MAINE SUPREME JUDICIAL COURT

HSBC MORTGAGE SERVICES, INC.

v.

DANA S. MURPHY et al.

EXCERPT:

[¶12] In this case, the affidavits submitted by HSBC contain serious irregularities that make them inherently untrustworthy. The first Vadney affidavit, submitted by HSBC in conjunction with its second motion for summary judgment identifies Vadney as “a Vice President of HSBC Mortgage Services, Inc.,” and was dated and notarized on August 24, 2009. It asserts, among other things, that HSBC is the holder of the note and mortgage deed by virtue of an assignment dated December 11, 2006, and a confirmatory assignment of the note and mortgage dated August 24, 2009. Copies of both assignments are attached to the affidavit. The affidavit states that the confirmatory assignment was recorded in the Androscoggin County Registry of Deeds in Book 7775, Page 346. The copy of the confirmatory
assignment attached to the Vadney affidavit indicates that it was also dated and notarized on August 24, 2009, and then recorded at the Registry of Deeds on August 27, 2009, three days after the date Vadney signed the affidavit swearing that it had been recorded as of August 24, 2009.

[¶13] In addition, the confirmatory assignment from MERS, as nominee for Calusa Investments, LLC, to HSBC was also signed by Vadney. It indicates that Vadney signed the confirmatory assignment on behalf of MERS in her capacity as
its vice president. The summary judgment record is otherwise silent as to whether on August 24, 2009, Maria Vadney was simultaneously an officer of both MERS, the assignor, and HSBC, the assignee, as the affidavit and the confirmatory
assignment suggest.

[¶14] HSBC filed a second affidavit on October 1, 2009, signed by Maria Vadney on September 28, 2009, in support of its statement of supplemental facts filed in response to the Murphy’s opposing statement of material facts. The
affidavit contains a notary’s jurat dated September 24, 2009, four days before Vadney signed the affidavit.

[¶15] The Murphys, noting the discrepancies in the two Vadney affidavits and further observing that in both, the signature and jurat appear on a page separate from the body of the affidavit, urge us to infer that the texts of the affidavits submitted by HSBC were attached to the signature and jurat pages after those pages were executed. The Murphys further contend that if this inference is correct, “the potential for fraud is great with all these affidavits and near certain with the August 24th Vadney affidavit.”8

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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.

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