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APPELLANTS' REPLY AFFIDAVIT TO RESPONDENTS AFFIRMATION IN OPPOSITION returnable March 3, 2008 |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT
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WELLS FARGO BANK, N.A. SUCCESSOR BY | REPLY
MERGER TO WELLS FARGO HOME MORTGAGE, INC. |
3476 Stateview Boulevard | AFFIDAVIT
Ft. Mill, SC 29715 |
|
Plaintiff-Respondent | ORDER TO SHOW CAUSE
-against- |
| FOR A STAY
SCOTT E. WEBSTER and JEAN ALLEN WEBSTER |
| Appellate Division
Defendants-Appellants pro se | Docket No:
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| 08-00349
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STATE OF NEW YORK.........)
COUNTY OF PUTNAM..........) ss:
1. Defendant-Appellant Scott E. Webster, pro se, and making
this affidavit sworn to on February 28, 2008, (hereinafter
"Appellants"), and being familiar with the facts in the
abovecaptioned matter, state to this Honorable Court under the
penalties of perjury as follows:
2. That this Affidavit is in response to the Affirmation
in Opposition submitted by Darleen V. Karaszewski, Esq. to
Appellantss Order to Show Cause returnable March 3, 2008, and
I will respond to Respondents paragraphs by their number.
Respondent and their attorneys are often referred herein as
Respondents as their actions reflect
3. Respondents' major claim that they need an "undertaking" if
this Court grants a stay, for all the major reasons Appellants have
stated in the moving Affidavit in Support. Appellants call
attention to this Court that nowhere in Respondents Affirmation do
they deny or contest any of the paragraphs of Appellants' Affidavit
in Support, in particular regarding the illegal motion which was the
basis for Respondents "final" judgement.
4. Appellants remind this Court that they have filed a Motion
For a Contempt of Court and Sanctions, returnable Friday, February
15, 2008, which has not yet been decided, for just some of the
following reasons; a) Respondent's attorney's backdated their notice
of entry and submitted it to this Court; b) breach of oral
stipulation/agreement; c) lacked standing ab initio and should be
barred from submissions to this Court in this matter; d) ex parte
communications with the Lower Court; e) using a legal assistant to
submit a motion to the Lower court.
RESPONDENTS HAVENT ADDRESSED THE ISSUES IN THE MOTION
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5. Respondents assert in their response page 2 paragraph 3 "In
so much as the Appellants are attempting to argue the issues they
have raised on appeal, without providing Respondent with an
Appellants' brief or perfecting their appeal, it is not your
Affirmant's intention to argue those issues at this time." In fact,
Respondents neither deny or challenge any of Appellants detailed
paragraphs, nor the over twenty exhibits submitted on the Motion.
6. Appellants point out that the intention in the Order to Show
Cause with its extensive use of documentation in support, is to show
this Court the very, very, strong likelihood of Appellants being
successful on the perfected appeal, and that if Respondents are
allowed to auction Appellants property it would constitute severe
hardship and further financial damage if the stay is not granted.
Siegel Section 535 on Injunctions and Stays states:
"Here CPLR 5519 supplies the governing provisions
and in some detail. This category of stay seeks to
prevent the respondent (assume he is the plaintiff)
from realizing on his judgement or order while an
appeal is taking place, the appellant's hope (assume
the appellant is the defendant) being that he will win
the appeal and get the disposition reversed. If that
does happen, but without a stay having been granted,
and the judgement has meanwhile been enforced, e.g.
a money judgement has been paid through property of
the appellant levied on by the sheriff, the appellant
will afterwards be put to the trouble of seeking
restitution. He may in the meantime have been
divested of valuable property, and without any guarantee
that such restitution as may be ordered against
respondent will be collectable."
ILLEGAL GRANTING OF THE UNDERLYING
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AMENDED DECISION AND ORDER
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NEW EVIDENCE OF EX PARTE COMMUNICATIONS
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THE ALTERING OF COURT PAPERS
AND THE QUESTIONABLE JUDGE'S SIGNATURE
6. One of the major points being Appealed was the granting by
the Lower Court, in violation of black letter law, by Respondents
illegal motion that was never filed with the Clerk, that no fee paid
8020(a), and was in violation of the law of the case. The granting
of that "motion" resulted in the Amended Decision and Order which is
stated in Appellants' moving Affidavit on page 11 paragraphs 33, and
34. At the time of preparing the Order to Show Cause Appellants
were at their home in Virginia, and did not have easy access to the
Court's records.
7. Appellants paragraph 34 of the moving Affidavit, asserted
that there was cooperation and obvious ex parte communications
between His Honor and Respondents. The pages Appellants attached as
Exhibit 03 showed partial (only the lower portion of the numbers
appear) fax transmittal numbers at the top of the pages that were
sent to Appellants with Respondents Notice of Entry for the
"Amended Decision and Order".
8. However, inspection by Appellant Scott Webster after
returning from Virginia to personally file this Order to Show Cause,
checked the Putnam County Court records and found the very
disturbing document attached hereto as Exhibit 01. This Exhibit is
a full copy of Respondent's Notice of Entry as filed with the Clerk,
and this document clearly shows the full fax headings across the top
of the page.
9. Exhibit 01 shows that on August 20, 2007, legal assistant
Sherri Beals faxed from the Baum Law Firm (Respondent's attorney) a
request which was legally a motion to the Lower Court, of their own
worded "Amended Order and Decision" WHICH WAS ALREADY SIGNED BY
JUDGE O'ROURKE, as shown on page 4 (Exhibit 01) of the Amended
Decision! The following words on the Beals covering letter Exhibit
01, is therefore a complete lie as it had already been "executed"
and submitted to the Lower Court and filed in the Court's
record.
"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."
10. The hand written date is post dated to seven (7) days later!
This was not a casual error, as the covering page states "From:
S.Beals" and it is clearly marked and dated "August 20, 2007" as is
the date at the top of each faxed page which reads "8/20/2007". The
Notice of Entry to Appellants was mailed on August 20, 2007, shown
by the postmark, and clearly stated in Appellants' letter to the
Lower Court. See Exhibit 14 in Appellants Affidavit which is our
faxed outrage to His Honor at this attempt by Respondents to bypass
the black letter rules of Court procedure and the law of the case
doctrine, to gain an advantage over Appellants by trick and fraud.
DIFFERENT SIGNATURES
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10. The Court's attention is directed to the attached Exhibit
02, which is a copy from the Notice of Entry sent by Respondents to
Appellants (Exhibits 03 and 04 of the moving Affidavit) which shows
a changed and different page four from Exhibit 02, and it has an
entirely different signature for his Honor, that being a rubber
stamp.
11. It is abundantly clear from even from a casual examination
of the papers that the two "signatures" are totally different and
have been altered by someone. The Courts attention is also directed
to examine Exhibit 01, the one with the apparent "hand signature".
The top of each page that shows punch holes that had been altered
or blanked out on the "Amended Decision" what was sent to
Appellants. This copy was filed by Appellants with their Notice
of Appeal, Exhibit 08 in the moving Affidavit.
12. Not only were the punch holes covered up, but the Judge's
"original hand signature" had been blanked out, and an apparent
rubber stamp substituted. Someone had altered the document filed
with the County Clerk, and fraudulently sent a copy to Appellants
hoping to shield something from us.
13. Appellants have no way of knowing at this point if there
ever was a real "Amended Decision and Order" since there was no
legal notice of motion to reargue, no motion listed in the Court's
minutes, no fee paid to renew and reargue 8020(a), that Respondents
illegal motion to the Lower Court appears to be a complete fraud on
Appellants, and this Court should deny Respondents any consideration
what-so-ever in the interest of protecting the integrity of the
Judicial System, for Respondents' involvement in the creating and
submitting of altered documents,
14. Whom ever altered the judge's signature, if it was ever
properly and legally singed in Respondents' Amended Decision and
Order, the Baum Law Firm is wholly involved by having had both
versions in their possession and sending them out.
15. There must have had to be extensive ex parte communications
in order to create and allow the above actions, actions which rise
to the level of the removal of the offending judge, and likewise the
altering of documents will prevent them from being used in probate.
And in this matter, the Amended Decision and Order is the basis for
the final Judgement for Foreclosure and Sale (Exhibit 02).
16. Appellants believe this egregious activity which strikes a
blow at the integrity of the legal system is so serious that the
Appellants are going to forward this matter not only to the
Committee on Judicial Conduct, the Office of court Administration,
the New York State Attorney General, and the FBI task force which
was just recently created to deal with lenders that are taking
advantage of the public.
17. This kind of conduct should not be condoned by this
Court and Respondent's foreclosure action should be dismissed
entirely.
RESPONDENTS DO NOT NEED AN UNDERTAKING
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18. Respondents paragraph 8 states "It is respectfully requested
that a stay NOT be granted to the Appellants. The actions of the
Appellants have been aimed at delaying and harassing the
Respondent." Appellants call attention of the Court that it has
been the Respondents that have done the harassing by filing illegal
motion, altering documents, creating their own carefully worded
pre "signed" Amended Decision and Order, failing to legally file a
motion, failing to pay for the motion, violating the doctrine of the
law of the case, failing to file a proper CPLR 2221 motion to
reargue, misleading and prejudicial statements of Appellants actions
on Affidavits, just to mention a few. The worst however is the
deletion of the findings of facts in their own carefully worded
Amended Decision and Order.
19. Respondents stated on their own prepared and worded
Judgement of Foreclosure and Sale, that Appellants never answered
the Summons and Complaint as follows: "...and that none of the
Defendants [Appellants] had served any answer to said complaint, nor
had their time to do so been extended..." This is a complete lie.
Appellants filed a sixty three (63) paragraph answer with counter
claims and eleven exhibits.
20. The above false statement about Appellants not filing an
answer almost caused Appellants to be denied this instant Order to
Show Cause to taken before an associate justice for signing, as the
attending clerk stated that there was no basis for the motion since
Appellants had "never answered the complaint".
21. And Respondents have the nerve to claim that the Appellants
are harassing them by abusing and delaying the legal system?
Respondents could have filed their Judgement for Foreclosure and
Sale months ago from the original Decision and Order dated April 27,
2007, but Respondents waited until June 12, 2007 to even file their
Notice of Entry, and then waited further to file their illegal
Amended Decision and Order submitted August 20, 2007, and then
waited further to submit their judgement granted November 30, 2007.
During this time Respondents never contacted Appellants for any
kind of settlement or working arraignments with Appellants, despite
two pre trial "conferences" set by the Lower Court. As the Court
can see, Respondents have been no rush to expedite this matter.
22. Respondents misleading paragraph 17 states "Summary
Judgement was granted by the Court on April 27, 2007, Judgement of
Foreclosure and Sale was subsequently granted on November 30, 2007."
Respondents have completely and deliberately left out their Amended
Decision and Order which was "granted" August 27, 2007, and is the
underlying Decision for the Judgement. See Appellants' Exhibit 03,
and the copy of the intermediate notice of appeal regarding
Respondents Amended Decision Exhibit 08.
23. Respondents request for an undertaking in paragraph 19
states "...but also the value of the use and occupancy of the
mortgaged premises from September 28, 2007 through the determination
of this appeal." Respondents' actions have caused the loss of at
least three sales of the property because of Respondents filing of
the lis pendance and the filing of erroneous mortgages. Appellants
have consistently been attempting to sell the premises and have moved
into their Virginia property, yet have had to maintain and "occupy"
an empty house, with Appellant Scott Webster sleeping on a love
seat. The only "use" has been in maintaining and showing the
property for sale.
SUBJECT MATTER JURISDICTION
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24. Respondents attempt to make repeated points regarding the
transfer of ownership of the Mortgage without offering any actual
proof of the transfer. The Assignment of the Mortgage, the one that
was paid off and satisfied (see Exhibits 10 & 11) clearly states
"Assignor in consideration of One or More Dollars ($1.00) paid by
Wells Fargo Bank, N.A. ... Assignee hereby assigns to ] Assigns to
Assignee, a certain made by Scott E. Webster..." which is clearly a
contract of sale, dated "On the 20th day of December in the year
2006..." which is clearly after the filing of the lis pendance,
summons and complaint.
WHEREFORE your Appellants request of this Honorable Court that
injunctive relief be granted by way of issuing a stay of the
enforcement of the Judgement for Foreclosure and Sale of
Appellants property without an undertaking pending the perfecting of
Appellants' appeal, and any further and just relief that this Court
deems fair and just.
DATED: February 29, 2008
COMMONWEALTH OF VIRGINIA
COUNTY OF CARROLL
________________________________
Scott E. Webster
Defendant-Appellant pro se
204 Charlotte Drive
Dugspur, VA 24325
(276) 728-5006
______________________
Jean Allen Webster
Defendant-Appellant pro se
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