|
ORDER TO SHOW CAUSE FOR A STAY OF FURTHER PROCEEDINGS returnable March 3, 2008 |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT
--------------------------------------------+
WELLS FARGO BANK, N.A. SUCCESSOR BY | AFFIDAVIT
MERGER TO WELLS FARGO HOME MORTGAGE, INC. |
3476 Stateview Boulevard | IN SUPPORT
Ft. Mill, SC 29715 |
|
Plaintiff-Respondent | ORDER TO SHOW CAUSE
-against- |
| FOR A STAY and TRO
SCOTT E. WEBSTER and JEAN ALLEN WEBSTER |
| Appellate Division
Defendants-Appellant,s pro se | Docket No:
|
| 08-00349
--------------------------------------------+ _______________
COMMONWEALTH OF VIRGINIA )
COUNTY OF CARROLL ) ss:
1. Defendant-Appellant Scott E. Webster and Jean Allen
Webster, husband and wife, each appearing pro se and being deposed
(Appellants") Defendants-Appellants (hereinafter "Appellants"),
state to this Honorable Court under the penalties of perjury as
follows:
2. That I, Scott E. Webster, husband of Jean Allen Webster,
residing at 204 Charlotte Drive, Dugspur, Virginia, 24325 and
alternatively at 18 Fair Street, Village of Cold Spring, Putnam
County, State of New York, zip 10516, am appearing pro se, and I am
fully familiar with all the facts and circumstances in the above
caption action, except where it is specifically asserted upon
information and belief.
3. That I, Jean Allen Webster, wife of Scott E. Webster, reside
at 204 Charlotte Drive, Dugspur, Virginia 24325, and am appearing
pro se, and I am fully familiar with all the facts and circumstances
in the above caption action, except where it is specifically
asserted upon information and belief.
4. That Appellant-Respondents in this instant motion are Wells
Fargo Bank, N.A. as captioned above and their attorneys, Steven J.
Baum, P.C., (hereinafter "Respondants") who have initiated a
foreclosure action against Appellants property at 18 Fair Street,
Cold Spring, New York, 10516, based upon a 1995 mortgage in the
amount of $162,000.00, which had been paid and satisfied, but not
filed with the Putnam County Clerk, as will be shown below. This
issue will be a major part of Appellants appeal.
6. That on December 17, 2007, Appellants filed an Order to Show
Cause under Appellate Docket 07-09263 that was returnable December
28, 2007, which was just dismissed on January 24, 2008 (Exhibit 22)
as this appeal, now currently under Docket 08-00349 superceded the
prior appeal, as this Court ruled:
"ORDERED that on the court's motion, the appeal
is dismissed, without costs or disbursements, on
the ground that it was superseded by an appeal
from the judgement dated December 4, 2007 (Matter
of Aho, 39 NY2d 241, 248), pending under Appellate
Docket No. 2008-00349."
7. That this instant motion via Order to Show cause with a TRO
is to stay and injoin Respondants from taking any further
proceedings toward the threatened forced sale at auction of
Appellants' property, recently granted by the Lower Court on
December 4, 2007, in a Judgement of Foreclosure and Sale (Exhibit
02), which is being appealed herein.
8. That the current appeal is based on Appellants' filing a
Notice of Appeal on the above stated Judgement (Exhibit 01) dated
December 26, 2008, and all the matters being taken, ab initio. Also
attached to Exhibit 01 is the Notice of Entry. Respondents stated
in their answering papers in opposition to the previously noted
Order to Show Cause that the Judgement being appealed herein, is the
final legal procedure, so there is no intermediate appeals at this
point.
9. That this Affidavit in support with the attached exhibits
and Memorandum of Law is to show this Court the very strong
likelihood of your Appellants being successful in this overall
Appeal (2008-00349) as will shown below, and that the relief sought
is justified inter alia, for many of the following reasons and facts
as stated in the paragraphs, and summarized below:
a) The submission of an illegal motion that was granted by
the Lower Court and is the foundation for the
Judgement of Foreclosure and Sale, being appealed herein.
b) Subject matter jurisdiction, ab initio.
c) Violation of the law of the case.
d) Violation of the doctrine of starre decisis.
e) Foreclosure action based upon a paid and satisfied mortgage.
f) Respondent failing to file satisfaction of paid mortgage
that is the basis for the foreclosure action.
g) Respondents own defination of their faxed motion to the
Lower Court as di minimus which does not rise to the
level requiring court intervention.
h) Ex parte communications between Respondents and the Lower
Court
REASONS FOR THIS INSTANT MOTION TO GRANT A TEMPORARY
----------------------------------------------------
RESTRAINING ORDER AND ISSUING A STAY PENDING PERFECTION
-------------------------------------------------------
ISSUES FOR THE APPEAL
---------------------
SUBJECT MATTER JURISDICTION
-----------------------------
10. The Respondents lacked standing in this matter when they
filed the summons, complaint and lis pendens, and as such the Lower
Court never had subject matter jurisdiction over Appellants, because
Respondents, (and in the Lower Court, Plaintiff) Wells Fargo did not
have the original mortgage in their posession when they brought the
initial action, as Appellants put forth before the Lower Court, and
will document below. This will also be a major point of Appellants'
perfected appeal in this matter.
11. It is well settled that subject matter jurisdiction may be
raised at any time, and its effect on all of the proceedings
granted, judgements, decisions, and orders become void, ab initio.
This is reason enough for Appellants to be successful in the overall
appeal and for this Court to grant the immediate temporary relief
being sought herein.
????quot12. Appellants assert that the issue of subject matter
jurisdiction never goes away, and neither the parties nor the court
can waive it or agree to ignore it or stipulate to it or in any
other way make it not an issue, and if the court mistakenly hears
and decides a case over which it lacked subject matter jurisdiction,
its decision can be voided at any level of the appeal process at any
time, and by either party, including the one who prevailed. The
judge has a duty to continually inspect the record of the case, and
if subject-matter jurisdiction does not appear at any time from the
record of the case, then he has the duty to dismiss the case as
lacking subject-matter jurisdiction. Should a judge act in any case
in which he does not have subject-matter jurisdiction, he is acting
unlawfully, U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66
L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264,
404, 5 L.Ed 257 (1821), and without any judicial authority.
THE BOYKO DECISION
------------------
13. Appellants direct the Court's attention to the recent
Federal Opinion and Order by Federal Judge Christopher A. Boyko, of
the Untied States District Court, Northern District of Ohio, Eastern
Division, (Exhibit 28) in which he dismissed fourteen (14) cases of
foreclosure brought on by Plaintiff Deutsche Bank.
"On October 10, 2007, this Court issued an Order requiring
Plaintiff-Lenders in a number of pending foreclosure cases
to file a copy of the executed Assignment demonstrating
Plaintiff was the holder and owner of the Note and
Mortgage AS OF THE DATE THE COMPLAINT WAS FILED, or the
Court would enter a dismissal.
(Boyko Order, Exhibit CC page 1)
...
"In the above-captioned cases, NONE of the Assignments
show the named Plaintiff to be the owner of the rights,
title and interest under the Mortgage at issue as of the
date of the Foreclosure Complaint."
(Boyko Order, Exhibit CC page 3)
14. Appellants, Defendants in the Lower Court, addressed the
matter of jurisdiction which was submitted in Appellants Affidavit
in Opposition and in Support of Defendants Cross Motion dated March
23, 2007 as quoted in the following paragraph:
"6. Plaintiff's own Exhibit "B" is an Assignment of
Mortgage which was executed on December 20, 2006, six
days after the preparation and date of the Summons and
Complaint, and five days after the filing of the
foreclosure action with the Clerk. Additionally, the fax
date at the bottom of the page, (391) clearly shows that
Plaintiffs may not have had this document until
02/16/2007. Plaintiffs, according to the County Clerk,
did not file the instant Motion until February 28, 2007,
twelve (12) days after they received their tab "B" the
Assignment of Mortgage apparently from MERS. Defendants
=====> point out that this is proof of the fact that at the time
of the filing of the Summons and Complaint in this
foreclosure action, AND THE NOTICE OF PENDENCY, that
Plaintiffs did not have in their hands, or own the
Mortgage being foreclosed, and therefore lacked
=====> jurisdiction. Again, Defendants point out that this was
the $162,000 mortgage that Plaintiffs paid off, and "was
consolidated" as they now attempt to admit"
15. Appellants Exhibit 15 is a copy of the above noted
assignment which Respondents-Plaintiffs submitted to the Lower
Court, and also in Appellants-Defendants Affidavit in Support of
their Cross Motion dated March 11, 2007, that stated to the Lower
Court the following at paragraph:
"15. In Plaintiffs Affidavit they annex an ASSIGNMENT
OF MORTGAGE as an exhibit for tab "F" Defendants
(Exhibit 03), which is a paper from Mortgage
Electronic Registration Systems, Inc. dated December
20, 2006, and "effective" 19 days earlier to December
1, 2006. This document is confusing in its
construction, possibly deliberately so in its meaning
and interpretation, such as ...
"KNOW, that Mortgage Electronic Registration Systems,
Inc. ... Assignor in consideration of One or More
Dollars... paid by Wells Fargo Bank, N.A. ... Assignee,
hereby assigns unto Assignee, a certain mortgage made by
SCOTT E. WEBSTER and JEAN ALLEN WEBSTER, given to First
Fidelity Bank N.A., to secure the sum of One hundred and
sixty two thousand dollars ($162,000.00) and interest,
dated the 24th day of August, 1995 recorded on the 5th
day of September, 1995 recorded on the 5th day of
September, 1995 ... Liber 2110 ... Page 320..."
16. Appellants Exhibit 16 reflects the true assignment date with
the Putnam County Clerk dated January 10, 2007, twenty six (26) days
after Respondents filed the lis pendens, and Summons and Complaint.
17. Appellants' Exhibit 17 is a printout of the minutes of the
Putnam County Court Record that clearly shows the dates in our hand
written line numbers 17, 18 and 19, that the Respondents' Assignment
never happened until January 10, 2007, and not the back dated
"Assignment" of December 20, 2006, (Exhibit 15) "effective December
1, 2006." The original mortgage was held by First Fidelity Bank,
N.A., which subsequently, transferred the Mortgage to Mortgage
Electronic Recording System (MERS), which then, as the Assignment
(Exhibit 15) shows held the Mortgage until January 10, 2007.
18. Most important, however, is the wording "... Assignor in
consideration of One or More Dollars ($1.00) paid by Wells Fargo
Bank, N.A. ..." (Exhibit 15) which clearly shows this as a contract
of sale from MERS to Wells Fargo for the mortgage, and that
Respondent did not own the Mortgage, and apparently the Note that
would accompany it, until at least December 20, 2007. This is also
proof that Respondent could never have "consolidated" the mortgages
(Exhibit 06) in 2005 as they claimed, since they did not own the
MERS held mortgage until December 20, 2007.
19. Appellants note that this is then clear proof that the
Assignment took place well after the filing of the lis pendens, and
Summons and Complaint, and the Lower Court never had subject matter
jurisdiction ab initio, and therefore the Lower Court was compelled
to dismiss the Summons and Complaint and vacate the lis pendens
(Exbibit 09) as Appellants argued in their cross motion as stated
above, and in Respondent's own statement:
"...the Plaintiff commenced the within foreclosure action by
the filing of a Lis Pendens, Summons and Complaint with the
Putnam County Clerk on December 15, 2006, bearing Index No.
2742/06." (Respondent's REPLY to the Lower Court, page 2,
Paragraph #7 dated November 27, 2007)
20. Furthermore, Respondents own Complaint, verified and sworn
to on the 14th day of December, 2006, by Darleen V. Karaszewski,
Esq. stated as follows on page 2:
"The mortgage was subsequentily assigned to WELLS
FARGO BANK, N.A. SUCCESSOR BY MERGER TO WELLS FARGO
HOME MORTGAGE, INC. by assignment.
"Said mortgage is to be assigned by an Assignment to
be recorded in the Office of the Clerk of PUTNAM
County.
21. This is Respondents own statement "...is to be assigned..."
which has clearly not been accomplished or filed at this point. And
of course the mortgage referred to is the $162,000.00 1995 mortgage
which had been paid off, (see paragraphs 35 - 40 below) and that
Respondent Wells Fargo said the satisfaction would be duly recorded
(Exhibit 11).
22. Appellants Affidavits and Exhibits and other moving papers
that will become a part of perfecting our appeal, have repeatedly
shown Respondents and the Lower Court that Respondents never owned,
or had control of the 1995 $162,000.00 mortgage being foreclosed as
they never had control of it until at least January 10, 2007,
(Exhibit 16) almost one month after filing the lis panance and
complaint with the Clerk, and only after Appellants raised the issue
in their Affidavit in opposition and in Support of Cross Motion of
March 11, 2007. This issue will be taken up by Appellants in their
perfected appeal.
IMMEDIATE AND IRREPUTABLE DAMAGE TO APPELLANTS-PETITIONERS
----------------------------------------------------------
23. Appellants will suffer irreputable financial damages if
Respondants are allowed to sell Appellants' property at auction, as
it is common knowledge that the real estate market is notoriously
dead during Winter, that no fair and reasonable price could can be
ascertained during the Winter which is void of fair market buyers.
Respondant's own ordered appraisal was for $868,000.00 (Exhibit 23)
when the refinancing was done. Exhibit 24 is a current copy of
Appellants' flyer on the property which shows that this is prime
property. Exhibit 20 is just one of many online examples of
Respondents' attempt to downgrade and prevent Appellants from
securing a buyer for the property by Respondents foreclosing on the
paid off and satisfied 1995 mortgage of $162,000.00, and how it has
hurt your Appellants effort to get a serious buyer. Brokers have
repeatedly told your Appellants that it is almost impossible to sell
when a lis pendens has been filed. Respondants own worded
foreclosure orders allow them to bid and buy Appellants' property
which would be a fraction of the true current market value of the
property, and would allow Respondents to reap a huge amount of
Appellants' built up and earned equity. Respondents actions are a
mere attempt at theft of Appellants' equity.
24. If an auction of the property was allowed under
Respondents' terms, the frightening aspect as shown in our paragraph
26 below, and Appellants being successful, that if Respondents, or
any other party bid and "bought" the property, Appellants in later
litigation would have a very difficult time of proving their true
value loss of their equity.
25. Appellants submit a comparable local villge house ad that
recently appeared with a major broker for $1,199,00 (Exhibit 20)
which does not have the choice location of Appellants' property.
Should Respondents auction Appellants property for the mortgage
amount, or less, Appellants will suffer major financial harm.
AUCTION NOTICE IN - THE "OFFICIAL" NEWSPAPER
--------------------------------------------
26. Prima facie proof of Appellants potential damage is clearly
shown in the Judgement for Foreclosure and Sale which states:
"...that the said Referee give public notice of the
time and place of such sale according to law and the
practice of this Court, in an official publication,
to wit: THE PUTNAM COUNTY PRESS; ..."
27. This is a completely unrecognizable and virtually unknown
paper in Putnam County serving the very small unknown community of
Mahopac only, and has very, very, limited circluation of this less
than serious "official publication". The Putnam County Press, AKA
The Putnam County Times, neither of which are even registered with
the NYS Sectrary of State; neither is Mondo Code, LLC, or Mondo
Press, as our attached text printout shows, who publicly listed as
the apparent owner.
28. The selection of the Putnam County Press was created,
prepared and submitted to the Lower Court for signing by
Respondents, and is a clear indication that no real serious attempt
was, or is, intended either by Wells Fargo, or their attorneys, or
the Lower Court to obtain any serious buyers, as Appellants'
research disclosed the disturbing information of attached text
printout (Exhibit 25) of the "Putnam County Press" on a public
website which states:
"You can also reach us by regular mail:
"Mondo Code LLC
PO Box 1288
Boulder CO 80306
USA"
"in Mahopac, New York, USA covering general news"
(from Contact Information)
"Don Hall is the editor of the Putnam County Press.
"For Putnam County Press contact information, become a
Mondo Times Advanced or Professional Member. If you are a
member, log in now."
"Putnam County Press Ratings
Content: Not yet rated
Political Bias: Not yet rated
Credibility: Not yet rated"
RESPONDENTS REAL INTENTION AND MOTIVES
--------------------------------------
29. Reviewing Respondents submission to the Lower Court for
their Judgement of Foreclosure and Sale, Appellants came upon the
troubling document (Exhibit 18) that was deliberty NOT included with
Respondents original Affidavit or Exhibits in support of their
initial motion for Summary Judgement, however, the undated
individual pages from Prime were.
30. This document, bearing the title of "MORTGAGE FORECLOSURE
CERTIFICATE ... CERTIFIES TO: Steven J. Baum, P.C." and states,
"Certified as of October 1, 2006 at 9:00 A.M." by Prime Title
Search, LLC. As Appellants had made a partial payment on the
mortgage for August, and then sent in a hardship letter at
Respondent's request on October 24, 2006, which was at least twenty
four (24) days later, is prima facie evidence that the entire
foreclosure has been directed to get Appellants' equity, and the
above inquiry would be needed to make an offer for the purchase of
the obligation from Respondent Wells Fargo, which explains why
Respondent Wells Fargo never attempted to work with Appellants.
31. This critical document is circumstantial and prima facie
proof that Respondent Wells Fargo, never intended to work with
Appellants, and that Steven J. Baum, Respondent's attorney may have
very well purchased the loan obligation as Appellants show in
the above paragraph, why else would Respondents leave out the this
critical page in their Affirmation.
32. This document is also evidence that Respondent Wells Fargo
contrived initially at the closing by switching the terms of at the
last minute at the closing of the mortgage to entrap Appellants with
the potential of a foreclosure where Respondents and the law firm
could help themselves to the large equity Appellants had in the
mortgaged property. As such, Respondents have used every trick in
the legal system, filing illegal motions in the Lower Court, back
dating documents, making false statements in their affidavits, and
inquiring about the property status at a time when Appellants owed
for only one mortgage payment. At the time of the filing of the
Complaint, Appellants owed Respondent only 2% of the loan
commitment.
ILLEGAL GRANTING OF THE UNDERLYING
----------------------------------
AMENDED DECISION AND ORDER
--------------------------
33. Appellants' instant appeal is also against the granting of
the Amended Decision and Order (Exhibit 03) which was from a motion
submitted by Respondents which your Appellants will show in the
perfected appeal was improper, illegal, untimely, and never should
have been brought for the reasons stated below. Respondents faxed
to the Lower Court (Exhibit 04) an illegal motion using a legal
assistant of Respondent's law firm for the submission, obviously to
shield their licensed attorneys from probable future sanctions in a
different forum, as their illegal "motion" completely changed the
holdings of the prior Decision and Order dated April 27, 2007,
(Exhibit 05) of over four months prior, and was therefore a complete
violation of Appellants rights to due process and equal protection.
34. That the letter by Respondents requesting to change and
amended the April 27, 2007 Decision and Order by the Lower Court was
legally a motion to reargue, which is mandated by black letter law
requiring first a proper notice of motion to Appellants, as required
in a CPLR 2221 for leave to reargue, requiring filing fees be paid
for that motion CPLR 8020(a), none of which had been done, and the
entire procedure was in direct violation of the doctrine of the "law
of the case", and starre decisis. Exhibit 27 is a copy of the
Clerk's minutes showing that no motion was ever filed nor the fees
paid. Appellants first Notice of Appeal from the Amended Decision
and Order (Exhibit 08) contained the following:
"The Amended Decision and Order being appealed
herein granted an ex-parte informal "motion" requested
and granted to Plaintiff Wells Fargo Bank Inc., that
such request was in fact a CPLR 2221 motion to reargue
to amend the prior Decision and Order of the Supreme
Court dated April 27, 2007, and was "the law of the
case" which held findings of facts which were entirely
deleted from Plaintiffs own prepared "Amended Decision
and Order" that was faxed directly to Court Chambers
(Plaintiff's own fax number appears on the rubber
stamped signed "order"); that the Court erred as the
time to make a motion to reargue must be made within
the time frame of the time to file a notice of appeal,
which was not done as Plaintiff served the Notice of
Entry upon Defendants on or about June 12, 2007, over
two months earlier, whereafter neither side filed
notices of appeal; that this instant matter was an
illegal "motion" in that a CPLR 2221 motion to reargue
first mandates a motion for leave of the court to
reargue where Defendants can assert laches, that no
such motion had ever timely been made or noticed upon
Defendants, that no supporting sworn affidavit by any
attorney accompanied this instant "motion", and said
motion was not even filed by by an attorney but a
"legal assistant" of Plaintiff's attorney's office, and
a copy of the proposed "amendment" sent to Defendants
failed to contain critical exhibits."
The speed with which the Lower Court personally intervened on
behalf of Respondents is shown in Exhibit 03 at the top of the pages
that clearly show Respondent's attorney's fax number on the left,
and what clearly indicates the Lower Courts own fax number which is
partly cut off as shown in a summary page of the fax numbers that
is summarized as the last page of Exhibit 03. The date and time
shows that the Amended Decision and Order was rubber stamped by the
Lower Court on August 28, 2007, entered by the Clerk at 1:36 PM, and
then faxed back to Respondent's law firm at around what appears to
be 4:07PM, all on the same day. How is that for service, especially
when Appellants have charged the Lower Court with ex parte
communications.
MORTGAGE BEING FORCLOSED WAS PAID AND SATISFIED
-----------------------------------------------
35. The entire underlying foreclosure action, however, is based
upon the mortgage issued in 1995 for $162,000.00 (Exhibit 07) that
was legally satisfied and the Lower Court should have dismissed the
original Complaint as a matter of law and subject matter
jurisdiction, a matter that will be a major part of Appellants'
perfected appeal. Respondents own lis pendens (Exhibit 09), along
with the initial complaint (Exhibit 21) clearly states:
"On the Summons, Complaint and Notice of Pendency of
Action duly filed in this action on the 15th day of
December, 2006, and all proceedings thereon..."
(Exhibit 02, Judgement of Foreclosure and Sale
signed by the Lower Court)
"NOTICE IS HEREBY GIVEN, that an action has been commenced
and is now pending in the SUPREME Court of PUTNAM County
upon the Complaint of the above named Plaintiff
... for the foreclosure of a mortgage bearing the date
the 24th day of August, 1995, .... to secure the sum
of $162,000.00, and recorded..." (Notice of Pendency
filed December 15, 2006) (Exhibit 09 herein)
36. That this mortgage that was being foreclosed was paid in
full on May 23, 2005, as certified by Respondent Wells Fargo Bank
(Exhibit 10) states:
"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."
37. This was further confirmed Respondent Wells Fargo in a
writing dated May 24, 2005, and submitted to Appellants (Exhibit
11), 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 recorder, according to your state guidelines."
We repeat and emphasize again from above:
"The original account with Wells Fargo was closed out by
the payment of the $143,409.56,..." [balance of the $162,000.00]
(From a recent letter to Appellants by Dominick Penzetta
closing attorney for Respondant Wells Fargo Bank)
38. Respondents never filed the satisfaction of that Mortgage in
violation of the law, as Appellants call attention to this Court the
following cites regarding satisfactions which cites in part:
"While the mortgage is extinguished by its payment, the
instrument executed by the mortgagee to remove the mortgage
recording of a mortgage creates a lien against the real
property and necessitates the recording of a formal instrument
from the record. Such an instrument is called a ... certificate
of satisfaction, ..." ... "but if the
mortgage was recorded, the mortgagor is entitled to a
satisfaction of the mortgage. ..."
(78 N.Y. Jur.2d Mortgages Section 375)
"4. In the case of a mortgage secured by property improved
by a one-to-six family, owner occupied, residential structure
.... if the mortagee fails within ninety days to deliver
the satisfaction of mortgage ... the mortgagee shall be
liable to such person in the amount of five hundred dollars
or the economic loss to such person, whichever is greater."
RPAPL Section 1921, Subd. 4." (239 A.D.2d 68)
39. On December 15, 2006, Respondents filed a summons and
complaint and lis pendens (Exhibit 09) against Appellants in the
County Court against this very same Mortgage that Respondent Wells
Fargo certified had been satisfied, and that they intended to file
that satisfaction, but never did. Respondents then shortly moved
for summary judgement.
40. On April 27, 2007 by way of a Decision and Order the Lower
Court issued findings, that held, inter alia, that the 1995 Mortgage
had been paid in full and satisfied (Exhibit 05 page 2).
"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 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)
41. On June 12, 2007, Respondents then served a Notice of Entry
upon Appellants of the April 27, 2007 Decision and Order, filed with
the Clerk April 30, 2007, (Exhibit 12) which started the tolling the
time for filing notices of appeal, or motions to reargue.
42. On June 14, 2007, Appellants sent a demand letter to
Respondents (Exhibit 13) that they must correct County record
filings of the erroneous mortgages according to the findings held by
the Lower Court in the April 27, 2007 original Decision and Order
(Exhibit 13) which letter stated in part:
"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 by Supreme Court Justice Andrew P.
O'Rourke in his Decision and Order dated April 30,
2007, has made certain findings of facts which
clarified the status of the mortgages held by your
client, Wells Fargo National Bank, that are listed
with the Putnam County Clerk's Office in the public
records, as we will show and document below."
43. Neither Appellants nor Respondants filed a notice of
appeal, nor had either party made any motion to the Lower Court for
leave to reargue via a CPLR 2221 motion.
44. On May 9, 2007, Appellants then sent to Respondents a
letter (Exhibit 26) requesting a payout letter from Respondants for
a very interested buyer to finalize contract terms for the sale of
the property based upon the April 27, Decision and Order (Exhibit
05). The letter stated in part:
"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 30, 2007 by Hon. Andrew P.
O'Rourke."
45. Respondants complied, and followed the terms of the
original Decision and Order, and raised no issues with either
Appellants or the Lower Court at that time. The sale was later
cancelled by the buyers when a buyer for their property defaulted.
ILLEGAL MOTION TO THE COURT AND
--------------------------------
VIOLATION OF THE LAW OF THE CASE
--------------------------------
46. On August 20, 2007, Respondants then suddenly contacted the
Lower Court directly ex parte by fax at the Lower Court's Chambers,
with their own carefully reworded "Amended Decision and Order"
(Exhibit 03) which completely changed the original findings held by
previously by the Lower Court's April 27, 2007 Decision and Order by
completely eliminating several crucial findings of fact and the
below statements do not appear on Respondent's Amended Decision and
Order. Those findings were, repeated again, and shown below:
"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 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)
47. This was now two months and eight (8) days past the legal
time to reargue a CPLR 2221, and the original Decision and Order of
April 27, 2007, a since the 30 day period had expired, the original
Decision and Order became res judica in any other action, and the
law of the case within this matter.
"The doctrine of the law of the case articulates the
sound policy that once an issue is judicially
determined, that should be the end of the matter as far
as judges and courts of coordinate jurisdiction are
concerned. When a court makes a legal determination in
a case, that determination, if not appealed from,
becomes the "law of the case" and controls when the
question which led to it is again presented in that
same case. The decided issue becomes binding not only
on the parties, but on all other judges of coordinate
jurisdiction."
(28 NY Jur 2d Courts and Judges Section 236 Generally)
48. Respondents accomplished this major change to a matter
already decided when they had a legal assistant fax a mere cover
letter to the Lower Court chambers, noting their request (Exhibit
04) which clearly and legally was a motion to the Lower Court to
change the major findings held in the original Decision and Order.
The "request" letter stated:
"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 envelope."
According to common understanding and custom, and according
to a law dictionary's definition:
"MOTION - an application to the court requesting an
order or rule in favor of the applicant. See 347 S.W.
2d 211, 216. Motions are generally made in reference
to a pending action and may be addressed to a matter
within the descrition of the judge, or may concern a
point of law... Motions may be made orally, or more
formally, in writing by a NOTICE OF MOTION."
"The law of the case doctrine applies to motions, so
that in the absence of a statutory exception and in
order to prevent vexatious and repeated applications on
the same point, a motion once fully heard and decided
cannot be revived again ... The doctrine of the law of
the case extends only to judicial determinations, ...
Moreover, it applies to various stages of the same
litigation, ..."
(28 NY Jur 2d Courts and Judges Section 236 Generally)
49. Appellants first knowledge of Respondents' motion to the
Lower Court was when Appellants received a partial copy, missing the
stated "attachments", in the U.S. Mail, four (4) days after the
Respondants had faxed their "motion" to Chambers.
50. Your Appellants then immediately faxed back to Chambers the
very next morning their response, outrage (Exhibit 14) and challenge
in opposition, that the motion was not properly noticed to
Appellants, was untimely, and too late to reargue.
51. This was an illegal and untimely motion to reargue a CPLR
2221, and additionally required Respondents to pay a proper filing
fee CPLR 8020(a) for that motion, neither of which was ever done.
"The fact that a motion may affect or even be directly
addressed to a prior order does not relieve it of the
requirement that a fee be paid for the motion when the
papers are filed with the county clerk." "(Section 253
Motion Practice, Motion affecting Prior Order)"
52. That by Respondents faxing their motion directly to the
Lower Courts' Chambers, ex parte, Respondents were able to evade the
scrutiny of the County Clerk for filing a legal and proper motion
with the proper service to Appellants, let alone pay the required
filing fee. More importantly Respondent's attorneys were able to
avoid a challenge by Appellants for leave to reargue a CPLR 2221.
Exhibit 17 is a page from the Court minutes that show that
Respondents' motion was never filed with the County Clerk, or any
fee paid.
53. The Lower Court, however, using a rubber stamp to put the
Judge's signature the very next day on Respondants own prepared and
created Amended Decision and Order, and by doing so ignored the
rules of the Court System and various CPLR statutes. The speed at
which it was done even had Respondents own fax number at the top of
the copy attached to their Notice of Entry (Exhibit 02).
54. Appellants initially filed a Notice of Appeal regarding the
granting of the Amended Decision and Order, dated August 27, 2007,
on September 28, 2007, (Exhibit 08), then as Docket 07-9263 which
was the basis and request for the initial order to show cause
motion, request for a TRO, and final appeal.
55 Respondants then filed a motion for Judgement and
Foreclosure on Appellants' property on October 31, 2007, with a
return date of November 30, 2007, (Exhibit 02).
56. Appellants responded on November 23, 2007, with their
Affidavit in Opposition and Memorandum of Law detailing and citing
the above stated violations of black letter rules of law to the
Lower Court.
57. In spite of Appellants citing of black letter law in
opposition, the Lower Court signed the Judgement of Foreclosure on
the same return date of Respondents Motion, which ignored the Lower
Courts original holdings, the law of the case doctrine, and starre
decisis.
58. The original Decision and Order was, and is, the true
findings of facts held by the Lower Court, and are final under the
law of the case and res judica, and the parties are bound in law to
them in liew of any attempts to appeal the decision, or to properly
reargue the matter under the rules of the CPLR. This is made
perfectly clear under 28 NY Jur 2d Courts and Judges Section 236
Generally:
28 NY Jur 2d Courts and Judges Section 236 Generally
"As a matter of policy, an attempt to avoid the binding
effect of a prior ruling should be accomplished by
reversal of such ruling upon an appeal, and not by a
coordinate tribunal's failure to follow it. The doctrine
of the law of the case articulates the sound policy that
once an issue is judicially determined, that should be
the end of the matter as far as judges and courts of coordinate
jurisdiction are concerned. When a court makes a legal
determination in a case, that determination, if not
appealed from, becomes the "law of the case" and controls
when the question which led to it is again presented in
that same case. The decided issue becomes binding not
only on the parties, but on all other judges of coordinate
jurisdiction. Thus a court of coordinate jurisdiction
ordinarily should not disregard an earlier decision on
the same question in the same case."
(Emphasis added)
"The law of the case doctrine applies to motions, so that
in the absence of a statutory exception and in order to
prevvent vexations and repeated applications on the same
point, a motion once fully heard and decided cannot be
revived again ... The doctrine of the law of the case
extends only to judicial determinations, ... Moreover, it
applies to various stages of the same litigation, ..."
(Emphasis added)
Courts and Judges Section 245
"Improper failure to follow doctrine"
"When there is an appeal from an order which is found
to have been made in violation of the law of the case
doctrine, the appellate court may properly reverse it
for that reason alone, without regard to the merits, or
it may disagree with the substance of the of the subsequent
order and yet affirm it on appeal on the grounds that it
was made on the constraint of the law of the case doctrine."
RESPONDENTS REASON FOR THEIR OWN PREPARED
-----------------------------------------
AMENDED DECISION AND ORDER - DE MINIMIS "ERROR"
-----------------------------------------------
59. Incredibly, in the subsequent motion for Judgement of
Foreclosure, Respondents' own legal position in support of their
Amended Decision and Order in their Affidavit in Support, paragraph
18, contained following mis-statement and untruth that the original
Decision and Order "...contained a de mimimus Court scrivener's
error which 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?
Common legal definition of de minimis is as follows:
Law Dictionary, by Steven H. Gifis
Barron's Eductional Series Inc.
"de minimis : Insignificant; minute, frivolous."
"Something or some act which "de minimis" in interest
is one which does not rise to a level of sufficient
importance to be delt with judicially."
"Trifles, or matters of a few dollars or less."
121 F.2d 829, 832.
60. Respondents through their own words believe that a de
minimus situation occurred in the original Decision and Order and
therefore knew that it "... does not rise to a level of sufficient
importance to be dealt with judicially" so Respondents knew that
they lacked legal grounds and should never have made their motion to
the Lower Court requesting a change in the Original Order, and the
Lower Court should have ignored their "motion".
61. As for "Trifles, or matters of a few dollars or less." the
dropping of the findings of facts from the original Order involved
at least $150,000.00 or more, hardly a "few dollars or less", let
alone "de minimus".
62. Respondents clearly knew and understood as professional
attorneys that "de minimus" matters should and could not be the
basis for judicial intervention via motion, and the fact of using a
legal assistant to submit a motion to the Lower Court to shield the
firm's attorneys from the disciplinary rules and sanctions, rises to
the level that the Lower Court should never have entertained or
signed (actually rubber stamped) Respondents' motion. This alone
should be just one basis for your Appellants being successful in
this instant appeal.
LIKELIHOOD OF APPELLANTS' SUCCESS ON APPEAL
-------------------------------------------
63. Appellants are fully confident that given the errors and
actions as documented in this Affidavit in Support for an order to
show cause of the actions by Respondents and the Lower Court, that
this Appellate Court will clearly find in their favor for the above
cited reasons and cite the following from:
Courts and Judges Section 245
"Improper failure to follow doctrine"
"When there is an appeal from an order which is found
to have been made in violation of the law of the case
doctrine, the appellate court may properly reverse it
for that reason alone, without regard to the merits, or
it may disagree with the substance of the of the
subsequent order and yet affirm it on appeal on the
grounds that it was made on the constraint of the law
of the case doctrine."
RESPONDENTS WOULD NOT SUFFER ANY MEANINGFUL DAMAGE AND
--------------------------------------------------------
WHY NO UNDERTAKING BY APPELLANTS IS WARRENTED OR NECESSARY
----------------------------------------------------------
64. Appellants submitted to Respondent Wells Fargo at their
request a "hardship letter" in order to set up a working arrangement
to allow Appellants time to sell the contested property which was
then on the market. Appellants submitted a five page response
detailing the situation including the large equity that protected
Wells Fargo. Appellants then current financial situation and
Appellants willingness to work with them, by allowing reasonable
time to continue to sell the property in what was then a good
market.
65. Respondent Wells Fargo's agents repeatedly assured
Appellants that they would work out something, reassuring Appellants
that Respondent didn't want our property, and that postponing a
foreclosure process was frequently done, and not to worry, that it
"normally" took them 30 to 45 days to assign a person or agent who
would open up "file" which had to be done first to start the
process.
66. After Appellants repeated and frequent calls to Respondent,
sixty eight (68) days later Respondents served Appellant Jean Allen
Webster at 4:30 on a Thursday afternoon a mere four (4) days before
Christmas which was the next Monday.
67. The filing of the lis pendens immediately prevented
Appellants from any meaningful offers, as the word spread within the
real estate community, and in effect seriously affected the
marketability of the property. As professionals, Respondents
calculated actions after receiving Appellants hardship letter
clearly showed that there was little justification for their
actions, certainly at that time.
68. Respondents are still accruing fines and penalties against
your Appelllants and there is more than enough equity in the
property to protect Respondents' interests, so they will suffer no
damage.
69. As your Appellants showed in paragraph 29 through 31 above
that Respondents either severally or jointly, would not work with
your Appellants, and took measures to force Appellants into this
foreclosure action, and immediately took steps to foreclose fifteen
days (15) after Appellants made a partial payment on the mortgage
being forclosed, and forty five (45) days before filing their
Summons and Complaint. Respondents' intentions were quite clear,
they wanted Appellants equity, and hid under a "gotcha!" approach to
achieving it.
70. Respondents Affidavit in answering the prior Order to Show
Cause that was just dismissed, stated that they need an
"undertaking" to "...in order to properly protect the Respondent's
interest herein" on page 4, of their paragraph 16. (not attached
herein).
71. Respondents never had legal standing as shown above having
giving the Lower Court subject matter jurisdiction, and therefore
not only have Respondents no legal basis for the filing of the
foreclosure action, Respondents have no right to request any
undertaking by Appellants, as Respondents have held Appellants
property hostage for over a year now as they have a lis pendens
filed against the property, and enjoy a huge and unreasonable equity
in the property. Respondents need no further protection.
&l0H
WHEREFORE your Appellants request of this Honorable Court that
injunctive relief be granted by way of issuing a temporary
restraining order and ordering Respondents to answer this
accelerated motion pending the final determination of the
Appellants' appeal, and any further and just relief that this Court
deems fair and just.
DATED: February 19, 2008
COMMONWEALTH OF VIRGINIA
COUNTY OF CARROLL
________________________________
Scott E. Webster
Defendant-Appellant pro se
204 Charlotte Drive
Dugspur, VA 24325
(276) 728-5006
(845) 265-2715 fax
______________________
Jean Allen Webster
Defendant-Appellant pro se
18 Fair Street
204 Charlotte Drive
Dugspur, VA 24325
(276) 728-5006
TO: Steven J. Baum
220 Northpointe Pkwy, Ste. G
Amherst, NY 14228
(716) 204-2400
DATED:_________________
2008
Sworn to before me, this ___________________day of ____________ ,
2008.
_________________________________________
Notary
&l0H