhere to the position we declared a decade ago that

“[i]f the credibility of court orders and the integrity of our judicial

system are to be maintained, a litigant cannot ignore court orders

with impunity [Emphasis added].” (Kihl, 94 NY2d at 123).

“Litigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated (see Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 748 [2004]; Kihl v Pfeffer, 94 NY2d 118 [1999]) [Emphasis added].” (Andrea v Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects, P.C., 5 NY3d 514, 521 [2005]). “As we made clear in Brill, and underscore here, statutory time frames —like court-order time frames (see Kihl v Pfeffer, 94 NY2d 118 [1999]) — are not options, they are requirements, to be taken seriously by the parties. Too many pages of the Reports, and hours of the courts,

are taken up with deadlines that are simply ignored [Emphasis added].” (Miceli, 3 NY3d at 726-726). [*4]

Further, the dismissal of the instant foreclosure action requires the cancellation of the notice of pendency. CPLR § 6501 provides that the filing of a notice of pendency against a property is to give constructive notice to any purchaser of real property or encumbrancer against real property of an action that “would affect the title to, or the possession, use or enjoyment of real property, except in a summary proceeding brought to recover the possession of real property.” The Court of Appeals, in 5308 Realty Corp. v O & Y Equity Corp. (64 NY2d 313, 319 [1984]), commented that “[t]he purpose of the doctrine was to assure that a court retained its ability to effect justice by preserving its power over the property, regardless of whether a purchaser had any notice of the pending suit,” and, at 320, that “the statutory scheme permits a party to effectively retard the alienability of real property without any prior judicial review.”

CPLR § 6514 (a) provides for the mandatory cancellation of a notice of pendency by:

The Court,upon motion of any person aggrieved and upon such

notice as it may require, shall direct any county clerk to cancel

a notice of pendency, if service of a summons has not been completed

within the time limited by section 6512; or if the action has been

settled, discontinued or abated; or if the time to appeal from a final

judgment against the plaintiff has expired; or if enforcement of a

final judgment against the plaintiff has not been stayed pursuant

to section 551. [emphasis added]

The plain meaning of the word “abated,” as used in CPLR § 6514 (a) is the ending of an action. “Abatement” is defined as “the act of eliminating or nullifying.” (Black’s Law Dictionary 3 [7th ed 1999]). “An action which has been abated is dead, and any further enforcement of the cause of action requires the bringing of a new action, provided that a cause of action remains (2A Carmody-Wait 2d § 11.1).” (Nastasi v Nastasi, 26 AD3d 32, 40 [2d Dept 2005]). Further, Nastasi at 36, held that the “[c]ancellation of a notice of pendency can be granted in the exercise of the inherent power of the court where its filing fails to comply with CPLR § 6501 (see 5303 Realty Corp. v O & Y Equity Corp., supra at 320-321; Rose v Montt Assets, 250 AD2d 451, 451-452 [1d Dept 1998]; Siegel, NY Prac § 336 [4th ed]).” Thus, the dismissal of the instant complaint must result in the mandatory cancellation of plaintiffs’ notice of pendency against the subject property “in the exercise of the inherent power of the court.”

Accordingly, it is

ORDERED, that the instant action, Index Number 10815/09, is dismissed with

prejudice; and it is further

ORDERED that the Notice of Pendency in this action, filed with the Kings

County Clerk on May 1, 2009, by plaintiffs, NYCTL 1998-1 TRUST AND THE BANK OF NEW YORK AS COLLATERAL AGENT AND CUSTODIAN, to foreclose on a tax lien certificate for real property located at 856 Hancock Street, Brooklyn, New York (Block 1490, Lot 33, County of Kings), is cancelled and discharged.

This constitutes the Decision and Order of the Court. [*5]

ENTER

________________________________

HON. ARTHUR M. SCHACK

J. S. C.

[ipaper docId=49548530 access_key=key-ffjul07zknc2z09yub8 height=600 width=600 /]

Wells Fargo Bank, N.A., Plaintiff,

against

David Zelouf, et. al., Defendants.

17524/09

Plaintiff

Michael Joblonski, Esq.

Steven J. Baum, PC

Buffalo, NY

Defendant

The defendant did not answer.

Arthur M. Schack, J.

In this foreclosure action, plaintiff, WELLS FARGO, N.A. (WELLS FARGO), moved for summary judgment and an order of reference and related relief for the premises located at 14 Stockholm Street, Brooklyn, New York (Block 3253, Lot 13, County of Kings). The Court received a notice of withdrawal of the instant motion, dated February 18, 2010, from plaintiff’s counsel. There was no valid explanation or reason given by plaintiff’s counsel for his request to withdraw the motion.

Further, plaintiff’s counsel states in his notice of withdrawal, “[t]he Plaintiff will not be discontinuing the above referenced action.” Moreover, in his cover letter to myself, plaintiff’s counsel states that “[t]he law firm of Steven J. Baum, P.C. and the attorneys whom it employs are debt collectors who are attempting to collect a debt. Any information obtained by them will be used for that purpose.” Since this statement was in a cover letter to me and does not appear to be preprinted on the letterhead of the Baum firm, the Court would like to know what debt it [*2]personally owes to the Baum firm or its clients? This statement borders upon frivolous conduct, in violation of 22 NYCRR § 130-1.1. Was it made to cause annoyance or alarm to the Court? Was it made to waste judicial resources? Rather than answer the above rhetorical questions, counsel for plaintiff is directed never to place such a foolish statement in a cover letter to this Court. If this occurs again, the firm of Steven J. Baum, P.C. is on notice that this Court will have the firm and the attorney who wrote this nonsensical statement appear to explain why the firm and the individual attorney should not be sanctioned for frivolous conduct.

With respect to the request of plaintiff’s counsel to withdraw the instant motion for summary judgment and an order of reference, the Court grants the request to withdraw the motion. However, since plaintiff is not discontinuing the instant foreclosure action, the Court, to prevent the waste of judicial resources, dismisses the instant foreclosure action without prejudice. If plaintiff’s counsel chooses to renew the instant motion and restore the instant case, plaintiff’s counsel must comply with the new Rule, promulgated by the Chief Administrative Judge on October 20, 2010, requiring an affirmation by plaintiff’s counsel that he communicated on a specific date with a named representative of plaintiff WELLS FARGO who informed him that he or she:

(a) has personally reviewed plaintiff’s documents and records relating

to this case for factual accuracy; and (b) confirmed the factual

accuracy of the allegations set forth in the Complaint and any

supporting affirmations filed with the Court as well as the accuracy

of the notarizations contained in the supporting documents filed

therewith.

Further, plaintiff’s counsel, based upon his or her communication with plaintiff’s representative or representatives, “as well as upon my own inspection and reasonable inquiry under the circumstances, . . . affirm that, to the best of my knowledge, information, and belief, the Summons, Complaint and other papers filed or submitted to the Court in this matter contain no false statements of fact or law.”

Counsel is reminded that the new standard Court affirmation form states that “I am aware of my obligations under New York Rules of Professional Conduct (22 NYCRR Part 1200) and 22 NYCRR Part 130.” These Parts deal with disciplinary standards and sanctions for frivolous conduct.

Real Property Actions and Proceedings Law (RPAPL) § 1321 allows the Court in a foreclosure action, upon the default of the defendant or defendant’s admission of mortgage payment arrears, to appoint a referee “to compute the amount due to the plaintiff.” In the instant action, plaintiff WELLS FARGO’s application for an order of reference is a preliminary step to obtaining a default judgment of foreclosure and sale against defendant ZELOUF. (Home Sav. of Am., F.A. v Gkanios, 230 AD2d 770 [2d Dept 1996]). Plaintiff’s request to withdraw its motion is granted. However, to allow this action to continue without seeking the ultimate purpose of a foreclosure action, to obtain a judgment of foreclosure and sale, makes a mockery of and wastes judicial resources. Continuing the instant action without moving for a judgment of foreclosure and sale is the judicial equivalent of a “timeout,” and granting a “timeout” to plaintiff WELLS FARGO is a waste of judicial resources. Therefore, the instant action is dismissed without [*3]prejudice.

Further, the dismissal of the instant foreclosure action requires the cancellation of the notice of pendency. CPLR § 6501 provides that the filing of a notice of pendency against a property is to give constructive notice to any purchaser of real property or encumbrancer against real property of an action that “would affect the title to, or the possession, use or enjoyment of real property, except in a summary proceeding brought to recover the possession of real property.” The Court of Appeals, in 5308 Realty Corp. v O & Y Equity Corp. (64 NY2d 313, 319 [1984]), commented that “[t]he purpose of the doctrine was to assure that a court retained its ability to effect justice by preserving its power over the property, regardless of whether a purchaser had any notice of the pending suit,” and, at 320, that “the statutory scheme permits a party to effectively retard the alienability of real property without any prior judicial review.”

CPLR § 6514 (a) provides for the mandatory cancellation of a notice of pendency by:

The Court,upon motion of any person aggrieved and upon such

notice as it may require, shall direct any county clerk to cancel

a notice of pendency, if service of a summons has not been completed

within the time limited by section 6512; or if the action has been

settled, discontinued or abated; or if the time to appeal from a final

judgment against the plaintiff has expired; or if enforcement of a

final judgment against the plaintiff has not been stayed pursuant

to section 551. [emphasis added]

The plain meaning of the word “abated,” as used in CPLR § 6514 (a) is the ending of an action. “Abatement” is defined as “the act of eliminating or nullifying.” (Black’s Law Dictionary 3 [7th ed 1999]). “An action which has been abated is dead, and any further enforcement of the cause of action requires the bringing of a new action, provided that a cause of action remains (2A Carmody-Wait 2d § 11.1).” (Nastasi v Nastasi, 26 AD3d 32, 40 [2d Dept 2005]). Further, Nastasi at 36, held that the “[c]ancellation of a notice of pendency can be granted in the exercise of the inherent power of the court where its filing fails to comply with CPLR § 6501 (see 5303 Realty Corp. v O & Y Equity Corp., supra at 320-321; Rose v Montt Assets, 250 AD2d 451, 451-452 [1d Dept 1998]; Siegel, NY Prac § 336 [4th ed]).” Thus, the dismissal of the instant complaint must result in the mandatory cancellation of plaintiff WELLS FARGO’s notice of pendency against the subject property “in the exercise of the inherent power of the court.”

Last, if plaintiff WELLS FARGO’s counsel moves to restore the instant action and motion, plaintiff’s counsel must comply with the new filing requirement to submit, under penalties of perjury, an affirmation that he or she has taken reasonable steps, including inquiring of plaintiff WELLS FARGO and reviewing all papers, to verify the accuracy of the submitted documents in support of the instant foreclosure action. According to the October 20, 2010 Office of Court Administration press release about the new filing requirement, Chief Judge Lippman said:

We cannot allow the courts in New York State to stand by idly and

be party to what we now know is a deeply flawed process, especially

when that process involves basic human needs — such as a family home — [*4]

during this period of economic crisis. This new filing requirement will

play a vital role in ensuring that the documents judges rely on will be

thoroughly examined, accurate, and error-free before any judge is asked

to take the drastic step of foreclosure.

(See Gretchen Morgenson and Andrew Martin, Big Legal Clash on Foreclosure is Taking Shape, New York Times, Oct. 21, 2010; Andrew Keshner, New Court Rules Says Attorneys Must Verify Foreclosure Papers, NYLJ, Oct. 21, 2010).

Accordingly, it is

ORDERED, that the request of plaintiff, WELLS FARGO BANK, N. A., to withdraw its motion for an order of reference, for the premises located at 14 Stockholm Street, Brooklyn, New York (Block 3253, Lot 13, County of Kings), is granted; and it is further

ORDERED, that the instant action, Index Number 17524/09, is dismissed without prejudice; and it is further

ORDERED, that the notice of pendency in the instant action, filed with the Kings County Clerk on July 14, 2009, by plaintiff, WELLS FARGO BANK, N. A., to foreclose a mortgage for real property located at 14 Stockholm Street, Brooklyn, New York (Block 3253, Lot 13, County of Kings), is cancelled; and it is further

ORDERED, that if plaintiff, WELLS FARGO BANK, N.A., moves to restore the instant foreclosure action and motion for an order of reference for real property located at 14 Stockholm Street, Brooklyn, New York (Block 3253, Lot 13, County of Kings, counsel for plaintiff must comply with the new Court filing requirement, announced by Chief Judge Jonathan Lippman on October 20, 2010, and ordered by Chief Administrative Judge Ann T. Pfau on October 20, 2010, by submitting an affirmation, using the new standard Court form, pursuant to CPLR Rule 2106 and under the penalties of perjury, that counsel for plaintiff, WELLS FARGO BANK, N. A.: has personally reviewed plaintiff’s documents and records in the instant action; confirms the factual accuracy of plaintiff’s court filings; and, confirms the accuracy of the notarizations in plaintiff’s documents.

This constitutes the Decision and Order of the Court.

ENTER

________________________________
HON. ARTHUR M. SCHACK

J. S. C.

[ipaper docId=49446866 access_key=key-f0mlrghdhkwuefk3jei height=600 width=600 /]

SFF took a challenge and wanted to see if there were any cases in past years identical to what is plaguing the court systems today. Sure enough the following cases below are ONLY a fraction of what was in store. Just imagine if someone was paying any attention to these cases, perhaps something could have changed the way the lending industry used an electronic device that without a doubt bifurcated the mortgage (deed of trust) from the note!

Same players, same tricks, years later…

Excerpt from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC. v. DUVAL 2004

The moving papers reflect that the plaintiff is not the owner of the subject mortgage nor the note for which said mortgage was given as security. Nor is the plaintiff the lender named in the note and mortgage attached the moving papers. In addition, there is no evidence that the plaintiff was the owner of the note and mortgage at the time this action was commenced by reason of assignment or otherwise. The failure to establish the plaintiff’s ownership of the note and mortgage at the time of the commencement of this action precludes the granting of the instant motion since the plaintiff is unable to establish “the facts constituting the claim(s)” against the known defendants as required by CPLR 3215(f) (Kluge u Fugaqy, 145 AD2d 537,53 6 NYS2d 92; cJ, Federal National Mortgage Association v Yonkelsone, 303 AD2d 546,755 NYS2d 730).

2004

AURORA v. FITZGERALD 2004

MERS v. BAXTER 2004

MERS v. DUVAL 2004

MERS v. EDWARDS 2004

MERS v. PALERMO 2004

MERS v. PARKER 2004

MERS v. POBLETE 2004

MERS v. SCHOENSTER 2004

Excerpt from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC. v. DELZATTO 2005

The moving papers reflect that the above named plaintiff, a/k/a MERS, is not the owner of the subject mortgage nor the note for which said mortgage was given as security. The plaintiff was not the named as the lender in either the note or mortgagee sought to be foreclosed herein. Instead, the plaintiff is identified in the mortgage indenture as a “separate corporation acting solely as nominee for the Lender and Lender’s successors and assigns” and “FOR PURPOSES OF RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD”

Nor is there any proof that the plaintiff was the owner of the note and mortgage at the time this action was commenced by reason of assignment or otherwise. The failure to establish the plaintiffs ownership of the note and mortgage at the time of the commencement of this action precludes the granting of the instant motion since the plaintiff is unable to establish “the facts constituting the claim(s)” against the defaulting defendants as required by CPLR 3215(f) (Kluge v Fugazy, 145 AD2d 5 37,536 NYS2d 92; a:, Federal National MortgageAssociation v Youkelsone, 303 AD2d 546,755 NYS2d 730).

2005

Aurora v. Fitzgerald 2005

MERS v. DELZATTO 2005

MERS v. GARCIA 2005

MERS v. ROMERO 2005

MERS v. Trapani 2005

Excerpt from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC. v. RAMDOOLAR 2006

As indicated in a prior order dated December 6, 2005 (Burke, J.), the plaintiff, Mortgage Electronic Registration Systems, Inc., was not the owner of the note and mortgage at the titme this action was commenced. The court thus found that the plaintiffs complaint failed to state cognizable claims against the defendants (Kluge v Fugazy, 145 AD2d 537, 536 NYS2d 92; see, also, Katz v East-Ville Realty Company, 249 AD2d 243, 672 NYS2d 308) and that the plaintiff was thus not entitled to the default judgment it demanded on is prior application (CPLR 3215[f1).

On the instant application, the plaintiff purportedly assigned its interest in this subject note and mortgage to an entity known as HSBC Bank USA, National Association as Trustee for MLMI Series 2005-WMC. Since, however, the plaintiff, Mortgage Electronic Services, Inc. was not the owner of the note and mortgage at the time of the purported assignment, the named assignee, HSBC Bank USA, National Association as Trustee for MLMI Series 2005-WMC, acquired no title thereto. The plaintiffs demand for substitution of said entity as the plaintiff in this action is thus denied.

In addition, a substitution of a party plaintiff, such as that demanded here, may not be accomplished by a mere caption amendment. Rather, the substitution of a new party plaintiff would require its participation by its consent andor its formal joinder in this action as contemplated by CPLR 1003 and the filing of an amended complaint by the proposed new plaintiff wherein it alleges facts which constitute cognizable claims against the defendants. Since there was no joinder of the proposed new plaintiff, by consent or service, nor was that any demand by it for leave to serve an amended complaint, the substitution of HSBC Bank USA, National Association as Trustee for MLMI‘ Series 2005-WMC as a party plaintiff would have been precluded even if a valid and recorded assignment by the owner of the note and mortgage had been attached to the moving papers.

2006

MERS v. BIAS 2006

MERS v. Hatwood 2006

MERS v. LONG 2006

MERS v. MORRIS 2006

MERS v. RAMDOOLAR 2006

MERS v. SANFILIPPO 2006

MERS v. WELLS 2006

Excerpt from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC. v. WILLIAMS 2007

The claimant, J.P. Morgan Chase Bank as Trustee for the Home Equity Trust Series 2004- 3, purports to be the assignee, pursuant to a corporate assignment of mortgage/deed of trust executld by Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for Decision One Mortgage Company, LLC, of a certain mortgage executed by defendant-mortgagor JULIA WILLIAMS and delivered to MERS as nominee for Intervale Mortgage Corp., which mortgage is alleged to be a subordinate lien to the mortgage previously foreclosed in this action. The claimant’s submissions do not establish the chain of assignments from the original mortgagee, Intervale Mortgage Corp., and the proofs submitted by the claimant are insufficient to establish that it .s the current owner and holder of the note and mortgage that purportedly entitle it to the surplus monics deposited with the Suffolk County Treasurer. The Court notes that even if MERS has authority to assign the subject mortgage (which is not apparent from the submissions), there is no prod2fof its authority to assign the underlying note, which it apparently does not own. Since a mortgage may not be separated from the underlying debt (Merritt v. Bartholick, 36 N.Y. 44,45, 34 HOW. Pr. 129 (1 867), the issue of the claimant’s standing to claim the surplus monies is not established by the record before the Court.

2007

EMC v. WINK-THILMAN 2007

MERS v. WILLIAMS 2007

U.S. BANK v. MOSS 2007

WELLS FARGO v. GISONDA 2007

WELLS FARGO v. GOLDEN 2007

WHOA! Don’t stop here the image below will take you to 2008, 2009, 2010 and 2011 cases…

NEW YORK SUPREME COURT – QUEENS COUNTY

EMC MORTGAGE CORP.,

v.

JEANETTA TOUSSAINT

excerpt:

In order to commence a foreclosure action, plaintiff must have a legal and equitable interest in the subject mortgage (Wells Fargo Bank v Machine 69 AD3rd 204). Here, the subject mortgage was not assigned until October 2, 2007, which was after the action was commenced on October 1, 2007. A retroactive assignment to September 25, 2007 cannot be used to confer standing upon the foreclosure action commenced prior to the execution of the assignment. (Countrywide Home Loans v Giess 68 AD3rd 709).

<SNIP>

The plaintiff, not being the holder of the assignment at the time the action was commenced, it did not have standing to commence this action. Accordingly, the Court vacates the Judgment of Foreclosure and Sale, which the County Clerks minutes indicate was executed on April 9, 2009 and dismisses the complaint.

Continue below…

[ipaper docId=49231983 access_key=key-2aughts7w0vnizchyf7y height=600 width=600 /]

WELLS FARGO BANK, NA

against

AINSLEY W. DALRYMPLE, ALEX SMITH;
TISHURA SMITH

excerpt:

There was no testimony whether the process server ever tried to check the mortgage document which must have included detailed personal information of DALRYMPLE. There was no evidence showing sincere communication between the plaintiff and the process server to find out the actual dwellng place of DALRYMPLE who testified that he made numerous notifications to the plaintiff about his residence since his default in the mortgage payment. The process server did not testify about any effort to find out DALRYMPLE’ s place of employment and to serve him there. The inquiry by the process server to Alex Smith at 96 Meadowbrook Road or to an unidentified neighbor of 184 Beverly Road is no more than a check of D ALR YMPLE’ s residence. The record in the DMV or Post Offce should be the beginning of the search for the whereabout of defendant but not the final answer to the inquiry of the address for the purpose of the nail and mail service. The Court determines that the due diligence requirement to serve under CPLR ~308 (1) or (2) is not satisfied.

The nail and mail service can be made by affixing the summons and complaint to the door of either “the actual place of business, dwellng place or usual place of abode” of the defendant. See CPLR ~308( 4). The process server testified that he affxed the summons and complaint at the premise of 184 Beverly Road and mailed the same to the last known address of DALRYMPLE. However, DALRYMPLE testified that he did not live there but lived at 96 Meadowbrook Road at the time of service. Plaintiff did not offer any evidence or testimony showing that DALRYMPLE actually lived at 184 Beverly Road at the time of service. The alleged statement by an unidentified neighbor of 184 Beverly Road is hearsay and lacks credibility without any information for identification. The reports from DMV or Post Office can be useful as the last known residence but not as the address of actual place of business, dwellng place or usual place of abode. The Cour determines that the purported nail and mail service on DALRYMPLE did not satisfy the statutory requirement under CPLR ~308( 4).

Accordingly, it is
ORDERED, that DALRYMPLE’ S motion to vacate the default judgment is granted.

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Excerpts:

Upon resolution of the jurisdictional issue raised by Murphy, he also seeks to add Luciano as a party defendant  because of his alleged “bona fide purchase” of the Millstone Road premises from the plaintiff after foreclosure. The application is granted and Luciano is added as a party defendant to this action because he is a necessary party in order for the Court to grant the proper and necessary relief in this lawsuit. CPLR §1001 provides that persons “who might be inequitably affected by a judgment” shall be made a party. Clearly, Luciano as the present owner of the Millstone Road premises may be “inequitably affected” by the jurisdiction question to be decided. Further, the events surrounding the dates of contract and sale of this property and the sale price are all issues requiring Court scrutiny as to Luciano’s claim to be a “bona fide purchaser” of the property for value.

Here, the closing on the sale of the Millstone Road premises occurred just 3 days prior to Murphy’s order to show cause seeking injunctive relief asserting the lack of knowledge of and Court jurisdiction over this foreclosure action. Obviously, any conversations, discussions, settlement negotiations or other communications between the plaintiff, Murphy and possibly Luciano concerning Murphy’s prospective actions as to this foreclosure action in which Luciano claims no knowledge as well as possible “bad faith” on the part of plaintiff are all issues which the Court needs to explore to assure the foreclosure process was fair and equitable.

Real Property Law §266 provides an innocent “bona fide purchaser” for value is protected in his/her title to property unless he/she had previous notice of the alleged fraud by the seller. See, Karan v. Hoskins. 22 AD3d 638, 803 NYS2d 666 (2nd Dept. 2005); Barnes v. West, 29 Misc3d 1230(A), WL 4941987 (2010). In the event, the Court finds that jurisdiction was not acquired over Murphy, Murphy’s remedy is to be put back into possession of the Millstone Road premises unless it has been purchased by a “bona fide” innocent and good faith purchaser, in which case Murphy’s remedy is limited to damages against the plaintiff.

<SNIP>

Finally, Murphy cannot be charged with equitable estoppel as his actions through his attorney have all been to avoid the very sale which the plaintiff conducted to Luciano. The Court in Bank of America, NA v 414 Midland Ave. Associates, LLC, AD3d ,911 NYS2d 157 (2nd Dept 2010) noted:

“Where an owner knows of a defect in title and fails to address it,
laches does not apply unless the facts are sufficient to constitute equitable
estoppel (see, Krakerv. Roll, 100 AD2d 424,433,474 NYS2d 527;
Washington Temple Church of God in Christ, Inc. v. Global Props &
Assoc., Inc., 15 Misc3d 1142[A], 2007 N.Y. Slip Op 51114[U], 2007 WL
1558884, aff’d. 55 AD2d 727, 865 NYS2d 641). Equitable estoppel arises when
a property owner stands by without objection while an opposing party asserts an
ownership interest in the property and incurs expense in reliance on that belief
(see, Andrews v. Cohen, 221 NY 148, 153, 116 NE 862). The property owner
must ‘inexcusably’ delay in asserting a claim to property knowing that ‘the
opposing party has changed his position to irreversible detriment’ ( Orange &
Rockland Utils v. Philwold Estates, 70 AD2d 338, 343,421 NYS2d 640,
mod. on other grounds 52 NY2d 253, 437 NYS2d 291, 418 NE2d 1310.”

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excerpt:

may be heard why and Order should not be made allowing Plaintiff the following relief:

1. Declaring the Mortgage dated March 2,2005 between Darie Edmundson and Fremont Bank and its’ assignment to Defendant dated May 1,2006 placing a lien upon 522 Bainbridge Street Brooklyn, N.Y. Block 15 10 Lot 20
2. Directing the Clerk of the County of Kings to expunge said mortgage and it’s assignment from the Kings County records.

SUFFICIENT CAUSE APPEARING HEREIN, Let personal service of this Order and the papers upon which it is based may be made to Steven J. Baum P.C.,

Continue reading below…

[ipaper docId=47973270 access_key=key-9l63raglbt4dj7o26y6 height=600 width=600 /]

According to records:
Attorney/Firm For Defendant: STEVEN J. BAUM, P.C.

Attorney Type: Attorney Of Record Atty. Status: Active

220 NORTHPOINTE PKWY SUITE G
AMHERST, NEW YORK 14228 716-204-2400

excerpt…

NOW, IT IS ORDERED THAT EXECUTION OF ANY PUBLIC SHARES OF PLAINTIFF’S PROPERTY, LOCATED AT 135 OCEAN PARKWAY, UNIT 16-D, BROOKLYN, NEW YORK, 11218, SHALL BE STAYED PENDING THE HEARING OF THIS MOTION, AND SPECIFICALLY THAT DEFENDANT HSBC BANK USA, N.A. BE STAYED FROM EXECUTING A PUBLIC SALE OF PLAINTIFF’S SHARE OF STOCK ON JANUARY 13, 2011 at 2:OO P.M.

[ipaper docId=47617748 access_key=key-1lsldoed8t45dhekgkcl height=600 width=600 /]

Suit Seeks $30 Million in Compensatory and $90 Million in Punitive Damages from Goldman
Sachs Over Its Role in Developing and Marketing the Synthetic CDO “ABACUS”

New York, NY — January 6, 2011 — ACA Financial Guaranty Corporation (ACA), a monoline
bond insurance company now operating in run off, filed suit today against Goldman Sachs & Co.
(Goldman Sachs) for fraud and unjust enrichment in connection with a synthetic collateralized
debt obligation (CDO) called ABACUS 2007-AC1 (ABACUS), which Goldman Sachs
developed and sold on behalf of its hedge fund client Paulson & Co. Inc. (Paulson) in 2007.
ACA was misled by Goldman’s fraudulent activities and is seeking $30 million in compensatory
and $90 million in punitive damages.

According to the complaint, filed in the Commercial Division of the Supreme Court of the State
of New York, New York County, this fraud action arises from the egregious conduct of Goldman
Sachs in developing and marketing ABACUS based on a portfolio of investment securities
selected largely by its hedge fund client, Paulson. Goldman Sachs’s scheme was to design
ABACUS to fail, so that Paulson could reap huge profits by shorting the portfolio and Goldman
Sachs could reap huge investment banking fees. Goldman Sachs fraudulently induced ACA to
take a long position in and provide guaranty insurance for ABACUS. Goldman Sachs did so by
deceiving ACA into believing that Paulson also was to be a long investor in ABACUS. In fact,
as Goldman Sachs knew, Paulson intended instead to take an enormous short position in
ABACUS, reaping nearly $1 billion when the portfolio failed.

As the complaint alleges: “ABACUS was worthless at the time Goldman Sachs marketed it to
ACA. Had Paulson’s true role as a short investor selecting the portfolio been known, neither
ACA nor anyone else would have taken a long position in it. Because of Goldman Sachs’s
deceit — which led ACA to reasonably believe that ABACUS was a valuable product selected by
the equity investor with identical objectives — ACA invested in what was in fact a worthless
product. Goldman Sachs engaged in this egregious misconduct notwithstanding that it expressly
acknowledged that its participation presented ‘reputational risk’ and after at least one other major
investment bank declined to participate for that very reason.” Goldman Sachs has since settled
SEC civil charges arising out of this fraudulent conduct, agreeing to pay a $550 million fine.

ACA is represented by Marc E. Kasowitz of Kasowitz, Benson, Torres & Friedman LLP.

About ACA Financial Guaranty Corporation
Founded in 1997, ACA Financial Guaranty Corporation is a monoline bond insurance company
licensed in 50 states and 5 territories and regulated by the Maryland Insurance Administration.
On August 8, 2008, the Company and counterparties to its structured finance products reached an
agreement on a restructuring plan for ACA. The plan, approved by the Maryland Insurance
Administration, provided for settlement of the structured finance obligations and protection for
ACA’s municipal policyholders. ACA will operate as a runoff insurance company and focus on
actively monitoring its remaining insured municipal obligations. ACA’s portfolio consists of
approximately 700 policies guarantying timely payment of principal and interest on more than $7
billion of generally high yield municipal bonds.

Contact:
Elliot Sloane
212-446-1860
esloane@sloanepr.com

Whit Clay
212-446-1864
wclay@sloanepr.com

Read Complaint Below…

[ipaper docId=47293635 access_key=key-2fjm9bz5nhmn9zoqo219 height=600 width=600 /]

Deutsche Bank National Trust Company, Plaintiff,

against

Auditya S. Ramotar, et al., Defendants.

1730/2009

For the Plaintiff: Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, by Kevin M. Butler, Esq., 20 West Main St., Bay Shore, New York 11706

For the Defendant: Bachu & Associates, by Darmin T. Bachu, Esq., 127-21 Liberty Ave., Richmond Hill, New York 11419

Charles J. Markey, J.

Excerpt:

Just recently, Massachusetts’s highest court, its Supreme Judicial Court, in U.S. Bank National Association v Ibanez, ___ NE2d ____, 2011 WL 2011 WL 38071 (Jan. 7, 2011) [6-0 decision, with majority and concurring opinions] unanimously held that two banks, U.S. Bank and Wells Fargo, failed to prove that they owned the mortgages when they foreclosed on the homes. See, id. The fact that the homeowners owed a lot of money on the mortgages was conceded in the Court’s ruling that the banks did not properly prove ownership.

[…]

Chief Judge Lippman has stated that the New York court system should not stand by idly, during a tough economic crisis, where the integrity of the determination of home ownership is at stake. See discussion in Washington Mutual Bank v Phillip, 20 Misc 3d [*3] 127[A], 2010 WL 4813782, 2010 NY Slip Op 52034[U] [Sup Ct Kings County 2010] [Schack, J.].

The practices of the plaintiff in this case, in not carefully evaluating the merits of each mortgage foreclosure case individually, has been criticized by the courts in: Deutsche Bank Nat. Trust Co. v Harris, 2008 WL 620756, 2008 NY Slip Op 30308[U] [Sup Ct Kings County 2008]; Deutsche Bank v Maraj, 18 Misc 3d 1123(A), 2008 WL 253926, 2008 NY Slip Op 50176 [Sup Ct Kings County 2008]; Deutsche Bank Nat. Trust Co. v Lewis, 14 Misc 3d 1201(A), 2006 WL 3593431, 2006 NY Slip Op 52368[U] [Sup Ct Suffolk County 2006], all of those decisions denying the plaintiff’s motion for relief without prejudice upon the submission of proper papers. See also discussion in Onewest Bank, F.S.B. v Drayton, 29 Misc 3d 1021 [Sup Ct Kings County 2010].

Continue below…

[ipaper docId=47155754 access_key=key-2o7wptvvwp0hghxppch9 height=600 width=600 /]

By ABIGAIL FIELD Posted 1:45 PM 01/12/11

On Oct. 20, New York state courts cracked down on robo-signing by ordering attorneys for foreclosing banks to swear that they had personally confirmed that the documents they are submitting are true and accurate. So far, attorneys haven’t been able to file many of the necessary affirmations.

Now, Judge Arthur M. Schack of Brooklyn has taken things a step further. Since the banks in cases before him have yet to begin complying with the new court rules, he has started throwing out foreclosure cases. But the question isn’t whether the banks will now choose to start complying with the rule: The question is: Will they even be able to?

“You Have to Obey Court Orders”

The first case Judge Schack tossed was Citibank, N.A. v. Murillo, which he dismissed with prejudice on Jan. 7, as the blog StopForeclosureFraud reported. The attorneys for Citibank (C) in that case were from the Steven Baum law firm, a foreclosure mill that has been sanctioned for its involvement in frivolous cases. If the Baum firm couldn’t file a timely affirmation in the Murillo case, how many of its other cases will it be able to file affirmations in?

Citibank, N.A. AS TRUSTEE FOR CERTIFICATEHOLDERS OF BEAR STEARNS ASSET BACKED SECURITIES TRUST 2007-SD3, ASSET BACKED CERTIFICATES, SERIES 2007-SD3, Plaintiff,

against

Santiago Murillo, et. al., Defendants

16214/08

Plaintiff: Megan B. Szeliga, Esq. and Jenneifer M. MCann, Esq., Steven J. Baum, P.C., Amherst, NY

Defendant: Paul E. Kerson, Esq., Leavitt, Kerson and Duane, Forest Hills, NY

Arthur M. Schack, J.

Excerpts:

The failure of plaintiff’s counsel, Steven J. Baum, P.C., to comply with two court orders, my November 4, 2010 order and Chief Administrative Judge Pfau’s October 20, 2010 order, demonstrates delinquent conduct by Steven J. Baum, P.C. This mandates the dismissal with prejudice of the instant action. Failure to comply with court-ordered time frames must be taken seriously. It cannot be ignored. There are consequences for ignoring court orders. Recently, on December 16, 2010, the Court of Appeals, in Gibbs v St. Barnabas Hosp. (___NY3d ___, 2010 NY Slip Op 09198), instructed, at *5:

<SNIP>

Conclusion

Accordingly, it is

ORDERED, that the instant action, Index Number 16214/08, is dismissed with

prejudice; and it is further

ORDERED that the Notice of Pendency in this action, filed with the Kings

County Clerk on June 5, 2008, by plaintiff, CITIBANK, N.A. AS TRUSTEE FOR

CERTIFICATEHOLDERS OF BEAR STEARNS ASSET BACKED SECURITIES TRUST 2007-SD3, ASSET BACKED CERTIFICATES, SERIES 2007-SD3 to foreclose on a mortgage for real property located at 41 Hill Street, Brooklyn, New York (Block 4165, Lot 40, County of Kings), is cancelled and discharged.

This constitutes the Decision and Order of the Court.

ENTER

________________________________
HON. ARTHUR M. SCHACK
J. S. C.

Continue reading decision below…

[ipaper docId=46662435 access_key=key-2mw2u6wniif9iaso5v7o height=600 width=600 /]

“You want to call it God, you can call it God,” Mr. Eng said. “You want to call it luck, you can call it luck. We just followed the system, and thank God the system worked.”

By JOHN SCHWARTZ
Published: January 10, 2011

With judges looking ever more critically at home foreclosures, they are reaching beyond the bankers to heap some of their most scorching criticism on the lawyers.

In numerous opinions, judges have accused lawyers of processing shoddy or even fabricated paperwork in foreclosure actions when representing the banks.

Judge Arthur M. Schack of New York State Supreme Court in Brooklyn has taken aim at an upstate lawyer, Steven J. Baum, referring to one filing as “incredible, outrageous, ludicrous and disingenuous.”

But New York judges are also trying to take the lead in fixing the mortgage mess by leaning on the lawyers. In November, a judge ordered Mr. Baum’s firm to pay nearly $20,000 in fines and costs related to papers that he said contained numerous “falsities.” The judge, Scott Fairgrieve of Nassau County District Court, wrote that “swearing to false statements reflects poorly on the profession as a whole.”

More broadly, the courts in New York State, along with Florida, have begun requiring that lawyers in foreclosure cases vouch for the accuracy of the documents they present, which prompted a protest from the New York bar. The requirement, which is being considered by courts in other states, could open lawyers to disciplinary actions that could harm or even end careers.

Below you will find  an archive of these cases PLUS many more…

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Helene Hamilton and Sheikh Bey,
Plaintiff( s)

-AGAINST

EMC MORTGAGE CORPORATION, AND
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., (“MERS”) AS NOMINEE FOR:
FIRST NATIONAL BANK OF ARIZONA,
Patricia M. Esdinsky, Esq., as an individual,
Janan Weeks, as an individual,

Excerpt:

WHY an Order should not be made and entered herein:

1. Granting Plaintiff Stay, restraining order and vacatur of foreclosure action due to
the lack of standing associated with Assignments of FRAUD. The Defendants did not have
assignment rights to foreclose on the property. The Defendants received foreclosure sale
subject to presentment of Assignments, but failed to address the fact that the Assignments must
precede the filing of the Complaint of the subject property. The Referee sale would not have
taken place if Plaintiffs had discovered this FRAUD earlier.

<SNIP>

ORDERED, that until such time as this matter is heard  that defendants, their agents or attorneys’ actions are restrained from moving forward from pursuing further foreclosure proceedings under Index No. 93 19/03

Read the complete order below…

[ipaper docId=46420291 access_key=key-1j970so6de2vk6ge5u20 height=600 width=600 /]

2008 NY Slip Op 08705

GMAC MORTGAGE CORPORATION, d/b/a DiTECH.COM, appellant,

v.

ROBERT CHAN, ETC., ET AL., respondents, et al., defendants.

2007-11812, 2008-09115.

Appellate Division of the Supreme Court of New York, Second Department.

Decided November 12, 2008.

EXCERPT:

A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid (see Cruz v Cruz, 37 AD3d 754; Crispino v Greenpoint Mtge. Corp., 304 AD2d 608; Yin Wu v Wu, 288 AD2d 104; Rosen v Rosen, 243 AD2d 618; Filowick v Long, 201 AD2d 893). Thus, the Supreme Court correctly held that there are triable issues of fact as to the validity of both the deed and subject mortgage and properly denied the plaintiff’s motion for summary judgment.

[ipaper docId=45946796 access_key=key-1v9fh5byvbl8sqbvb17p height=600 width=600 /]

GMAC was denied in 2009

Hendra Wargo, appellant,

v.

Paul Henri Jean, et al., defendants, Wilmington Finance, a Division of AIG Federal Savings Bank, respondent. (Action No. 1) Wilmington Finance, a Division of AIG Federal Savings Bank, respondent, v Paul Jean, defendant, Hendra Wargo, appellant.(Action No. 2)

2009-06932 2010-01452 (Index Nos.?4192/06, 8697/06) —

October 26, 2010

WILLIAM F. MASTRO, J.P. JOSEPH COVELLO THOMAS A. DICKERSON SHERI S. ROMAN, JJ. Mary Patricia Papini Guidetti, Middletown, N.Y., for appellant.

Day Pitney LLP, New York, N.Y. (Jonathan M. Borg of counsel), for respondent in Action No. 1.

Law Offices of Jordan S. Katz, P.C., Melville, N.Y. (Michael Lowe of counsel), for respondent in Action No. 2.

Argued-September 30, 2010

Excerpt: Since, at the time Wilmington moved for summary judgment on the complaint in the foreclosure action, the issues of forgery and fraud were also being litigated in the fraud action, the Supreme Court should have granted Wargo’s motion to stay all proceedings in the foreclosure action, pending resolution of the fraud action. If Wargo succeeds in proving that the documents transferring the property to Jean were fraudulent, or that the signatures thereon were forged, then Wilmington’s mortgage is not valid and Wilmington cannot succeed in the foreclosure action (see Johnson v. Melnikoff, 65 AD3d 519, 520; ?GMAC Mtge. Corp. v. Chan, 56 AD3d 521, 522). Moreover, since the Supreme Court did not determine in the foreclosure action that there was no forgery or fraud, but only that the issues of forgery and fraud were irrelevant to the disposition of that action, those issues have not been necessarily decided against Wargo. ? Accordingly, the doctrine of res judicata is inapplicable, and the Supreme Court should not have granted Wilmington’s motion to dismiss the complaint in the fraud action on that ground (see Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500).

[ipaper docId=45956416 access_key=key-1vupu7btkw8xtsxeq8s8 height=600 width=600 /]

EXCERPT:

In submitting any future orders of reference said application shall include an affidavit from plaintiff indicating whether this loan is subject to a H.A.M.P. review and whether plaintiff is or is not prevented from proceeding with the instant foreclosure by reason of any applicable federal H.A.M.P. directives.

Read each below as some are worded differently…

[ipaper docId=45801709 access_key=key-1bx4piyyyebnoga2vmrr height=600 width=600 /]

Wells Fargo Bank, N.A. SUCCESSOR BY MERGER TO
WELLS FARGO HOME MORTGAGE INC., Plaintiff,

against

Paul Meyers, MICHELA MEYERS, DAIMLER CHRYSLER
FINANCIAL SERVICES AMERICAS LLC, FORD MOTOR
CREDIT COMPANY, JP MORGAN CHASE BANK, NA
LVNV FUNDING LLC, NEW YORK STATE DEPARTMENT
OF TAXATION AND FINANCE TOWN SUPERVISOR OF
THE TOWN OF BABYLON, and JOHN DOE, Defendants.

Steven J. Baum P.C.
Attorneys for Plaintiff
900 Merchants Concourse
Westbury, New York 11590

Diana Lozada Ruiz
Attorney for Defendants
PO Box 604
Mineola, New York 11501
Patrick A. Sweeney, J.

EXCERPTS:

Meyers testified that the defendants were not in default but were struggling to pay the mortgage. She claimed that several representatives of the plaintiff told her that she could not apply for a modification until she
was three months late with payments. According to Meyers, she was told to default on the mortgage in order to apply for a modification. Meyers testified that she followed this advice, made a down payment and faxed over a hardship letter along with financial documentation. Meyers claimed that the plaintiff kept losing the documents and that she had to re-fax the information numerous times.

<SNIP>

In addition, the plaintiff has provided conflicting information regarding its denial of the
modification. Less than one month after the initial denial, the defendants received another
letter indicating that the plaintiff could not adjust the terms of the mortgage because the
investor on the mortgage declined the requested modification. Within a week, the defendants
were sent additional letters advising them of mortgage options and again directing them to
apply to the Home Affordable Modification Program. This is inconsistent as the plaintiff
takes the position that it cannot modify the loan without the approval of Freddie Mac but
offered no evidence as to whether the initial modification was approved by Freddie Mac
before it was sent to the defendants. Freddie Mac is not a party to this action and is not the
party seeking to foreclose the mortgage. The plaintiff has failed to demonstrate any good
faith basis for refusing to honor the terms of the trial modification or offering another similar
proposal. The defendants complied with the all the requirements of the trial modification
and have appeared at all the conferences in this action. The defendant Paul Meyers is
gainfully employed and the defendants are trying to avoid losing their home. Under these
circumstances, the Court finds that the plaintiff has acted in bad faith. In view of the Court’s
broad equitable powers, the Court finds that the appropriate remedy is to compel specific
performance of the original modification agreement proposed by the plaintiff and accepted
by the defendants (see e.g. EMC Mortgage Co v Gross, 289 AD2d 438 [2d Dept 2001]).

Accordingly, it is

ORDERED that the plaintiff is directed to execute a final modification based upon the
terms of the original modification proposal, and it is further

ORDERED that the complaint to foreclose the mortgage is dismissed.

Read order below…

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