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Richard v. Schneiderman & Sherman et al – MI SC instead of granting leave to appeal, VACATED the judgment & remanded the case pursuant to Res. Funding v. Saurman

Richard v. Schneiderman & Sherman et al – MI SC instead of granting leave to appeal, VACATED the judgment & remanded the case pursuant to Res. Funding v. Saurman


Michigan Supreme Court
Lansing, Michigan

January 30, 2012

AARON RICHARD,
Plaintiff-Appellee,

v

SCHNEIDERMAN & SHERMAN, P.C.,
Defendant-Appellant,

and

GMAC MORTGAGE, and MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS,
INC.,
Defendants-Appellees.
_________________________________________/

By order of December 29, 2011, the proceedings in this case were automatically
stayed by the filing of a petition in bankruptcy. On order of the Court, the bankruptcy
stay having been lifted and the case having been reopened, the application for leave to
appeal the August 25, 2011 judgment of the Court of Appeals is considered and, pursuant
to MCR 7.302(H)(1), in lieu of granting leave to appeal, we VACATE the judgment of
the Court of Appeals and we REMAND this case to the Court of Appeals for
reconsideration in light of Residential Funding Co, LLC, f/k/a Residential Funding Corp
v Saurman, 490 Mich ___ (decided November 16, 2011).

MARILYN KELLY, J., would grant leave to appeal.

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NJDC denies foreclosure law firm’s motion for a gag order silencing homeowners’ counsel in proposed RICO class action against Phelan Hallinan & Schmieg and Wells Fargo

NJDC denies foreclosure law firm’s motion for a gag order silencing homeowners’ counsel in proposed RICO class action against Phelan Hallinan & Schmieg and Wells Fargo


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CHARLES GILES, et al.,
Plaintiffs,

v.

PHELAN, HALLINAN & SCHMIEG,
L.L.P., et al.,
Defendants.

This matter is before the Court on the motion for temporary
restraints and entry of a protective order by Defendants Phelan
Hallinan & Schmieg, P.C., Francis S. Hallinan, Rosemarie Diamond,
Full Spectrum Services, Inc., and Land Title Services of New
Jersey, Inc. (“Moving Defendants”) [Docket Item 5]; the Court
having received briefing in support of the motion by the Moving
Defendants on November 21, 2011 and in opposition to the motion
by Plaintiffs on November 28, 2011; the Court having heard oral
argument on the motion from the Parties at a hearing on November
28, 2011;

For the reasons articulated in the Oral Opinion read into
the record at the November 28, 2011 hearing; and for good cause
shown

IT IS, this 28th day of November, 2011, ORDERED that the motion for temporary restraints and entry
of a protective order shall be, and hereby is, DENIED without
prejudice.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION FOR PROTECTIVE ORDER

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LETTER TO AZ ATTORNEY GENERAL HORNE RE: VASQUEZ CERTIFIED QUESTION

LETTER TO AZ ATTORNEY GENERAL HORNE RE: VASQUEZ CERTIFIED QUESTION


REQUIRED READING.

 

RE:

Brief of Amicus Curiae State of Arizona, Constituting the Opinion of the Arizona Attorney General, to the Arizona Supreme Court in Vasquez Deutsche Bank National Trust Company, as Trustee for Saxon Asset Securities Trust 2005-3; Saxon Mortgage, Inc. (“DBNTC”), No. CV 11-0091-CQ (Ariz. S. Ct. 2011), Certified Question from Bankruptcy Case, In re Vasquez, 4:08-bk-15510-EWH (Bky. D. Ariz Tucson)

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Richard v. SCHNEIDERMAN & SHERMAN, PC | MI Appeals Court Vacates, Reversed/Remands “MERS is not entitled to utilize foreclosure by advertisement where it does not own the underlying note”

Richard v. SCHNEIDERMAN & SHERMAN, PC | MI Appeals Court Vacates, Reversed/Remands “MERS is not entitled to utilize foreclosure by advertisement where it does not own the underlying note”


AARON RICHARD, Plaintiff-Appellant,

v.

SCHNEIDERMAN & SHERMAN, P.C., GMAC MORTGAGE and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Defendants-Appellees.

No. 297353.

Court of Appeals of Michigan.

August 11, 2011, 9:00 a.m.

Before: BORRELLO, P.J., and METER and SHAPIRO, JJ.

PER CURIAM.

Plaintiff, Aaron Richard, appeals as of right an order granting summary disposition in favor of defendants, Schneiderman & Sherman, P.C. (Schneiderman), GMAC Mortgage (GMAC), and Mortgage Electronic Registration Systems, Inc. (MERS). We reverse the trial court’s grant of summary disposition, vacate the foreclosure proceeding, and remand further proceedings consistent with this opinion.

This case arises from plaintiff’s attempts to challenge the foreclosure and sale of property he owned located at 19952 Hubbell in Detroit. Plaintiff purchased the property in part through a $50,000 loan, executed on May 4, 2006, from Homecomings Financial Network, Inc. The loan was secured by a May 4, 2006, mortgage with MERS, as the nominee of Homecomings.

It is not clear from the record when plaintiff fell behind on his mortgage payments. However, on October 9, 2009, Schneiderman, acting as GMAC’s agent, mailed plaintiff a notice stating that his mortgage was in default and informing him of his rights, including to request mediation. The outstanding debt owed to GMAC was listed as $50,267.78. Ultimately, MERS began non-judicial foreclosure by advertisement under MCL 600.3201, et seq., and purchased the property at the subsequent sheriff’s sale.

Plaintiff filed suit, in pro per, during the redemption period, alleging that the sheriff’s sale was “flawed” on numerous grounds and asserted that MERS did not hold any rights to the debt. Defendants filed for summary disposition, asserting, among other things, that the sheriff’s sale was “not only legal, but also valid, as all required procedures were followed.” The trial court granted summary disposition in favor of defendants and dismissed plaintiff’s claim.

Although many of plaintiff’s claims are without merit, it is clear that the sheriff’s sale was invalid because, although MERS was only a mortgagee, MERS foreclosed on plaintiff’s property utilizing non-judicial foreclosure by advertisement. This Court has held that MERS is not entitled to utilize foreclosure by advertisement where it does not own the underlying note. Residential Funding Co, Inc v Saurman, ___ Mich App ___; ___ NW2d ___ (Docket Nos. 290248, 291443; April 21, 2011), slip op at 11. Under such circumstances, “MERS’ inability to comply with the statutory requirements rendered the foreclosure proceedings . . . void ab initio.Id. Because the application of Saurman is dispositive, we must determine whether Saurman is retroactive and, if so, whether to assign it full or limited retroactivity.

“[T]he general rule is that judicial decisions are to be given complete retroactive effect.” Hyde v Univ of Mich Bd of Regents, 426 Mich 223, 240; 393 NW2d 847 (1986). “Complete prospective application has generally been limited to decisions which overrule clear and uncontradicted case law.” Id.

Rules determined in opinions that apply retroactively apply to all cases “still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule[s].” Harper v Virginia Dep’t of Taxation, 509 US 86, 97, 113 S Ct 2510, 125 L Ed 2d 74 (1993). Rules determined in opinions that apply prospectively only, on the other hand, not only do not apply to cases still open on direct review, but do not even apply to the parties in the cases in which the rules are declared. See Pohutski v City of Allen Park, 465 Mich 675, 699, 641 NW2d 219 (2002). [McNeel v Farm Bureau Ins, 289 Mich App 76, 94; 795 NW2d 205 (2010).]

Given that this Court applied its holding to the cases in Saurman, it is clear that the holding in Saurman has been afforded at least limited retroactivity.[1] However, cases given limited retroactivity apply “in pending cases where the issue had been raised and preserved,” Stein v Southeastern Mich Family Planning Project, Inc, 432 Mich 198, 201; 438 NW2d 876 (1989), while cases with full retroactivity apply to all cases then pending. This distinction makes a difference because, although plaintiff contested the foreclosure, he did not specifically raise and preserve the issue of whether MERS has the authority to foreclose by advertisement. Thus, Saurman is only applicable to this case if it is granted full retroactivity.

“The threshold question is whether `the decision clearly established a new principle of law.'” Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 220; 731 NW2d 41 (2007) (citation omitted). Our Supreme Court has held that cases that properly interpret statutes, even if prior caselaw has held differently, “restore[] legitimacy to the law” and, thus, are “not a declaration of a new rule, but . . . a vindication of controlling legal authority.” Id. at 222 (quotation marks and citation omitted). In Saurman, this Court interpreted MCL 600.3204(1)(d). There was no existing caselaw and, therefore, it did not overrule any law or reconstrue a statute. See Hyde, 426 Mich at 240. Consequently, this Court’s decision in Saurman was not “tantamount to a new rule of law,” see Rowland, 477 Mich at 222 n 17, and, therefore should be given full retroactive effect.[2] Hence, Saurman is applicable to the instant case, rendering the foreclosure proceedings void ab initio. Saurman, ___ Mich App at ___, slip op at 11.

Accordingly, we reverse the trial court’s grant of summary disposition, vacate the foreclosure proceeding, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

[1] In addition, “there is a serious question as to whether it is constitutionally legitimate for this Court to render purely prospective opinions, as such ruling are, in essence, advisory opinions.” Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 221; 731 NW2d 41 (2007), quoting Wayne Co v Hathcock, 471 Mich 445, 485 n 98; 684 NW2d 765 (2004).

[2] We reiterate the general rule that a retroactive decision cannot serve to reopen those cases that are already closed. Thus, where the time to oppose the foreclosure by advertisement, the time to oppose the resulting eviction, and the time to appeal from those actions have run, a party may not rely on Saurman in an attempt to reopen those cases to recover possession or ownership.

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[NYSC] NY JUDGE DENIES 42 FORECLOSURE CASES “HAMP, AFFIDAVIT” ISSUES

[NYSC] NY JUDGE DENIES 42 FORECLOSURE CASES “HAMP, AFFIDAVIT” ISSUES


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…

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MIND-BLOWING!! NY JUDGE DENIES 127 FORECLOSURES PURSUANT TO ADMINISTRATIVE ORDERS FROM CHIEF JUDGE, ROBO SIGNING

MIND-BLOWING!! NY JUDGE DENIES 127 FORECLOSURES PURSUANT TO ADMINISTRATIVE ORDERS FROM CHIEF JUDGE, ROBO SIGNING


JUDGE COHALAN IS JUDGE OF THE WEEK!!!

“Issues”…Nah no “issues”? If this isn’t sending us a message or 127 messages that there aren’t any “issues”… Let them continue to submit exactly what they were filing before the *New Rule*… don’t stop now! Believe me there is more than these!

EXCERPT:

Pursuant to an Administrative Order of the Chief Judge, dated October 20, 2010, all residential mortgage foreclosure actions require an affirmation from the attorney representing the plaintiff/lender/bank, as stated in the affirmation attached to this order, that he/she has inspected all documents.

The plaintiff is also directed on any future application to provide a copy of this Court’s order, the prior application/motion papers and an updated affidavit of regularity/merit from the plaintiff/lender/bank’s representative that he/she has reviewed the file in this case and that he/she documents that all paperwork is correct. The plaintiff/lender/bank’s representative shall also provide in said affidavit of regularity her/his position, length of service, training, educational background and a listing of the documents and financial records reviewed substantiating the review of the amounts owed. The affidavit should also include that she/he has personally reviewed both the mortgage and the note and any assignments for accuracy.

The plaintiff bears the burden of proof in a summary judgment proceeding and judgment will only be awarded when all doubt is removed as to the existence of any triable issue of fact. Under the present circumstances, where there have been numerous instances alleged as to “robo” signing of documents and a failure to attest to the accuracy of documents in mortgage foreclosure proceedings, the plaintiff must prove its entitlement to foreclose on a mortgage as a matter of law by establishing the regularity and accuracy of the financial documentary evidence submitted and the Court will be scrutinizing all documents for accuracy.

The foregoing constitutes the decision of the Court.

SEE ALL 127  Below…


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Posted in STOP FORECLOSURE FRAUDComments (13)

NY CLASS ACTION | MENASHE v. STEVEN J. BAUM, P.C.

NY CLASS ACTION | MENASHE v. STEVEN J. BAUM, P.C.


JACOB MENASHE

against

STEVEN J. BAUM, P.C.

[ipaper docId=42833373 access_key=key-29f1w0r8u44c1vma22ao height=600 width=600 /]

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OHIO WOMAN SUES BANK OF AMERICA, ROBO SIGNER, FANNIE MAE, AG CORDRAY

OHIO WOMAN SUES BANK OF AMERICA, ROBO SIGNER, FANNIE MAE, AG CORDRAY


This may be the first lawsuit from an individual homeowner seeking to undo a completed foreclosure.

I am sure these are lining up as I type…

Keep your eye on Harmon Law Offices, P.C. in Newton Highlands, MA 02461 aka Mark P. Harmon who serves as a director of Law offices of David J. Stern’s “DJSP Enterprises Inc.”

Enjoy!

[ipaper docId=40005374 access_key=key-ar2tlhnlp15p7ysmrmr height=600 width=600 /]

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INDYMAC, ONEWEST DENIED|’Lost Assignment’ ‘Break In Chain of Title’

INDYMAC, ONEWEST DENIED|’Lost Assignment’ ‘Break In Chain of Title’


YOU AIN’T FOOLING THIS JUDGE! Dated 8/18/2010

Lets see how they produce the assignment from 2005!  We bet we already know!

Plaintiff subsequently purchased the aforementioned mortgage and note from Defendant. However, an Assignment of Mortgage from Defendant to Plaintiff has been lost and was never recorded. Plaintiff, as the current holder of the note, desires to foreclose on the subject mortgage.

However, Plaintiff cannot do so because of the break in chain of title.

the Clerk of the County of Suffolk be directed to record an Order reflecting the assignment of mortgage as Lancaster Mortgage Bankers as original assignor to Indymac Bank, FSB, as the assignee with an effective date-of December 20,2005. The Plaintiff interests originates from a mortgage from Hem-Ur Nekhet to Lancaster Mortgage Bankers, in the principal amount of $608,000.00, dated December 20,2005 and recorded on February 9,2006 in CRFN: 2006000079624. Plaintiff subsequently purchased the aforementioned mortgage and note from Defendant.

She goes on and hand writes the following:

Insufficient proof of ownership of mortgage to make up for lost assignment of mortgage, service was pursuant to BCC 306 on a corporation that is alleged to no longer be in operation and the proposed judgment says that the summons & complaint were filed in Suffolk County

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Posted in chain in title, concealment, conflict of interest, conspiracy, CONTROL FRAUD, corruption, foreclosure, foreclosure fraud, foreclosures, indymac, onewest, STOP FORECLOSURE FRAUDComments (0)

FORECLOSURE FRAUD Personally CAUGHT by JUDGE SCHACK! Dismissed with PREJUDICE!

FORECLOSURE FRAUD Personally CAUGHT by JUDGE SCHACK! Dismissed with PREJUDICE!


2010 NY Slip Op 51482(U)

ARGENT MORTGAGE COMPANY, LLC, Plaintiff,
v.
DAPHINE MAITLAND, ET. AL., Defendants.

41383/07.

Supreme Court, Kings County.

Decided August 19, 2010.

Melissa A Sposato, Esq., Law Offices of Jordan Katz, PC, Melville NY, Plaintiff.

No Appearances, Defendant.

ARTHUR M. SCHACK, J.

In this mortgage foreclosure action, plaintiff’s motion for an order of reference for the premises located at 732 Hendrix Street, Brooklyn, New York (Block 4305, Lot 22, County of Kings) is denied with prejudice. The complaint is dismissed. The notice of pendency filed against the above-named real property is cancelled. Plaintiff’s successor in interest, AMERICAN HOME MORTGAGE SERVICING, INC. (AHMSI), lacks standing to continue this action because the instant mortgage was satisfied on April 26, 2010. Plaintiff’s counsel never notified the Court that the mortgage had been satisfied and failed to discontinue the instant action with prejudice. I discovered that the mortgage had been satisfied by personally searching the Automated City Register Information System (ACRIS) website of the Office of the City Register, New York City Department of Finance. AHMSI’s President and Chief Executive Officer or its Executive Vice President, Chief Legal Officer and Secretary Jordan D. Dorchuck, Esq., its counsel, Melissa A. Sposato, Esq. and her firm, Jordan S. Katz, P.C., will be given an opportunity to be heard as to why this Court should not sanction them for making a “frivolous motion,” pursuant to 22 NYCRR §130-1.1.

Background

Defendant DAPHINE MAITLAND (MAITLAND) borrowed $392,000.00 from original plaintiff ARGENT MORTGAGE COMPANY, LLC (ARGENT), on August 4, 2006. The loan was secured by a mortgage, recorded by ARGENT, at the Office of the City Register of the City of New York, New York City Department of Finance, on August 23, 2006, at City Register File Number (CRFN) XXXXXXXXXX. Defendant MAITLAND allegedly defaulted in her mortgage loan payments with her June 1, 2007 payment. ARGENT commenced the instant action with the filing of the summons, complaint and notice of pendency with the Kings County Clerk on November 8, 2007. Plaintiff’s counsel, on April 14, 2009, filed the instant motion for an order of reference with the Court’sForeclosure Department. After reviewing the papers, the Foreclosure Department forwarded the instant motion to me on August 16, 2010.

On August 16, 2010, I searched ACRIS and discovered that AHMSI, the successor in interest to plaintiff ARGENT, executed a satisfaction of the instant mortgage almost four months ago, on April 26, 2010. The satisfaction was executed in Idaho Falls, Idaho, by Krystal Hall, Vice President of “AMERICAN HOME MORTGAGE SERVICING, INC., AS SUCCESSOR TO CITI RESIDENTIAL LENDING, INC. AS SUCCESSOR TO ARGENT MORTGAGE COMPANY, LLC,” and the satisfaction was recorded at the Office of the City Register of the City of New York, on May 10, 2010, at CRFN XXXXXXXXXXXXX.

Successor plaintiff AHMSI is one of several companies controlled by billionaire investor Wilbur L. Ross, Jr. through his firm, W. L. Ross & Company. Louise Story, in her April 4, 2008 New York Times article, “Investors Stalk the Wounded of Wall Street,” described Mr. Ross as “a dean of vulture investing.” She wrote:

Almost two centuries ago, as Napoleon marched on Waterloo, a scion of the Rothschilds is said to have declared: The time to buy is when blood is running in the streets.

Now as red ink runs on Wall Street, the figurative heirs of the Rothschilds — bankers, traders, hedge fund gurus and takeover artists — are plotting to profit from today’s financial upheaval. These market opportunists — vulture investors in the Wall Street term — have begun to swoop. They are buying up mortgages of hard-pressed homeowners, the bank loans of cash-short businesses, and companies that seem to be hurtling to bankruptcy. And they are trying to buy them all on the cheap. . . .

“The only time you really know you’ve reached the bottom is when you’re back on the other side and things are going back up,” said Wilbur L. Ross, Jr., a dean of vulture investors, who made a fortune buying steel companies when no one else seemed to want them.

Such caution aside, his firm, W. L. Ross & Company, recently spent $2.6 billion for two mortgage servicers [AHMSI and Option One] and a bond insurance company. He said he planned to buy more as hedge funds and other investor sell at bargain prices.

Moreover, ACRIS revealed that defendant MAITLAND sold the premises to 732 HENDRIX STREET, LLC for $155,000.00, with the deed executed on April 5, 2010 and recorded on April 14, 2010, at the Office of the City Register of the City of New York, at CRFN XXXXXXXXXXXXX.

Plaintiff’s counsel never had the courtesy or professionalism to notify the Court that the instant mortgage was satisfied and file a motion to discontinue the instant action. The Court is gravely concerned that it: expended scarce resources on an action that should have been discontinued; and, would have signed an order that could have possibly damaged the credit rating of defendant MAITLAND and put an unfair cloud on the title to the subject premises now owned by 732 HENDRIX STREET, LLC, causing both defendant MAITLAND and 732 HENDRIX STREET, LLC much time and effort to correct an error caused by the failure of successor plaintiff AHMSI and plaintiff’s counsel to exercise due diligence. If successor plaintiff AHMSI is a responsible lender, not a vulture investor looking to profit “when blood is running in the streets,” it should have notified the Court that the subject mortgage had been satisfied.

Discussion

It is clear that successor plaintiff AHMSI lacked standing to proceed in the instant action since some time prior to April 26, 2010, when the satisfaction for defendant MAITLAND’s mortgage was executed. The exact date is probably April 5, 2010, when defendant MAITLAND likely paid off the subject mortgage loan as part of her closing with 732 HENDRIX STREET, LLC, for the sale of the subject mortgaged premises. “To establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish the existence of the mortgage and the mortgage note, ownership of the mortgage, and the defendant’s default in payment.” (Campaign v Barba (23 AD3d 327 [2d Dept. 2005]). The instant mortgage was satisfied months before the instant motion for an order of reference was forwarded to me by the Foreclosure Department. The satisfaction, dated April 26, 2010, states that “AMERICAN HOME MORTGAGE INC. AS SUCCESSOR TO CITI RESIDENTIAL LENDING, INC. AS SUCCESSOR TO ARGENT MORTGAGE COMPANY, LLC . . . does hereby certify that a certain indenture of mortgage . . . to secure payment of the principal sum of $392,000.00, and interest, and duly recorded . . . document no. 2006000477619 on the 23rd day of August 2006, is PAID, and does hereby consent that the same be discharged of record.” (See Household Finance Realty Corp. of New York v Wynn, 19 AD3d 545 [2d Dept. 2005]; Sears Mortgage Corp. v Yahhobi, 19 AD3d 402 [2d Dept. 2005]; Ocwen Federal Bank FSB v Miller, 18 AD3d 527 [2d Dept. 2005]; U.S. Bank Trust Nat. Ass’n Trustee v Butti, 16 AD3d 408 [2d Dept 2005]; First Union Mortgage Corp. v Fern, 298 AD2d 490 [2d Dept 2002]; Village Bank v Wild Oaks, Holding, Inc., 196 AD2d 812 [2d Dept 1993]).

The Court of Appeals (Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 801, 812 [2003], cert denied 540 US 1017 [2003]) declared that “[s]tanding to sue is critical to the proper functioning of the judicial system. It is a threshold issue. If standing is denied, the pathway to the courthouse is blocked. The plaintiff who has standing, however, may cross the threshold and seek judicial redress.”

In Caprer v Nussbaum (36 AD3d 176, 181 [2d Dept 2006]) the Court held that “[s]tanding to sue requires an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request.” If a plaintiff lacks standing to sue, the plaintiff may not proceed in the action. (Stark v Goldberg, 297 AD2d 203 [1st Dept 2002]).

Since AHMSI executed the satisfaction for the instant mortgage, the Court must not only deny the instant motion, but also dismiss the complaint and cancel the notice of pendency filed by ARGENT with the Kings County Clerk on November 8, 2007. 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.” Professor David Siegel, in NY Prac, § 334, at 535 [4th ed] observes about a notice of pendency that:

The plaintiff files it with the county clerk of the real property county, putting the world on notice of the plaintiff’s potential rights in the action and thereby warning all comers that if they then buy the property or lend on the strength of it or otherwise rely on the defendant’s right, they do so subject to whatever the action may establish as the plaintiff’s right.

The Court of Appeals, in 5303 Realty Corp. v O & Y Equity Corp. (64 NY2d 313, 315 [1984]), commented that “[a] notice of pendency, commonly known as a lis pendens,‘ can be a potent shield to litigants claiming an interest in real property.” The Court, at 318-320, outlined the history of the doctrine of lis pendens back to 17th century England. It was formally recognized in New York courts in 1815 and first codified in the Code of Procedure [Field Code] enacted in 1848. At 319, the Court stated 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, “the statutory scheme permits a party to effectively retard the alienability of real property without any prior judicial review.”

In Israelson v Bradley (308 NY 511, 516 [1955]) the Court observed that with a notice of pendency a plaintiff who has an interest in real property has received from the State:

an extraordinary privilege which . . . upon the mere filing of the notice of a pendency of action, a summons and a complaint and strict compliance with the requirements of section 120 [of the Civil Practice Act; now codified in CPLR § § 6501, 6511 and 6512] is required. Proper administration of the law by the courts requires promptness on the part of a litigant so favored and that he accept the shield which has been given him upon the terms imposed and that he not be permitted to so use the privilege granted that itbecomes a sword usable against the owner or possessor of realty. If the terms imposed are not met, the privilege is at an end. [Emphasis added]

Article 65 of the CPLR outlines notice of pendency procedures. The Court, in Da Silva v Musso (76 NY2d 436, 442 [1990]), held that “the specific statutorily prescribed mechanisms for implementing this provisional remedy . . . were designed with a view toward balancing the interests of the claimant in the preservation of the status quo against the equally legitimate interests of the property owner in the marketability of his title.” The Court of Appeals, quoted Professor Siegel, in holding that “[t]he ability to file a notice of pendency is a privilege that can be lost if abused’ (Siegel, New York Practice § 336, at 512).” (In Re Sakow, 97 NY2d 436, 441 [2002]).

The instant case, with successor plaintiff AHMSI lacking standing to bring this action and the complaint dismissed, meets the criteria for losing “a privilege that can be lost if abused.” CPLR § 6514 (a) provides for the mandatory cancellation of a notice of pendency by:

[t]he 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 5519. [Emphasis added]

The plain meaning of the word “abated,” as used in CPLR § 6514 (a) is the ending of an action. Abatement is defined (Black’s Law Dictionary 3 [7th ed 1999]) as “the act of eliminating or nullifying.” “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 “[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. at 320-321; Rose v Montt Assets, 250 AD2d 451, 451-452 [1st Dept 1998]; Siegel, NY Prac § 336 [4th ed]).” AHMSI, as successor plaintiff, lacks standing to sue. Therefore, dismissal of the instant complaint must result in mandatory cancellation of the November 8, 2007 notice of pendency against the property “in the exercise of the inherent power of the Court.”

The failure of successor plaintiff AHMSI, by its President David M. Friedman or its Executive Vice President, Chief Legal Officer and Secretary Jordan D. Dorchuck, Esq., and its counsel, Melissa A. Sposato, Esq. and her firm, Jordan S. Katz, P.C., to discontinue the instant action since the April 2010 payoff of the MAITLAND mortgage appears to be “frivolous.” 22 NYCRR § 130-1.1 (a) states that “the 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 Subpart.” Further, it states in 22 NYCRR § 130-1.1 (b), that “sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.”

22 NYCRR § 130-1.1 (c) states that:

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.

It is clear that since at least April 26, 2010 the instant motion for aan order of reference “is completely without merit in law” and “asserts material factual statements that are false.”

Several years before the drafting and implementation of the Part 130 Rules for costs and sanctions, the Court of Appeals (A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 6 [1986]) observed that “frivolous litigation is so serious a problem affecting the proper administration of justice, the courts may proscribe such conduct and impose sanctions in this exercise of their rule-making powers, in the absence of legislation to the contrary (see NY Const, art VI, § 30, Judiciary Law § 211 [1] [b] ).”

Part 130 Rules were subsequently created, effective January 1, 1989, to give the courts an additional remedy to deal with frivolous conduct. These stand beside Appellate Division disciplinary case law against attorneys for abuse of process or malicious prosecution. The Court, in Gordon v Marrone (202 AD2d 104, 110 [2d Dept 1994], lv denied 84 NY2d 813 [1995]), instructed that:

Conduct is frivolous and can be sanctioned under the court rule if “it is completely without merit . . . and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; or . . .

it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130-1.1[c] [1], [2] . . . ).

In Levy v Carol Management Corporation (260 AD2d 27, 33 [1st Dept 1999]) the Court stated that in determining if sanctions are appropriate the Court must look at the broad pattern of conduct by the offending attorneys or parties. Further, “22 NYCRR 130-1.1 allows us to exercise our discretion to impose costs and sanctions on an errant party . . .” Levy at 34, held that “[s]anctions are retributive, in that they punish past conduct. They also are goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the Bar at large.”

The Court, in Kernisan, M.D. v Taylor (171 AD2d 869 [2d Dept 1991]), noted that the intent of the Part 130 Rules “is to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics (cf. Minister, Elders & Deacons of Refm. Prot. Church of City of New York v 198 Broadway, 76 NY2d 411; see Steiner v Bonhamer, 146 Misc 2d 10) [Emphasis added].” Since at least April 26, 2010, and probably since April 5, 2010, the instant action is “a waste of judicial resources.” This conduct, as noted in Levy, must be deterred. In Weinstock v Weinstock (253 AD2d 873 [2d Dept 1998]) the Court ordered the maximum sanction of $10,000.00 for an attorney who pursued an appeal “completely without merit,” and holding, at 874, that “[w]e therefore award the maximum authorized amount as a sanction for this conduct (see, 22 NYCRR 130-1.1) calling to mind that frivolous litigation causes a substantial waste of judicial resources to the detriment of those litigants who come to the Court with real grievances [Emphasis added].” Citing Weinstock, the Appellate Division, Second Department, in Bernadette Panzella, P.C. v De Santis (36 AD3d 734 [2d Dept 2007]) affirmed a Supreme Court, Richmond County $2,500.00 sanction, at 736, as “appropriate in view of the plaintiff’s waste of judicial resources [Emphasis added].”

In Navin v Mosquera (30 AD3d 883 [3d Dept 2006]) the Court instructed that when considering if specific conduct is sanctionable as frivolous, “courts are required to examine whether or not the conduct was continued when its lack of legal or factual basis was apparent [or] should have been apparent’ (22 NYCRR 130-1.1 [c]).” The Court, in Sakow ex rel. Columbia Bagel, Inc. v Columbia Bagel, Inc. (6 Misc 3d 939, 943 [Sup Ct,

New York County 2004]), held that “[i]n assessing whether to award sanctions, the Court must consider whether the attorney adhered to the standards of a reasonable attorney (Principe v Assay Partners, 154 Misc 2d 702 [Sup Ct, NY County 1992]).” In the instant action, plaintiff’s Chief Legal Officer or its outside counsel is responsible for keeping track of whether the mortgage was satisfied. In Sakow at 943, the Court observed that “[a]n attorney cannot safely delegate all duties to others.”

This Court will examine the conduct of successor plaintiff AHMSI and plaintiff’s counsel, in a hearing, pursuant to 22 NYCRR § 130-1.1, to determine if plaintiff AHMSI, by its President, David M. Friedman, or its Executive Vice President, Chief Legal Officer and Secretary, Jordan D. Dorchuck, Esq., and plaintiff’s counsel Melissa A. Sposato, Esq. and her firm Jordan S. Katz, P.C. engaged in frivolous conduct, and to allow successor plaintiff AHMSI, by its President David M. Friedman or Executive Vice President, Chief Legal Officer and Secretary Jordan D. Dorchuck, Esq., and plaintiff’s counsel Melissa A. Sposato, Esq. and her firm Jordan S. Katz, P.C. a reasonable opportunity to be heard. The Court is aware that AHMSI’s Chief Legal Officer, Mr. Dorchuck, is a member of the New York State Bar. (See Mascia v Maresco, 39 AD3d 504 [2d Dept 2007]; Yan v Klein, 35 AD3d 729 [2d Dept 2006]; Greene v Doral Conference Center Associates, 18 AD3d 429 [2d Dept 2005]; Kucker v Kaminsky & Rich, 7 AD3d 39 [2d Dept 2004]).

Conclusion

Accordingly, it is

ORDERED, that the motion of successor plaintiff, AMERICAN HOME MORTGAGE SERVICING, INC., for an order of reference for the premises located at 732 Hendrix Street, Brooklyn, New York (Block 4305, Lot 22, County of Kings), is denied with prejudice; and it is further

ORDERED, that because successor plaintiff, AMERICAN HOME MORTGAGE SERVICING, INC., lacks standing and no longer is the mortgagee in this foreclosure action, the instant complaint, Index No. 41383/07 is dismissed with prejudice; and it is further

ORDERED, that the Notice of Pendency filed with the Kings County Clerk on November 8, 2007, by original plaintiff, ARGENT MORTGAGE COMPANY, LLC, in an action to foreclose a mortgage for real property located at 732 Hendrix Street, Brooklyn, New York (Block 4305, Lot 22, County of Kings), is cancelled; and it is further

ORDERED, that it appearing that successor plaintiff AMERICAN HOME MORTGAGE SERVICING, INC., Melissa A. Sposato, Esq. and Jordan S. Katz, P.C. engaged in “frivolous conduct,” as defined in the Rules of the Chief Administrator, 22 NYCRR § 130-1 (c), and that pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130.1.1 (d), “[a]n award of costs or the imposition of sanctions may be made. . . upon the court’s own initiative, after a reasonable opportunity to be heard,” this Court will conduct a hearing affording: successor plaintiff AMERICAN HOME MORTGAGE SERVICING, INC., by its President David M. Friedman or Executive Vice President, Chief Legal Officer and Secretary, Jordan D. Dorchuck, Esq.; Melissa A. Sposato, Esq.; and, Jordan S. Katz, P.C.; “a reasonable opportunity to be heard” before me in Part 27, on Monday, September 13, 2010, at 2:30 P.M., in Room 479, 360 Adams Street, Brooklyn, NY 11201; and it is further

ORDERED, that because the headquarters of successor plaintiff AMERICAN HOME MORTGAGE SERVICING, INC. is in Irving, Texas, Mr. Friedman or Mr. Dorchuck may appear either in person or by telephone; and it is further

ORDERED, that Ronald David Bratt, Esq., my Principal Law Clerk, is directed to serve this order by first-class mail, upon: David M. Friedman, President of successor plaintiff AMERICAN HOME MORTGAGE SERVICING, INC., 4600 Regent Boulevard, Suite 200, Irving, Texas 75063; Jordan D. Dorchuck, Esq., Executive Vice President, Chief Legal Officer and Secretary of successor plaintiff AMERICAN HOME MORTGAGE SERVICING, INC., 4600 Regent Boulevard, Suite 200, Irving, Texas 75063; Melissa A. Sposato, Esq., Law Offices of Jordan S. Katz, P.C., 395 North Service Road, Suite 401, Melville, New York XXXXX-XXXX; and Jordan S. Katz, P.C., 395 North Service Road, Suite 401, Melville, New York XXXXX-XXXX.

This constitutes the Decision and Order of the Court.

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bogus, chain in title, citi, concealment, conflict of interest, conspiracy, CONTROL FRAUD, corruption, discovery, dismissed, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, inc., investigation, judge arthur schack, lawsuit, mortgage, Mortgage Foreclosure Fraud, non disclosure, note, quiet title, Real Estate, scam, ViolationsComments (2)

DEUTSCHE GETS AN ARIZONA BEAT DOWN! In RE: Tarantola

DEUTSCHE GETS AN ARIZONA BEAT DOWN! In RE: Tarantola


U.S. Bankruptcy Judge EILEEN W. HOLLOWELL knew exactly where this was going and put an immediate stop to it.

Deutsche not only created the Allonge after it filed its MRS and falsely represented that it was affixed to the Original, but it also relied on the LPA authorizing the transfer of the Note when substantially identical powers of attorney have been held to be ineffective in reported decisions involving Deutsche.

Deutsche, AHMSI and counsel should, however, treat this decision as a warning. If, in the future, the court is confronted with filings as deficient and incorrect as filed in this case, the court will issue an order to show cause and consider imposing sanctions including, but not limited to, an award of fees to debtors’ counsel for having to oppose motions filed without proper evidence or worse with improper evidence.


[ipaper docId=35633817 access_key=key-9b6oinutgrymchunjqw height=600 width=600 /]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in chain in title, citi, conflict of interest, conspiracy, CONTROL FRAUD, corruption, deutsche bank, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, note, originator, securitization, servicers, trusteeComments (1)

Class Action Certification Granted In Illinois for FDCPA Violations: Codilis & Associates

Class Action Certification Granted In Illinois for FDCPA Violations: Codilis & Associates


I have a feeling this is going to be the case in one fashion or another against the Foreclosure Mills all over the US! I am going to start a new post for each Class Action related to a Mill. Keep checking back!

April 7, 2010 by christine

A reader from Illinois sent me this information. If you’re being foreclosed upon in Illinois by Codilis & Associates, you might want to pay close attention. This is from Edelman, Combs, Latturner & Goodwin, P.C.’s website.

Shea v. Codilis

99 C 0057

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

2000 U.S. Dist. LEXIS 4131

March 27, 2000, Decided

DISPOSITION: [*1] Plaintiff’s motion for class certification GRANTED.

COUNSEL: For plaintiff: Daniel A. Edelman, Cathleen M Combs, James O. Latturner, Marianne J. Lee, EDELMAN, COMBS & LATTURNER, Chicago, Illinois.

For defendant: Thomas McGarry, John M. Foley, Matthew R. Henderson, HINSHAW & CULBERTSON, Chicago, Illinois.

JUDGES: David H. Coar.

OPINION BY: David H. Coar

OPINION: Plaintiffs, James and Nancy Shea, received a form letter from Defendants Codilis & Associates, P.C. notifying them that the accelerated balance of their note and mortgage was due. Plaintiffs allege that the letter violates the Fair Debt Collection Practices Act (”FDCPA”) because it does not state the “amount of the debt” as required by 15 U.S.C. @ 1692g. Plaintiffs move to certify a class of individuals who were mailed the same collection form letter from Codilis & Associates, P.C. (that is, providing a dollar figure for the principal balance, but omitting such figures for other types of charges owed) on or after January 7, 1998, in connection with attempts to collect a residential mortgage loan on property located at the same address to which the letter was sent, if the letter was not returned by the Postal Service. [*2]

Plaintiffs seek class certification under Federal Rule of Civil Procedure 23(a) and 23(b)(3). Defendants do not oppose certification. To establish a class action, rule 23(a) requires that (1) the class be so numerous so as to render joinder of all members impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative class are typical of those of the class; and (4) the representative parties will fairly and adequately protect the interest of the class. In addition, rule 23(b)(3) states that common issues of law or fact must predominate over individual issues, and the class action must be the superior method of adjudicating the controversy.

Rule 23 requirements have been satisfied in this case. Defendants are one of the largest mortgage foreclosure firms in the Chicago area, filing more than 1,000 cases annually. Considering Defendants’ use of a standardized form letter, it is reasonable to infer that there will be a large number of class members. The claims of the class center on Defendants’ alleged violation of 15 U.S.C. @ 1692g by use of these collection form letters. Moreover, Plaintiffs’ claims [*3] are based on the same factual issues and legal theories as those of applicable to the class members. The Court is also convinced that Plaintiffs, who retained counsel experienced in brining class action suits and collection abuse claims, will adequately protect the interest of the class.

Furthermore, each proposed class member received the same form letter from Defendants, and the predominant question in this case is whether the language of the form letter violates 15 U.S.C. @ 1692g. A class action is also the superior method of resolving this controversy. Because small claims are at stake, it is improbable that many of the class members would initiate litigation individually. In addition, potential class members may not be aware of the violation of their rights under the FDCPA.

Therefore, Plaintiff’s motion for class certification is GRANTED. The certified class includes:

a. All persons who were mailed a form collection letter from Codilis & Associates, P.C. in the form represented by Exhibit A of Plaintiffs’ complaint, i.e. with a statement that a principal balance is $ “x,” plus other items which are not given a dollar amount;

b. On or after January 7, 1998 (one [*4] year prior to the filing of this action);

c. In connection with attempts to collect a residential mortgage loan on property located at the same address to which the letter is sent; and

d. Which letters were not returned by the Postal Service.

Christine here: If you have questions about joining in this lawsuit, you should call the law firm, which should be available from the link to their site above.

DISCLAIMER:

****CHRISTINE SPRINGER IS NOT A LICENSED ATTORNEY. THIS BLOG IS COMPRISED OF HER OPINIONS, OBSERVATIONS AND INTERPRETATIONS AND IS NOT INTENDED TO BE CONSTRUED AS LEGAL ADVICE. PLEASE CONSULT WITH AN ATTORNEY BEFORE RELYING ON OR TAKING ANY ACTION BASED ON THE INFORMATION IN THIS BLOG.****

Source: ForeclosureIndustry.com

Posted in foreclosure fraudComments (11)


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