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INDEX NO. 067753/2014FILED: SUFFOLK COUNTY CLERK 0970272015 09:59 AMNYSCEF DOC. NO. 72 RECEIVED NYSCEF: 09/02/2015 SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF SUFFOLK anne eK AFFIRMATION IN WELLS FARGO BANK, NATIONAL ASSOCIATION, AS OPPOSITION TO TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST, PLAINTIFF’S CROSS SERIES 2004-OPTI, ASSET BACKED PASS-THROUGH MOTION FOR CERTIFICATES, SERIES 2004-OPTI, SUMMARY JUDGMENT AND IN SUPPORT OF Plaintiff, DEFENDANT’S MOTION TO DISMISS -against- PLAINTIFF’S COMPLAINT KWAME BOAKYE-YIADOM; SLOMINS, INC.; UNIVERSITY OF PENNSYLVANIA; DIRECT Index #: 067753/2014 MERCHANTS; PALISADES ACQUISITION, XVII, LLC, ASSIGNED TO “JOHN DOE #1” through “John Doe #12,” the last HONORABLE twelve names being fictitious and unknown to the plaintiff, JOSEPH C. PASTORESSA the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or Return Date claiming an interest in or lien upon the premises, September 9, 2015 described in the complaint, Defendants. en mene nemen enn K Carlos R. Clavel, being an attorney, duly admitted to practice law before the courts of the State of New York, hereby affirm the following. 1 Tam an associate with Siben & Siben, LLP, the attorneys for Kwame Boakye Yiadom. 2 Iam fully familiar with the facts and circ*mstances herein based on conversations with the defendant as well as a review of the documentation on our file and the court documents I obtained. 3 The defendant Kwame Boakye-Yiadom requests that the Court: (a) deny the plaintiff's cross motion for summary judgment and accordingly deny the order of reference; (b) grant the defenses raised in the answer; (c) dismiss the plaintiffs action for lack of jurisdictionunder CPLR § 3211 (a)(8), lack of jurisdiction under CPLR § 308 (2), lack of standing pursuant toCPLR § 3211 (a)(3), dismissal for failure to state a cause of action under CPLR 3211 (a)(7); (@)denial of the plaintiff's request for a Referee and an Order that the sale of the property cannot bedone; and (e) for such other further and different relief as that Court deems just and proper. 4 In the alternative, the property is owner occupied and the Court should schedule asettlement conference in accordance with CPLR § 3408. The plaintiff has brought this motionseeking summary judgment and an order of reference in this residential mortgage foreclosureaction. The defendant previously submitted an Answer dated November 14, 2014. THE COURTSHOULD NOTE that a settlement conference was in fact held on June 22, 2015 the matter was onlyreferred to I.A.S. because the bank represented that over $800,000.00 was owed on the mortgage. Intheir opposition papers they now allege that in paragraph 13, the defendant owes to the plaintiff$481,564.51 plus interests, late charges and advances. It is respectfully submitted that if this Courtdoes not dismiss this action for lack of service, that it should schedule a settlement conference. LACK OF JURISDICTION 5 Here, service upon a suitable age person was improper as plaintiff failed to serve aperson of suitable age and discretion at the actual place of business, dwelling place or usual place ofabode of the person to be served. CPLR §308(2) provides that service has to be the actual dwellingplace or the usual place of abode of the person to be served. The defendant’s affidavit states thatneither he nor a suitable age person was ever served with a copy of the summons at his dwellingplace or usual place of abode 396 North Service Road, Manorville, New York 11949. Rather theplaintiff's process server served a copy of the summons and complaint to an unknown individualwho the process server unreasonably and falsely assumed was the defendant’s wife located at 40Lincoln Road, Apt. 3H, Brooklyn, New York 11225. The defendant clearly stated that he adamantlydenied ever living, residing or knowing anyone who resides at 40 Lincoln Road, Apt. 3H, Brooklyn,New York 11225; that he was never married and therefore does not know the individual describedin the Affidavit of Service as being a female that is Black with Black Hair age 50 and standing 5S’ 7”with weight of 150 Ibs. A copy of the plaintiff's Affidavit of Service dated October 14, 2014 isannexed hereto as Exhibit “A”. 6 The defendant resides at 396 North Service Road, Manorville, New York 11949.These premises are occupied by the defendant and are not vacant. The affidavit of service datedJanuary 21, 2015 stated that only one attempt was made on January 21, 2015 at 6:30 pm to serve thedefendant. Because service was not properly effectuated upon the defendant the plaintiff withoutany other proof simply claimed that the property was vacant when in fact said property is a premisesoccupied by the defendant as his residence. A copy of the plaintiff's Affidavit of Service datedJanuary 21, 2015 is annexed hereto as Exhibit “B”. The Index Number was purchased onSeptember 23, 2014. 120 days ended on January 21, 2015. THE COURT SHOULD NOTE that theaffidavit of service shows a mailing made on January 22, 2015 which would be past the 120 days toeffectuate service. Therefore, even this attempt at service in January 22, 2015 is improper and doesnot cure plaintiff's improper service. 7. In the defendant, Kwame Boakye-Yiadom’s, Affidavit dated January 10, 2015 hestated in paragraph 4 that, “...the process server mistakenly served a copy of this summons andcomplaint on October 14, 2014 to an unknown individual who the process server unreasonablyassumed was his wife located at 40 Lincoln Road, Apt. 3H, Brooklyn, New York 11225. Theprocess server then claims to have mailed a copy of that summons and complaint to that address 40Lincoln Road, Apt. 3H, Brooklyn, New York 11225. I most adamantly deny ever living or residingat that address 40 Lincoin Road, Apt. 3H, Brooklyn, New York 11225. Also, I do not know anyonewho resides at that address. Additionally, I have never been married and therefore I do not have awife. I do not know of any individual as described in the Affidavit of Service as being a female thatis Black with Black hair age 50 and standing 5’ 7” with weight of 150 Ibs.” 8 This court should dismiss the plaintiff's summons and complaint based on lack ofjurisdiction due to improper service, lack of standing, failure to state a cause of action and anyother such different and further relief as this court deems just and proper. THE COURT SHOULD DENY THE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 9 The plaintiff has now brought this motion seeking summary judgment against thedefendants and an order of reference. The plaintiff has submitted the affidavit of Richard Work,vice president of Ocwen Loan Servicing, LLC, the servicer for the plaintiff herein, sworn to onJanuary 27, 2015, and the affirmation of plaintiff's counsel, dated February 2, 2015, together withexhibits attached thereto in support of the motion. The plaintiff contends that the defendantsdefaulted in making payments under the terms of the mortgage and that subsequent thereto allamounts due under the note and mortgage was accelerated. Further, the plaintiff argues that thepapers submitted in support of the motion are sufficient to make a prima facie showing ofentitlement to summary judgment against the defendants and an order of reference in thisforeclosure action.10. The defendants oppose the plaintiff's motion for summary judgment and assert thattheir Answer which sought dismissal of the plaintiff's complaint should be granted. ll. The defendants also contend that the plaintiff's motion should be denied on theground that the plaintiff's motion for summary judgment is premature and that they should beallowed discovery on the status of the plaintiff as the holder of the note and mortgage and thevalidity of the purported assignments. The defendant claims that the papers submitted in support ofthe plaintiff's motion are not sufficient to establish the plaintiff's standing to bring this foreclosureaction. The defendant questions whether the affidavit submitted by Richard Work is sufficient sincethe record indicates that he is an employee of Ocwen Loan Servicing, LLC, rather than the plaintiff,and they argue that it is unclear whether he has personal knowledge of the facts. The defendant alsopoint out that the assignment of mortgage to the plaintiff and the allonge to the underlying notemade by Option One Mortgage transferring the note to the plaintiff were executed by differentindividuals. But that the power of attorney documents purporting to grant said individuals theauthority to execute same have not been provided by the plaintiff. 12. Summary judgment is a drastic remedy, but may be awarded when no issues of factexist, (see, CPLR 3212 [b]; Andre v. Pomeroy, 35 N.Y.2d 361, 364, 320 N.E.2d 853, 362 N.Y.S.2d131 (Ct. App., 1974). In order to be successful on a motion for summary judgment, the movingparty must make a prima facie showing of entitlement to judgment as a matter of law by providingsufficient evidence to demonstrate the absence of any material issues of fact, Winegrad v. NewYork University Medical Center, 64 N.Y.2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 (Ct.App., 1985). Failure on the part of the moving party to make such a prima facie showing requires adenial of the motion, regardless of the sufficiency of the opposing papers, Alvarez _v. ProspectHospital, 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 (Ct. App., 1986). This burden hasnot been satisfied by the plaintiff herein. 13. However, if such a showing has been made, the burden shifts to the party opposingthe motion to produce evidence in admissible form that is sufficient to establish that material issuesof fact exist which require a trial, Alvarez _v. Prospect Hospital, supra, 68 N.Y.2d at p. 324;Zuckerman v. City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 (Ct. App.,1980). 14. First, with respect to the plaintiff's motion, the Court should find that the plaintiff hasfailed to make a prima facie showing of entitlement to summary judgment and an order of referencesince it has failed to adequately demonstrate that it has standing to bring this foreclosure action.Where, as here, the plaintiff's standing or legal capacity to sue has been challenged in the pleadings,the plaintiff must prove its standing in order to be entitled to relief, (see, U.S. Bank NationalAssociation v. Faruque, 120 A.D.3d 575, 991 N.Y.S.2d 630, 2014 N.Y. Slip Op. 05785 (2™ Dept.,2014). 15. The plaintiff must then demonstrate that it is both the holder or assignee of thesubject mortgage and the holder or assignee of the underlying note at the time the action iscommenced, (see, Kondaur Capital Corp. v. McCary, 115 AD3d 649, 650, 981 N.Y.S.2d 547, 2014N.Y. Slip Op. 01438 qa Dept., 2014). A written assignment of the underlying note or the physicaldelivery of the note prior to the commencement of the foreclosure action is necessary to transfer theobligation and the mortgage passes with the debt, U.S. Bank N.A. v. Collymore, 68 AD3d 752, 754,890 N.Y.S.2d 578, 2009 N.Y. Slip Op. 09019 (2" Dept., 2009). In this instance, the Court shouldfind that the conclusory statement contained in the affidavit of Richard Work regarding theplaintiff's possession of the note lacks any details of a physical delivery of the note and thus fails toestablish that the plaintiff had physical possession of the note prior to the commencement of theaction. (See, U.S. Bank National Association v. Faruque, supra at 633; Deutsche Bank NationalTrust Company v. Haller, 100 AD3d 680, 682, 954 N.Y.S.2d 551, 2012 N.Y. Slip Op. 07619 2"Dept., 2012); cf. Aurora Loan Servicing, LLC v. Taylor, 114 AD3d 627, 980 N.Y.S.2d 475, 2014N.Y. Slip Op. 00625 24 Dept., 2014). Moreover, to the extent that the plaintiff relies upon theassignment of mortgage and allonge documents attached to the plaintiffs motion papers to establishstanding, the Court should finds that such documentary evidence is insufficient since it does notinclude a copy of the power of attorney or instrument granting authority for any of the documentsthat were executed by an attorney-in-fact or authorized agent. (See, Deutsche Bank National TrustCompany vy. Haller, supra at 682). 16. The plaintiff has not established a prima facie entitlement to a judgment offoreclosure as a matter of law. Accordingly, the Court should dismiss the summary judgmentmotion and the order of reference should not be granted. 17. The Answer submitted by the defendant in response to the Plaintiff's complaintdated November 19, 2014 in which the affirmative defenses requesting dismissal were timely raisedincluding but not limited to: 1. lack of jurisdiction under CPLR §3211 (a)(8) because the Courtlacks jurisdiction of the person of the defendant; 2. CPLR §308 (2) seeking dismissal of thecomplaint for lack of jurisdiction; and 3. Dismissal of the Plaintiff's complaint for failure to state acause of action under CPLR §3211 (a)(7). A copy of the defendant’s Answer is annexed hereto asExhibit “C”. Wherefore, your affirmant respectfully requests, this court dismiss the plaintiff's crossmotion for summary judgment, dismiss the summons and complaint based on lack of jurisdictiondue to improper service, lack of standing, failure to state a cause of action and any other suchdifferent and further relief as this court deems just and proper.Dated: September 1, 2015 Bay Shore, New York LeCarlos R. Clavel .SUPREME COURT : STATE OF NEW YORKCOUNTY OF SUFFOLK— —.WELL FARGO BANK, NATIONAL ASSOCIATION, ASTRUSTEE FOR CITIGROUP. MORTGAGE LOAN TRUST,SERIES 2004-OPTI, ASSET BACKED PASS-THROUGHCERTIFICATES, SERIES 2004-OPTI, Plaintiff, -against-KWAME BOAKYE-YIADOM; SLOMINS, INC.;UNIVERSITY OF PENNSYLVANIA; DIRECTMERCHANTS; PALISADES ACQUISITION,XVII, uc,“JOHN DOE #1” through “John Doe #12,” the lastTwelve names being fictitious and unknown to thePlaintiff, the persons or parties intended being theTenants, occupants, persons or corporations, if any,Having or claiming an interest in or lien upon thePremises, described in the complaint, Defendant. LT AFFIRMATION IN OPPOSITION To PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT SIBEN & SIBEN, LLP Attorneys for Defendant, KWAME BOAKYE-YIADOM 90 East Main Street Bay Shore, NY 11706 (631) 665-3400— SS ATO: Siignature (Rule 130-1.1a)ATTORNEY(S):FOR: Lo fh SIBEN & SIBEN, LLPService of a copy of the withinDated,is héreby admittedNOTICE OF SETTLEMENT NOTICE OF ENTRYSir: Please take notice that an order Sir: Please take notice that theof which the within is a true copy within is a (certified) true copy of awill be presented to the duly entered. in the Office of the one of the Judges of the Clerk of the within Supreme Courtwithin. named. court, .on Suffolk County, named Court onthe day of at the day. of , 2010aMTo: To:
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U.S. Bank Trust, N.A. vs. Sells
Jul 16, 2024 |22CV-0200669
U.S. BANK TRUST, N.A. VS. SELLSCase Number: 22CV-0200669Tentative Ruling on Order to Show Cause Re Dismissal: An Order to Show Cause ReDismissal (hereinafter “OSC”) issued May 31, 2024, to Plaintiff’s Counsel for failure to submit aproposed judgment as ordered on September 25, 2023. Counsel has submitted a response to theOSC Re: Dismissal, and a Request to Vacate an Order of Sanctions that was made by JudgeBoeckman on May 28, 2024.The Court declines to vacate its May 31, 2024 Order imposing sanctions. That issue is not properlybefore the Court. That order was issued by another judge and Counsel failed to appear at thehearing on that matter.A proposed judgment was lodged with the Court on June 24, 2024. However, the Court notes thatthe proposed judgment identifies two street addresses for the subject property, each of which aredifferent from the street address identified in the Request for Court Judgment by Default. TheCourt needs further clarification as to the correct address. The ‘correctness’ of the judgment isnot at issue in the instant OSC. Only the failure to timely provide the Court with a proposedjudgment is at issue in this hearing. Having reviewed counsel’s declaration, the Court finds goodcause to vacate the instant OSCThe Court confirms today’s review hearing set for 9:00 a.m.****************************************************************************** 9:00 a.m. Review Hearings******************************************************************************
Ruling
Eckelman, et al. vs. OLCO, Inc
Jul 17, 2024 |23CV-0202690
ECKELMAN, ET AL. VS. OLCO, INCCase Number: 23CV-0202690This matter is on calendar for review regarding status of the case and trial setting. The Court designates thismatter as a Plan II case and intends to set the matter for trial no later than January 22, 2025. The parties areordered to meet and confer prior to the hearing regarding proposed dates for trial. An appearance is necessaryon today’s calendar.
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U.S. Bank National Association, Not In Its Individual Capacity, But Solely As Indenture Trustee For Legacy Mortgage Asset Trust 2019-Gs7 v. Harry A. Antario A/K/A HARRY ANTARIO A/K/A HARRY A. ANTARIO, SR., United States Of America - Department Of The Treasury - Internal Revenue Service, Fia Card Services, N.A., Tribeca Asset Management, Llc, Capital One Bank, Midland Funding Llc D/B/A In New York As Midland Funding Of Delaware Llc A/S/I/I To A Chase Account, Fhs Hair Club Of Hauppauge, Inc., People Of The State Of New York O/B/O Town Supervisor, Town Of Islip, New York State Department Of Taxation And Finance, Joyce Brown
Mar 03, 2020 |Thomas Whelan |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |603995/2020
