Facts
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PAPERS FILED WITH THE LOWER COURT
The within action was filed December 15, 2006, in the Putnam
County Supreme Court by Plaintiff-Respondent Wells Fargo Bank
N.A. to foreclosure on Defendants-Appellants' property by way
of a Summons and Complaint (A 33). A Notice of Pendens (A 43)
was also filed at the same time, but was not served with the
Summons and Complaint, which was served on Thursday 4:30pm,
December 20, 2006, (A 415) four days before Christmas.
This foreclosure action was however brought upon a 1995
Mortgage in the original sum of $162,000.00 (A 174 & 175), which
had been paid in full as the record and exhibits will show.
Defendants-Appellants served their timely Answer with
Affirmative Defenses and Counterclaims on or before July 10,
2007, (A 44). Plaintiff-Respondent served their Reply to
Counterclaims on February 01-17-2007 (A 80).
Defendants-Appellants on January 30, 2007 served a Demand
for a Bill of Particulars (A 81), which was not answered by
Plaintiff-Respondent.
Plaintiff-Respondent then filed their Motion for Summary
Judgement on February 13, 2007 (A 87) seeking, inter alia
foreclosure on the paid and satisfied mortgage (A 175).
Defendants-Appellants answered the Motion and filed their
Cross Motion on March 13, 2007 (A 154 -> 230) along with an
extensive opposition affidavit with, inter alia, documents sent
to Appellants by Respondent Wells Fargo Bank N.A. that clearly
showed the mortgage being foreclosed on had actually been fully
paid off back in 2005. One these documents was a certification
that the mortgage being foreclosed in this action had been paid
in full (A 174), another that a satisfaction would be filed with
the County Clerk (A 175), and another being the payoff amount
from Respondent Wells Fargo (A 176).
Some of Defendants-Appellants positions in their Cross
Motion (A 154 - 230) was then upheld by the Decision and Order
of the Court dated April 27, 2007 (A 25) which held, inter alia,
the following:
"Defendants allege the $162,000 was satisfied and not
in default. They are Correct."
(Exhibit 05, page 2) [A 26]
"The Bank acknowledges Loan #4061738 in the original
sum of $162,000 was satisfied..."
(Exhibit 05, page 3) [A 27]
"On or about May 16, 2005 Defendants borrowed $380,346.31
from Wells Fargo Bank, N.A. They also obtained an equity
loan in the sum of $150,000 which was consolidated with
the $380,346.31. The total consolidated loan was $522,200."
(Exhibit 05, page 2) [A 26]
In support of the courts holdings in its April 27, 2007,
Decision, Defendants-Appellants submitted evidence in their
Cross Motion that Respondent paid off this loan and mortgage on
May 23, 2005 (A 174) which asserted for that loan number
685-4061738 stating the following:
"Wells Fargo Home Mortgage
This certifies that Scott E. Webster Jean Allen Webster
has paid in full loan 685-4061738 on May 23, 2005 for the
property of 18 Fair Street, Cold Spring NY 10516*"
"* This certification acknowledges receipt of funds
submitted as payoff of the above referenced loan."
This was further confirmed in a writing dated May 24, 2005,
and submitted to Defendants-Appellants in their Exhibit 11 (A
175), which clearly states for loan number 685-4061738:
"Congratulations! We are pleased to inform you that we
have processed the funds necessary to pay your loan in full."
... "We will mail loan satisfaction documents to you or to
your county recorded, according to your state guidelines."
A letter from Dominick Penzetta, the closing agent and
attorney for Plaintiff-Respondent, Wells Fargo Bank, dated
August 13, 2007, clearly stated the following:
"The original account with Wells Fargo was closed out by
the payment of the $143,409.56, ..." [balance of the $162,000.00).
The facts were clear, the original $162,000.00 mortgage had
been paid in full, and Plaintiff-Respondent clearly intended to
file the legally required satisfaction with the County Clerk as
Defendants-Appellants repeatedly showed the Lower Court (A 175).
The original Decision and Order of April 27, 2007, with its
holdings and findings of fact, as shown above was filed with the
Clerk, and Plaintiff-Respondent served the Notice of Entry dated
June 12, 2007, (A 30) upon Appellants, which started the 30 day
window for any party to file a notice of appeal.
Neither party filed a notice of appeal, nor did Plaintiff-
Respondent file a proper CPLR 2221 motion to reargue that
Decision and Order (A 25) which must be done within the time to
file an appeal.
The matter became res judica, and within the same action,
the "law of the case" and all parties were, and are, bound to
that Decision, like it or not.
As a result of Defendants-Appellants having a very
interested buyer, on May 9, 2007, Appellants requested a payout
letter from Plaintiff-Respondent's attorney for the final
amount, which request included the following:
"Please be advised that the payout numbers must
reflect the recent five page Decision and Order
(attached) of the Supreme Court of the State of
New York dated April 27, 2007 by Hon. Andrew P.
O'Rourke."
Plaintiff-Respondent complied with the figures that
represented the holdings of the original Decision and Order.
Plaintiff-Respondent took no exceptions, or raised any issues
with the Lower Court or Defendants-Appellants.
After Plaintiff-Respondent filed and served Defendants-
Appellants with the Notice of Entry on June 12, 2007, (A 30)
Defendants-Appellants on June 14, 2007, sent a letter (A 317)
with supporting documents to Plaintiff-Respondent's attorney and
copied to the Lower Court, demanding, inter alia, the following
(A 320):
"DEMAND TO REMOVE ERRONEOUS MORTGAGES FROM COUNTY
CLERK'S RECORDS"
"As you and several members of your firm are aware of
the recent Decision and Order by the Putnam County
Supreme Court Justice Andrew P. O'Rourke in his
Decision and Order dated April 30, 2007, part of which
is attached as #2, has made certain findings of facts
which has clarified the status of the mortgages held by
your Client, Wells Fargo Bank..."
Plaintiff-Respondent did not raise any questions, or apply
for any other kind of relief or motion, even though such was
still timely.
Not until August 20, 2007, did Respondents through a legal
assistant, contact the Lower Court via Fax with a request that
amounted to a legal motion (A 281) to reargue the original
Decision and Order dated April 27, 2007, (filed April 30, 2007)
that made major changes to the original Decision. This was
accomplished by the Respondents creating their own version by
the changing of important words and deleting other words and
sentences which completely changed the holdings of the original
Decision and Order, and to the great detriment of Respondents.
The faxed request, (Exhibit 04) from Respondent's legal
assistant, contained the following:
"Therefore, enclosed for Your Honor's review is a proposed
Amended Order correcting the above-mentioned error. We
respectfully request that Your Honor review the Amended
Order and, if it meets with your approval, that you execute
the same and return a copy to this office in the enclosed
postage paid evvelope."
Respondents cleverly eliminated the following findings of
fact from the original April 27, 2007, Decision and Order by
using their own carefully worded, prepared, and submitted
"Amended Decision and Order" faxed to Lower Court chambers,
completely deleted the following:
"Defendants allege the $162,000 was satisfied and not
in default. They are Correct."
(Exhibit 05, page 2)
"The Bank acknowledges Loan #4061738 in the original
sum of $162,000 was satisfied..."
(Exhibit 05, page 3)
"On or about May 16, 2005 Defendants borrowed $380,346.31
from Wells Fargo Bank, N.A. They also obrained an equity
loan in the sum of $150,000 which was consolidated with
the $380,346.31. The total consolidated loan was $522,200."
(Exhibit 05, page 2)
Appellants first received information of this illegal motion
when a partial copy of the Faxed letter arrived in the U.S. mail
on Thursday afternoon around 5:30pm, August 23, 2007, and
therefore Appellants immediately faxed to the Lower Court
Chambers the next morning, Friday at 9:20am, Appellants extreme
opposition to the Beals motion, (Exhibit 14) using the same Fax
number listed on the Beals Motion letter. See Appellants two
page letter Exhibit 14, which, inter alia, stated to the Lower
Court:
"We were shocked and dismayed upon receiving a copy
of a letter and proposed AMENDED DECISION AND ORDER
which was sent to your office by fax on August 20, 2007,
three days before we received a partial copy by mail."
"The Beals letter is clearly a new motion to your honor
before this court without any prior notification to us
for time to respond...This informal "motion" is NOT
about a technical error, but a challenge to the
partial finding of facts held in that Decision..."
[original Decision and Order of April 27, 2007]
The Lower Court quickly granted Respondents' motion for the
Amended Decision and Order, upon which the intermediate appeal
was based. This issue will be just one of the points of the
instant appeal, as well as solid reason in support of this
instant Order to Show Cause for a stay pending final
determination of the entire appeal herein.
Respondents then made a motion for Judgement of Foreclosure
and Sale (A 87) in which they stated in their Reply Affidavit to
Defendants-Appellants' Affidavit in Opposition, that the
difference in the original Decision and Order, and their own
creation of the Amended Decision and Order was the statement
"Further, both Orders... granted summary judgement in favor of
Plaintiff..." so Plaintiff-Respondent knew full well and
understood that their faxed letter (A 281) amounted to a summary
judgement motion which they later claimed to correct a "di
minimis Court scrivener's error". Dispite Defendants-Appellants
vigorous challange to the illegal motion, the Lower Court
granted summary judgement for Respondent's own composed Amended
Decision and Order when there was no proper motion noticed
before the court, and the required motion fee as per CPLR 8020(a).
Respondent's REPLY Affirmation to Appellants opposition to
the illegal motion in their own opinion in paragraph 18 the
following that the original Decision and Order "...contained a
de minimus Court scrivener's error which was corrected by the
August 27, 2007 Amended Decision and Order." Respondents call
their dropping of the critical words for the facts held in the
original Decision as de minimis?
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