`
`At an IAS Part 2 of the Supreme Court of the State
`of New York, held in and for the County of Queens
`at the Court House located at 88-11 Sutphin Blvd,
`Jamaica, New York on the “ day of September
`2017
`
`Present: Honorable Allan B Weiss,
`Justice
`---------------------------------------------------------------------X
`
`Index # 701532/2015
`
`WELLS FARGO BANK NATIONAL
`
`ASSOCIATION,
`
`Plaintiff,
`
`-- against --
`
`ORAL ARGUMENT
`
`REQUESTED
`
`ORDER TO SHOW
`
`CAUSE
`
`SHAJU MIAH, et al,
`
`Defendants.
`_____________________________________________________________________X
`
`SIR:
`
`PLEASE TAKE NOTICE, that upon the Affirmation of Craig Saunders, Esq.,
`
`affirmed on September 21, 2017, the affidavit of SHAJU MIAH, sworn to on the 21 st day
`
`of September 2017, the consent to change attorney of SHAJU MIAH, dated September
`
`21, 2017, and upon the exhibits annexed hereto and made a part hereof, and upon all the
`
`papers and proceedings heretofore filed and had herein;
`
`LET Plaintiff show cause before me or one of the Judges of this Court at a Motion
`
`Term of the Supreme Court of the State of New York, at The Central Compliance Part
`
`room 25 thereof, to be held at the Courthouse located at 88-11 Sutphin Blvd, Jamaica,
`
`New York, County of Queens, City and State of New York, on the
`
`day of October
`
`
`
`2017, at 2:15 o’clock in the afternoon of that day, or as soon thereafter as counsel can be
`
`heard, WHY an Order should not be entered as follows:
`
`1.
`
`Restoring the prior Order to Show Cause, listed in the Court’s record as
`
`“RESTORE TO CALENDAR” to the calendar of this Court, which was
`
`“MARKED OFF” by this Court on March 23, 2017;
`
`2.
`
`Granting a stay of the transfer of the deed for the foreclosure of sale of 74-30
`
`Woodside Avenue pending the hearing and determination of this motion; and
`
`it is further
`
`ORDEREED that pending the hearing and determination of this motion let Plaintiff or
`
`agents ofsame be stayed from taking any action to enforce the foreclosure judgment
`
`sought to be dismissed in the underlying action.
`
`SUFFICIENT, cause appearing therefore, let service of a copy of this Order
`
`together with the papers upon which it is based upon by personal service or overnight
`
`upon Alexander Phengsiaroun, Esq. of Shapiro, Dicaro & Barak, LLC, attorney for
`
`Plaintiff, Wells Fargo Bank, 175 Miles Crossing Blvd, Rochester, New York 14624 and
`
`the referee on or before the
`
`day of
`
`2017 be deemed good and
`
`sufficient service.
`
`ENTER
`
`J.S.C.
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`---------------------------------------------------------------------X
`WELLS FARGO BANK NATIONAL
`ASSOCIATION,
`
`Plaintiff,
`
`Index # 701532/2015
`
`—- against --
`
`AFFIRMATION IN
`SUPPORT OF
`
`MOTION TO
`
`DISMISS
`
`SHAJU MIAH, et a1,
`
`Defendants.
`_____________________________________________________________________X
`
`Craig Saunders, Esq. an attorney duly authorized to practice law before the Courts
`
`of the State of New York, hereby affirms the following to be true, pursuant to CLPR §
`
`2106 and under penalty of perjury.
`
`1.
`
`I am the incoming attorney of record for defendant Shaju Miah and am
`
`familiar with the facts and pleadings of this matter. I submit this affirmation in
`
`V support of the instant motion for an Order:
`a. Restoring the prior Order to Show Cause (attached hereto as Exhibit “A”),
`
`listed in the Court’s record as “RESTORE TO CALENDAR” to the
`
`calendar of this Court, which was “MARKED OFF” by this Court on
`
`March 23, 2017;
`
`b. Granting a stay of the transfer of the deed for the foreclosure of sale of 74-
`
`30 Woodside Avenue pending the hearing and determination of this
`
`mOtion.
`
`
`
`
`
`STATEMENT OF FACTS
`
`2. The relevant statement of facts is contained in the within Order to Show Cause
`
`which was signed by the Honorable Allan B. Weiss on March 2, 2017 (e-filed
`
`document number 81 and attached hereto as Exhibit “A”). Based on the signed
`
`Order to Show Cause, it is indisputable that Judge Weiss found sufficient merit to
`
`grant defendant Miah’s application.
`
`. On March 23, 2017, the Order to Show Cause was “marked off” the calendar.
`
`Prior counsel has advised me that she never appeared before Judge Weiss and was
`
`unaware it was marked off the calendar until she was advised of the pending sale.
`
`I contacted opposing counsel, Alexander Phengsiaroun, Esq., who advised me that
`
`both he and Ms. Hercules appeared on March 23, 2017, but that Ms. Hercules did
`
`not have a working copy of her motion papers and as such, the Order to Show
`
`Cause was marked off the calendar. Ms. Hercules disputes this account.
`
`. A motion to restore only requires a minimal showing of the potential merit of the
`
`cause of action. Enax v. New York Telephone Company, 280 A.D.2d 294, 295
`
`(1St Dept. 2001). It is respectfully submitted that the only reason that the Order to
`
`Show Cause was marked off the calendar was due to due law office failure of Ms.
`
`Hercules. Law office failure (People’s United Bank v. Latini Tuxedo
`
`Management, LLC, 95 A.D.3d 1285, 1286, 944 N.Y.S.2d 909, 910 (2nd Dept.
`
`2012)) is a reasonable excuse for having this matter restored to the active
`
`calendar. Courts have consistently recognized that law office failure may
`
`constitute a reasonable excuse as a grounds on a motion to restore. Bischoff v.
`
`
`
`Hoffman, 112 A.D.2d 659, 660 (2nd Dept. 2013); Kaufman v. Bauer, 36 A.D.2d
`
`481, 483 (1St Dept. 2007) Further, the Second Department has repeatedly held that
`
`a party should not be deprived of his day in court. See Ubaydov v. Kenny’s Fleet
`
`Maintenance, Inc., 817 N.Y.S.2d 518, 519 (2“d Dept. 2006); O’Loughlin v.
`
`Delisser, 788 N.Y.S.2d 860 (2nd Dept. 2005); also Burgess v. Brooklyn Jewish
`
`l—I_o_sp_., 707 N.Y.S.2d 462 (2nd Dept. 2000); Joseph T. Ryerson & Son, Inc. V.
`
`Egtitg, 519 N.Y.S.2d 947, 948 (2nd Dept. 1987); Katz v. Knoesel Service Center,
`
`13$, 499 N.Y.S.2d 107 (2nd Dept. 1986). There is no reason why defendant
`
`should not have the opportunity to defend this action. It is his belief that the
`
`statute of limitations has run and he plans on Vigorous defending this action. As
`
`such, the relief being sought is restoring the signed March 12, 2017 Order to
`
`Show Cause to the calendar so that it could be argued.
`
`successful he would own outright the real property in question. If not, he would
`
`have paid off the mortgage. In no event did he plan on losing the property. He
`
`also has absolutely no intent of abandoning this matter.
`
`6. Attached as Exhibit “D” is the requisite notice letter to opposing counsel since a
`
`stay is being requested.
`
`7. Prior counsel advises that on Tuesday of last week (September 19, 2017) she
`
`brought an Order to Show Cause seeking different relief which was denied by
`
`Judge Weiss.
`
`
`
`WHEREFORE, counsel respectfully request that this motion be granted in its
`
`entirety and the Court enter an order:
`a. Restoring the prior Order to Show Cause (attached hereto as Exhibit
`
`“A”), listed in the Court’s record as “RESTORE TO CALENDAR” to the
`
`calendar of this Court, which was “MARKED OFF” by this Court on
`
`March 23, 2017;
`
`b. Granting a stay of the transfer of the deed for the foreclosure of sale
`
`of 74-30 Woodside Avenue pending the hearing and determination of this
`
`motion.
`
`c.
`
`Such other and further relief as this Court deems just and proper.
`
`Affirmed this 21 st day of September, 2017
`
`
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`
`---------------------------------------------------------------------X
`WELLS FARGO BANK NATIONAL
`ASSOCIATION,
`
`Plaintiff,
`
`Index # 701532/2015
`
`—- against --
`
`AFFIDAVIT IN
`
`SUPPORT OF
`
`MOTION TO
`RESTORE
`
`SHAJU MIAH, et al,
`
`Defendants.
`
`_____________________________________________________________________X
`STATE OF NEW YORK}
`} ss:
`_}
`
`COUNTY OF KINGS
`
`SH‘AJ'U MIAH, being duly sworn deposes and says:
`
`1.
`
`I am one of the Defendants named in the above captioned matter; and as such 1 am fully
`
`familiar with the facts and circumstances heretofore had herein.
`
`2.
`
`I' submit this affirmation in support of the instant motion for an Order:
`
`21. Restoring the Original Order to Show Cause to the calendar;
`
`b. Granting a Preliminary Injunction, staying the transfer of the deed for the
`
`foreclosure sale ot‘74—3O Woodside Avenue;
`
`3. As the court can see, I have now discharged prior counsel for cause and retained the firm
`
`of Munzer & Saunders= LLP. Consent to change Attorney annexed as Exhibit “8”).
`
`4. Unbeknownst to me, my prior attorney after preparing the papers for the Order to Show
`
`Cause, on which this court granted a stay pending the hearing of that motion, allowed
`
`
`
`the case to be marked off the calendar on March 23, 2017 (Copy of “e-courts
`
`document annexed as Exhibit "C”). My outgoing attorney was either unaware that
`
`the matter had been “MARKED OFF” or intentionally misled me by advising me that
`
`we were waiting for a decision.
`
`5. Not until I leamed oi“ the Referee scheduling a sale and calling another attorney did 1
`
`ultimately become aware that in fact my prior lawyer was mistaken or had misled. me.
`
`6.
`
`I beg the court to allow me n opportunity for a decision on the merits and request that the
`
`prior Order to Show Cause be restored to the calendar and given a date for oral
`
`argument and that pending that hearing all further actions be st” yed.
`
`WHEREFORE, It is respectfully submitted that the instant application be granted in all respects.
`
`Sl—lAJ U MIAl-l
`
` "
`=
`' 0W“ ' ::2z
`Notary ghetto. State ofNew York
`No amamsrzaz
`m Queens County
`Gammon ExptredW04. 2018
`
`
`
`
`
`EXHIBIT “A”
`
`
`
`MYW”
`
`of the Supreme
`At an IAS,~El‘-rial‘“ferm Part
`Court of the State of New York, held in and for the
`
`
`
`
`
`
`FILE:
`)
`UEENS COUNTY CLERK 03m2017 10:03 AM
`
`
`NYSCE'
`. No. 81
`5‘3 ‘9‘” w W"
`
`INDEX NO. 701532/2015 V
`
`RECEIVED NYSCEF: 03/07/2017
`
`mewwe” "
`QEQHE- 4‘
`()‘f‘bywt, LWMCEATAYLfiyoSUtPhinBlvdZ éellrglaica,New YorkontheZA
`p8} ”“9 new ALLAN a wees“- M
`
`County of Queens at the Court House located at 88—
`
`Justice
`
`---------------------------------------------------------------------x
`
`Index # 701532/2015
`
`WELLS FARGO BANK NATIONAL
`
`ASSOCIATION,
`
`annm
`
`-- against --
`
`SHAJU MIAH, et al,
`Defendants.
`----—--—-----—---——~--—-—-----—----.--—-------------—---—-—--——---v-7{
`$R
`
`‘
`
`'
`
`-
`ORALARGUENT
`REQUESTED
`
`ORDERTO
`
`SHOW CAUSE
`VHTHTRO
`
`p i L @
`b
`”4"
`c:
`’9 "-,>'éQ7’}, ,
`‘méng§¥Em(
`
`UN”,
`
`PLEASE TAKE NOTICE, that upon the annexed affirmation of Anyekache
`
`Hercules, Esq. dated the 24 day of February 2017, the affirmation of Shaju Miah dated 27
`
`day of February, 2017, the exhibits annexed thereto and upon all of the papers and
`
`pleadings herein:
`
`urt at a
`LET Plaintiffshow cause before me or before one ofthe Judfgwofthis
`Motion Term ofthe Supreme Court ofthe State ofNew York, atgart"__, room 9‘ 5?.
`thereof, to be held at the Courthouse located at 88-11 Sutphin Blvd, Jamaica, New York,
`” l
`County ofQueens, Cityand State ofNewYork, onthemay ofMarch 2017, @990. 2 5"
`oclockinmm ofthat day, or as soon thereafter as counsel can be heard,
`
`lof2
`
`3V5
`R
`
`
`
`
`
`
`
`‘No. 81 RECEIVED NYSCEF: 03/07/201W
`
`UEENS COUNTY CLERK 03m2017 10:03 AM
`
`INDEX No. 701532/2015
`
`l.
`
`2.
`
`3.
`
`4.
`
`WHY an Order should not be entered,:
`
`Restoring the matter to the calendar;
`
`Vacating the Judgment of Foreclosure and sale and the Order of Reference
`
`because they were issued based on false and misleading information and the
`
`judgment amount is incorrect;
`
`Vacating the notice of Pendency;
`
`Dismissing the instant action in its entirety with prejudice because the Plaintiff is
`
`barred by the statue of limitation and lacks standing to maintain this action; and
`
`5.
`
`Staying enforcement of the Judgment pending the Defendant’s appeal.
`
`Q/
`
`ORDERED, thatpending the hearing ofthismotion, let Plaintifforagents of
`
`same be stayed from enforcing the judgment herein.
`
`SUFFICIENT, cause appearing therefore, let service of a copy of this Order
`
`together with the papers upon which it is based upon by personal service or overnight
`
`delivery upon Alexander Phengsiaroun, Esq. of SHAPIRO, DICARO & BARAK, LLC,
`W
`
`.
`
`attorney for Plaintiff, Wells Fargo Bank, 175 Miles Crossing Blvd, Rochester, New York
`
`WW 14624,\on orbefo‘i‘tetheE day ofMarch2017 bedeemedgood and sufficientservice.
`WW ,2017
`,
`thfia
`
`Dated: New York, New York
`
`ENTER
`
`' Efren
`
`.
`
`l7
`
`06w
`0053~gycgbfifik
`
`7},
`
`20f2
`
`
`
`
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF QUEENS
`--------------------------------------------------------------------X
`
`Index # 701532/2015
`
`WELLS FARGO BANK NATIONAL
`
`ASSOCIATION,
`
`Plaintiff,
`
`—- against ~—
`
`SHAJ U MIAH, et a1,
`
`Defendants.
`
`_____________________________________________________________________X
`
`STATE OF NEW YORK}
`}- ss:
`}
`
`COUNTY OF KINGS
`
`SI-lAJ U MIAH, being duly sworn deposes and says:
`
`AFFIDAVIT IN
`
`SUPPORT OF
`MOTION TO
`DISMISS
`
`l.
`
`I. am one of the Defendants named in the above captioned matter, and I have
`
`personal knowledge of and I am familiar with the facts and circumstances
`
`stated herein except forthat which is stated upon information and belief and
`
`as to those. I believe them to be true.
`
`2.
`
`I submit this affirmation in support of the instant motion for an Order:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`Restoring the matter to the calendar;
`
`Staying enforcement of the Judgment pending the Defendant’s appeal;
`
`Vacating the Order of Reference and Judgment of Foreclosure and Sale
`
`because they were based on false and misleading infomintion;
`
`Vacating the notice of Pendency; and
`
`Dismissing the instant action in its entirety for lack of standing with
`
`prejudice.
`
`
`
`
`
`3.
`
`On August 29, 2008, Plaintiff’s predecessor Aurora Loan Services, LLC
`
`commenced it’s first action to foreclosure a mortgage on 74-30 Woodside
`
`Avenue, Elmhurst, New York by filing a Summons and complaint under
`
`index number 2185112008. At some point in time prior to commencing the
`
`foreclosure action under index number 2185112008. Plaintiffs predecessor,
`
`Aurora Loan Services; LLC elected to elected and declared the unpaid
`
`principle on the Note and Mortgage immediately due and payable.
`
`4.
`
`At no point in time did I modify or reinstated the subject. Nor have l make a
`
`payment on the mortgage since the bank started foreclosure proceeding in
`
`2008.
`
`WHEREFORE, deponent respectfully request that this motion be granted in its
`
`entirety and the Court enter an order:
`
`a.
`
`b.
`
`b.
`
`c.
`
`d.
`
`Restoring the matter to the calendar;
`
`Staying enforcement of the Judgment pending the Defendant’s appeal;
`
`Vacating the Order of Reference and. Judgment of Foreclosure and Sale
`
`because they were based on false and misleading information;
`
`Vacating the notice of Pendency; and
`
`Dismissing the instant action for lack of standing with prejudice.
`
`
`
`SHAH} MlAH
`
`Sworn to before me this
`
`day of February 2017
`
`NOTARY PUBLIC
`
`
`
`
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF QUEENS
`--------------------------------------------------------------------X
`WELLS FARGO BANK NATIONAL
`
`ASSOCIATION,
`
`Plaintiffi
`
`Index # 70153212015
`
`-- against -.
`
`AFFIRMATION IN
`SUPPORT OF
`ORDER TO
`SHOW CAUSE
`
`SHAJU MIAH, et a],
`
`Defendants.
`_____________________________________________________________________x
`
`Anyekache Hercules, Esq. an attorney duly authorized to practice law before the
`
`Courts of the State of New York, hereby affirms the following to be true. pursuant to
`
`CL'PR § 2106 and under penalty of perjury.
`
`l.
`
`I am the attorney for defendant Shaiu Miah and am fully familiar with the facts
`
`and pleadings of this matter.
`
`I submit this affirmation in support of the instant
`
`motion for an Order:
`
`a.
`
`b.
`
`Restoring the matter to the calendar;
`
`Vacating the Judgment of Foreclosure and Sale and the Order of
`
`Reference because they were based on false and misleading information
`
`and thejudgment amount is inaccurate;
`
`e.
`
`Vacating the notice of Pendency;
`
`d.
`
`Dismissing the instant action in its entirety with prejudice because the Plaintiff is
`
`barred by the statue of limitation and lacks standing to maintain this action and
`
`
`
`
`
`staying enforcement of the foreclosure judgment pending the Defendant’s appeal.
`
`h)
`
`On February 18, 2015, Plaintiff commenced this action to foreclosure a mortgage
`
`on 74-230 Woodside Avenue, Elmhurstr New York 11373 by filing the Summons
`
`and complaint in the instant action along with a Notice of I’endency. Annexed
`
`hereto as Exhibit A is a true. and accurate copy of the Complaint without
`
`exhibits.
`
`, On July 31, 2015, Plaintiff wrongfully obtained the signature of one of the Judge
`
`Allan B. Weiss on an Order of Reference by presenting false and misleading
`
`information to the Court. Annexed hereto as Exhibit B is a true and accurate
`
`cupy of the Order of Reference. On December 6. 2016, Plaintifi“ wrongfully
`
`obtained the signature ol‘ludge Allan B. Weiss on 8, Judgment of Foreclosure and
`
`Sale by presenting false and misleading information to the Court. On January 24.
`
`2017 counsel was served with Notice of Entry of the Judgment of Foreclosure and
`
`Sale. Annexed hereto as Exhibit C is a true and accurate copy of the Notice
`
`of Entry for the Judgment of Foreclosure and Sale. Defendant, Shaju Miah,
`
`timely filed a notice of appeal and said appeal is pending. Annexed hereto as
`
`Exhibit D is a true and accurate copy of the Defendant’s Notice of Appeal
`
`From the very onset of this matter the Plaintiff has been presenting false and
`
`misleading information to this court. More specifically the l’laintiff ‘s Complaint
`
`states that the last installment due and paid was March 1. 2009 and the date of the
`
`first unpaid installment default date is April
`
`1, 2009.
`
`See Schedule C of
`
`Plaintiff‘s Complaint. Upon information and belief. Defendant’s last installment
`
`due and paid was October l. 2008 and the date of the first unpaid installment
`
`
`
`
`
`default date is November 1., 2008 see paragraph 7 of foreclosure complaint
`
`brought by Plaintiff’ s predecessor Aurora Loan Services, LLC under index
`
`number ”661/2009, a true and accurate copy of which is annexed hereto as
`
`Exhibit E In yet another prior foreclosure action commenced against Defendant
`
`Shaju Miah by Plaintiff‘s predecessor Aurora Loan Services, LLC under index
`
`number 2185112008 Aurora Loan Services indicated that the last installment due
`
`and paid by Defendant Shaiu Miah was March 1, 2008 and the date of the first
`
`unpaid installment default date is April I. 2008. see paragraph 7 of the complaint
`
`filed under index number 2l851/2008. A true and accurate copy of the
`
`complaint
`
`filed in Queens County under index number 2185112008 is
`
`annexed hereto as exhibit F.
`
`The 2008 complaint states that
`
`the unpaid
`
`principle sum of the note was $596,812.31 while the 2009 complaint states that
`
`the unpaid principle sum of the note was $495,700.81
`
`Counsel suspect that the dates stated in Plaintiff‘s complaint was utilized to bring
`
`Plaintiff within the Statue of Limitation and further allow Plaintiff to pursue this
`
`action.
`
`CPLR § 213, provides, inter alia: "the lbllowing action must be commenced
`
`within six years:
`
`* * 5k
`
`An action upon a bond or note. the payment of which is secured by a
`4.
`mortgage upon real property, or upon a bond or note and mortgage so secured, or
`upon a mortgage of real property. or any interest therein.
`
`$53!)?
`
`
`
`
`
`7. Plaintiff commenced this action on February 18, 2015. Thus, in order to come
`
`within the statue of limitation and be able to pursue the instant action the
`
`mortgage payments cannot have been accelerated and made fully due prior to
`
`February 18, 2009. On the surface or at first glance it looks like Plaintiff comes
`
`within the statue of limitation and has the ability to pursue this action. However
`
`when one takes a closer look they will realize that the Plaintiff‘s action is barred
`
`by the statue of limitation.
`
`Schedule D of the Plaintiff’s complaint states "The instrument being foreclosed
`
`herein is a Mortgage dated April 16,2007, executed by Shaju Miah. as
`
`Mortgagor(s) to Mortgage Electronic Registration System. Inc. as nominee for
`
`Resmae Mortgage Corporation, as Mortgace. to secure the sum of $600,000.00,
`
`and recorded in the Queens County Office of the City Register on May 1, 2007, at
`
`CRFN 2007000225477.
`
`"l”‘he Note and Mortgage were transferred from Mortgage
`
`Electronic Registration System, Inc... as nominee for Resmac Mortgage
`
`Corporation to Aurora Loan Services LLC....... The Note and Mortgage were
`
`subsequently transferred to Wells Fargo Bank, National Association. Annexed
`
`hereto as Exhibit C and H respectively is a true and accurate copy of the
`
`assignment from MERS to Aurora and Aurora to Wells Fargo Bank.
`
`. Assuming that Plaintiff's chain of ownership is accurate (which Counsel is in no
`
`way shape or form conceding), Plaintiff would be bounded by its predecessors’
`
`action. On August 29, 2008, Plaintiff‘s predecessor, Aurora Loan Services, LLC
`
`commenced a Foreclosure action in Queens County Supreme under index number
`
`218511008 entitled Aurora Loan Services, LLC. v. Shaju Miah et al. to
`
`
`
`
`
`
`
`foreclosure the very same mortgage that is the subject of this action. Annexed
`
`hereto as Exhibit F is a true and accurate copy of the Complaint filed in
`
`Queens County Supreme Court under index number 21851/2008 without
`
`exhibits.
`
`10.
`
`In accordance with Paragraphs 7 and paragraph 8 of the Complaint under index
`
`number 21851/2008, after Shaju Miah failed, neglected or refused to comply with
`
`the provisions of the Note and Mortgage by failing to make and pay the
`
`installment of principal and interest due and owing on April 1, 2008 and thereafter
`
`causing Plaintiff‘s predecessorl Aurora Loan Services, LLC to elect to declare the
`
`unpaid principle sum of the Note and Mortgage in the amount ot‘SS96,812.3 'l
`
`with accrued interest at 9.3% per annum from March 1, 208 to he immediately
`
`due and payable. While counsel is unaware of the date that Plaintiff" s
`
`predecessor, Aurora Loan Services, LLC elected to declare the unpaid principie
`
`sum of the Note and Mortgage immediately due and payable we can safely
`
`assume it was prior to commencing the 2008 action. If we start the clock running
`
`from the date the Complaint is filed (August 29. 2008), the statue of limitation
`
`would have expired on August 29, 2014.
`
`ll.
`
`The Court’s records further reflects that. Plaintiff‘s predecessor, Aurora Loan
`
`Services, LLC commenced another Foreclosure action in Queens County
`
`Supreme under index number 116611009 entitled Aurora Loan Services, Ll..C. v.
`
`Shaju Miah et at. to foreclosure the very same mortgage that is the subject of this
`
`action. Annexed hereto as Exhibit E is a. true and accurate copy of the
`
`
`
`
`
`Complaint filed in Queens County Supreme Court under index number
`
`1 1661 l2009.
`
`12. In accordance with Paragraphs 7 and paragraph 8 of the Complaint under index
`
`number 1 1661/2009, after Shaiu Miah failed, neglected or refused to comply with
`
`the provisions of the Note and Mortgage by failing to make and pay the
`
`installment of principal and interest due and owing on "November 1, 2008 and
`
`thereafter causing Plaintiff‘s predecessor, Aurora Loan Services, LLC to elected
`
`to declare the unpaid principle sum of the Note and Mortgage in the amount of
`
`$495,700.81 with accrued interest at 9.3% per annum from October 1, 2008 to be
`
`immediately due and payable. Taking Plaintiff's predecessor‘s statement to be
`
`true it would indicate that sometime between April 2008 and May 2009. Shaju
`
`Miah. reinstated the loan by making a payment of principle in the amount of
`
`$101,111.50. The complaint in the action presently before the bench states that
`
`the unpaid principle amount is $593,647.58 which does not account for the
`
`reinstatement amount of $100000.
`
`In any event the Plaintiff either provided false
`
`information as to the amount of principle owed on the loan or when the last
`
`payment was made. Upon information and belief Defendant, Shaju Miah, never
`
`reinstated the loan and remained in default since April 2008. See affidavit of
`
`Shaju Miah dated February 27. 2017.
`
`.
`
`.3. Furthermore, Plaintiff's complaint in the instant matter supports the assertion that
`
`the mortgage was not reinstated. Pursuant to Schedule C of the Plaintiff’s
`
`complaint. the last installment due and paid was March 1. 2009 and the date of
`
`first unpaid installment/default date was April 1,2009. Schedule C further states
`
`
`
`that the principle balance is $592,647.58. lfthe mortgage was reinstated as
`
`suggested in Plaintiff’s predecessor’s” Aurora Loan Services 2009 complaint and
`
`the amount of principle due as of October 1, 2008 was in fact $495.700.81 there is
`
`no way the outstanding principle amount would increase six months down the
`
`road by over $100,000.00. Thus, Plaintiff’ s statue of limitation expired back in
`
`August of 2014 and this action is barred and dismissal with prejudice is
`
`warranted.
`
`14.
`
`Even if you assume that the Defendant reinstated the mortgage and restarted the
`
`clock for the statute of limitation purpose dismissal of the matter is still warranted
`
`because the Plaintiff does not have standing to bring the instant action. The
`
`subject mortgage was executed on April 16, 2007 and recorded on May 1, 2007 in
`
`the Office of the City Register of New York, Queens County under C RN
`
`2007000225477 in favor of Resmae Mortgage Corporation. The subject mortgage
`
`was then assigned a total oftwo times with the last assignment being on July 8.,
`
`2014 to Plaintiff.
`
`15.
`
`16.
`
`On August 17, 2009 a purported assignment dated May 1. 2009 was recorded in
`
`the Office of the City Register of New York, Queens County under CRN
`
`200900025 7048. Said purported. assignment ailegedly transferred the subject
`
`mortgage from MERS as nominee for Resmae Mortgage Corporation to Aurora
`
`Loan Services LLC.
`
`On August 4, 2014 a purported assignment dated July 8, 2014 was recorded in the
`
`Office of the City Register of New York. Kings County under CRN
`
`2014000255871. Said purported assignment allegedly transferred the subject
`
`
`
`
`
`mortgage from Aurora Loan Services LLC’ to Wells Fargo Bank National
`
`Association.
`
`17.
`
`The Instant matter should be. dismissed because the Plaintiff does not have
`
`standing. Plaintiff must have
`
`“standing” to bring this action. The Court of
`
`Appeals in Saratogg County Chamber of Commerce: lnc. v. Pataki. 100 N.Y.2d,
`
`901, 812, 798 N.E.2d 1047, 766 N.Y.S.2d 654 (2003), cert denied 540 US 1017
`
`(2—3) held that “{s]tanding to sue is critical to proper functioning of the judicial
`
`system. it is a threshold issue. if standing is denied. the pathway to the courthouse
`
`is blocked. Plaintiff who has standing, however. may cross the threshold and seek
`
`judicial redress." 1n Carper v. Nttssbaum, 36 A.D.3d 176, 181, 825 N.Y.S.2d 55
`
`(2d Dept. 2006), the court held that “[5]tanding to sue requires an interest in the
`
`claim at issue in the lawsuit that the law will recognized as a sufficient predicate
`
`for determining the issue at the litigant‘s request.”
`
`18.
`
`If a plaintiff lacks standing to sue, the plaintiff may not proceed in the action
`
`§ta_rk v. Goldberg, 297 A.D.2d 203. 204 (2d Dept. 2002) distinguished on other
`
` g, 42 A.D.3d 239, 837
`
`N.Y.S.2d 247, 2007 NY Slip Op 04626 (2d Dept. 2007).
`
`“Since standing is
`
`jurisdictional and goes to a court’s authority to resolve litigation [the court] can
`
`raise this matter sua Sponte?’ Axelrod ,V- Newtork’l‘cachursrem—mam System.
`
`154 A.D.2d 827,828. (3d Dept. 1989), disagreed on other grounds, fleflifiargg
`
`BaMinnesota v. MWQ, 42 A.D.3d 239, 2433, 837 N.Y.S.2d 247 (2d
`
`Del)L 2007.: (fihBCBrWKUMNA\YE/\SML\ NY Slip 019 50934- *3 (NY
`
`Sup Ct, Kings City 2008).
`
`
`
`
`
`19.
`
`Ownership of the note must be shown by endorsement of the note to the order of
`
`Plaintiff and delivery of the note to plaintiff, or by proof of delivery to Plaintiff of
`
`a note endorsed in blank. Delivery of the note to Plaintiff must be shown to have
`
`occurred before the commencement of action and Plaintiff must have been in
`
`possession of the note at such commencement. Mere possession of the notice is
`
`not sufficient to prove its ownership and the right to enforce the note. The chain
`
`of ownership of the note and mortgage from the original loan originator to the
`
`Plaintiff must also be established to prove ownership of the mortgage. All
`
`Op. 30762(U) (Sup. Ct., Richmond Co, March 23, 2012).
`
`20.
`
`Moreover plaintiff must have prove the ownership and holder status in the note
`
`and ownership of the mortgage at the time the action commences. Bank ofNew
`
`Xgrlcv. Sil‘ygmrg, 86 A.D.3d 274, 279-80, 926 N.Y.S.2d 532. 536-37 (2d dept.
`
`evidence that (:1) Plaintiff is the originator of the loan and the Lender of the
`
`proceeds described. in the note and secured by the mortgage. or (b) by showing
`
`proper and valid assignment of mortgage to the Plaintiff who continues to own it
`
`at the commencement of action for foreclosure.
`
`'21.
`
`Standing to sue by piaintiff requires an inquiry into whether a litigants has “an
`
`interest...
`
`in the lawsuit that the law will recognize as a sufficient predicate for
`
`determining the iSSue at the litigants request”. Ceprflwiussbgun} 36A.D.3d
`
`176, 181.082, 825 N.Y.S,2d 55, 62 (2d Dept. 2006‘) (If plaintiff lacks standing to
`
`sue, plaintiff may not proceed in the action); Stark v._Qoldberg, 297 A.D.2d 203,
`
`
`
`
`
`204, 746, N.Y.S.2d 280 (1 st Dept. 2002); Qampdignv Earha23 A.D.3d 327, 805
`
`NY-Sld 86 (2d Dept. 2005; seewxgtk Stateégrtnfflurfiénethgfigts
`
`v;l\f_oy§ll9, ‘2 N.Y.3d, 207: 211, 778 N.Y.S.2d 1‘23, 125 (20(14):Wcllslarg013ank
`
`Milllflig v. Ma§t_r_o_pa_olg, 42 A.D.3d 239 ,242 r837 N.Y.S.2d 247. 349 (2d
`
`Dept. 2007). When the issue of standing is raised by a defendant. a plaintiff must
`
`prove its standing in order to be entitled to relief.Mafianh, NAV
`
`Qtfllmgre, 68 A.D.3d 752, 753, 890 N.Y.S.2d at 580 ; Countrywrdellgme
`
`Li_gan§L_I_hr;g_,My,Wgrggg, 68 A.D.3d 709. 709—10, 888 N.Y.S.2d 914 (2d Dept. 2009);
`
`Misfilfigrggfiank, ELAMchimqne, 69 A.D.3D 204. 2073208, 887 N.Y.S. 2D
`
`615 (2d Dept. 2009) “In order to commence a foreclosure action, the plaintiff
`
`must have a legal or equitable interest
`
`in the mortgage”); 340%ng
`
`migration“S‘xfigmnwulnn ‘Coakch 41 AD. 3d 674-. 838 N-Y.S.2d 622 (2d
`
`Dept. 2007); EerieLMtl. _M;&4§_§n, yigyfllflcelsong, 303 A.D.'2d 546, 546-547,
`
`755 N.Y-S.2d 730 (2d Dept- 2003);1:ir_stfrustNatlA%snvMeiscls 234 A.D-2d
`
`414, 651 N.Y.SZd 121 (2d Dept. 1996). Instant case, plaintiff in neither legal nor
`
`equitable interest holder and. thus has no standing to sue and no capacity to sue.
`
`22.
`
`In, the First Department. a plaintiff faced with CPLR §3215 (c) motion is required
`
`not only to prove a lack of intent to abandon the action but also to demonstrate,
`
`with admissible proof, that the action has merit. _S_§efl,i,lt§_.k_~\_erommerce Bank
`
`log, 88 A.D.3d 522, 522-523, 930 N.Y.S.2d 575 (15' Dept. 201 1). The complaint
`
`itself, which is unverified, is hearsay and "cannot be considered as proof of the
`
`facts constituting plaintifik claim for the purpose of a default judgment." 1d,;
`
`citing Ritzer v. Q E. 43'dm_§t_.wggrpfl 47 A.D.3d 464,850 N,Y.S.2d 55 (lat Dept.
`
`
`
`2008).
`
`In this case, at no time was there any sworn statement that plaintiff was
`
`the owner of the note and mortgage. In fact the complaint was unverified and thus
`
`there is no true substantiation of allegation in the complaint as it remains
`
`unverified. In Bank of New Ygrhuyfiwsgilverherg, 86 A.D.3d 274 (2d dept. 20} l),
`
`the Supreme Court of the State of New "York, Appellate Division, Second
`
`Department, ruled that where a plaintiff’s standing is derived from an assignment
`
`of the mortgage and promissory note executed by MERS. a plaintiff must
`
`demonstrate that MERS was the holder of the note or that MERS had been given
`
`the specific authority to assign the subject note.
`
`‘23. In support of Plaintiff’s application for an Order of Reference, Plaintiff‘s counsel
`
`Lisa A. Palermo acknowledge the decision rendered in BankothY Vi}
`
`Swilyerherg. and asserts that possession of the note is sufficient to demonstrate the
`
`transfer of both the note and mortgage to the new holder.
`
`l-Iowever, opposing
`
`counsel is missing the issue. The issue at hand is not if the note and mortgage
`
`was transferred to Plaintiff but rather if the transfer of the not and mortgage was a
`
`valid transfer or if said transfer is null and void.
`
`24. In the instant action, the assignment of mortgage from MERS was invalid in that
`
`MERS was never the holder of the underlying mortgage as evident by the fact that
`
`the assignment is executed by MERS as nominee ofResmae Mortgage
`
`Corporation. No evidence had been produce to establish that MERS was given
`
`the specific authority by Resmae Mortgage Corporation to effectuate the
`
`purported assignment and even if they were given said Specific authority the
`
`assignment would still be invalid because the power of attorney was not recorded
`
`
`
`in the County
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
