|
APPELLANTS' AFFIDAVIT IN SUPPORT FOR CONTEMPT OF COURT AND SANCTIONS returnable February 15, 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 OF A
Ft. Mill, SC 29715 |
|
Plaintiff-Respondent | MOTION FOR A CONTEMPT
-against- |
| OF COURT AND SANCTIONS
SCOTT E. WEBSTER and JEAN ALLEN WEBSTER |
| Appellate Division
Defendants-Appellant,s pro se | Docket No:
|
| 07-09263
--------------------------------------------+ and/or 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. This Affidavit is in Support for an order for comtempt of
court and other sanctions the Court deems fair against the following
entities and persons involved in the preparation and submission of
papers to this Court in attempt to destroy Appellants timely and
proper appeal process and Order to Show Cause motion, and the
prejudice Respondents have, and are protraying against Appellants in
order to gain an advantage.
5. Exhibit 01 is Appellants' Notice of Appeal in this instant
matter, and Exhibit 02 is Appellants Notice of Appeal for the
subsequent Judgement and Foreclosure and Sale which is a part of
Exhibit 04 Respondents Affirmation in Opposition for the instant
Order to Show Cause. The Notice of Entry for Exhibit 01 is the
yellow tab as a part of Exhibit 04 "entry Ex 04", and the Notice of
Entry for Exhibit 02, is Exhibit 04 "Entry Ex 02".
6. Exhibit 03, yellow tab "Amend Dec" is the Amended Decision
and Order which is the basis of the instant appeal process, and
Exhibit 03, yellow tab "Judgement" is the later Judgement of
Foreclosure and sale.
7. Appellants realize the seriousness of the intention of this
instant motion, but if not addressed at this point, the damage that
has been done, and will no doubt continue, that therefore it cannot
be ignored any further.
8. Exhibit 19 is a copy of a letter we overnighted to this
Court to be addressed with our Order to Show Cause (Exhibit 03)
regarding the dates of Respondents' Notice of Entry which was the
focal point of their Answer. Your Appellants stated in that letter
"... then we wish to file a formal complaint and challange to those
documents as an attempt to undermine Appellants instant Appeal and
Order to Show Cause." As no decision has yet been forthcomming,
this is our "formal complaint".
9. Appellants have included in some paragraphs of this
Affidavit acts and/or statements previously submitted to the Lower
Court by Respondents in their papers, and that while they may not
specifically be the purview of this Court at this time, it shows a
pattern of acts and behavior that are, and have not been unusual in
the past performance of Respondents towards Appellants.
10. Attached as Exhibit 01 is Appellants Notice of Appeal dated
September 28, 2007, filed with the clerk October 1, 2007, in the
above captioned matter. Appellants also filed a Notice of Appeal
(Exhibit 02) dated December 26, 2007, on Respondents Judgement of
Foreclosure and Sale which is also a part of this instant motion,
and filed with the clerk December 31, 2007, Appellate Docket No.
08-00349.
11. Appellants filed an Order to Show Cause to this Appellate
Court requesting a TRO and a stay of proceedings by Respondents in
their impending effort to sell at auction Appellants property, which
Order was signed and returnable December 28, 2007, (Exhibit 03).
12. Appellants notified Respondents of the impending court date
for the Order to Show Cause on Friday, December 14, 2007, by email
and fax around 4:30pm, that the Order to Show Cause would be
presented at the Appellate Division on Monday, December 17, 2007 at
2:00pm, (Exhibit 05).
13. An attorney "Jane Doe" representing Respondents appeared at
the designated time, who did not present Appellant with any contact
information.
14. This Affidavit in Suppport also addresses Respondents legal
standing in this matter, subject matter jurisdiction, raised before
the Lower Court, and addressed below with the recent ruling by Judge
Boyko in the Federal Court.
ACTORS AND ENTITIES AFFECTED IN THIS MOTION
-------------------------------------------
15. Respondent Wells Fargo Bank, N.A., is a lender and filed a
summons and complaint against Appellants on December 15, 2006, to
foreclose of Appellants property.
16. The law firm of Steven J. Baum P.C. is the law firm
representing Respondent Wells Fargo Bank, N.A.
17. Darleen V. Karaszewski, Esq. is an attorney with the Steven
J. Baum P.C. law firm, and has submitted several sworn affidavits in
the past in support, in opposition of various motions in the Lower
Court, and before this Appellate Court, the subject of this instant
motion. Attorney Karaszewski appears to be the primary attorney at
the Baum law firm in the above captioned matter.
18. Susan M. Silberman, Esq. is listed on the Notice of Entry
which was "dated December 14, 2007", Exhibit 06.
19. Rachel S. Czora, identifies herself on her Affidavit of
Service for Respondents Notice of Entry "That the deponent is an
employee of Pillar Processing, LLC, a service provider to Steven J.
Baum P.C...." (Exhibit 07).
20. Pillar Processing, LLC, is listed as "a service provider to
Steven J. Baum P.C...." (Exhibit 07), and Exhibit 10 is the New
York Secretary of State listing.
21. A female attorney representing Respondent Baum Law Firm,
showed up on December 17, 2007, the day Appellants presented the
Order to Show Cause (Exhibit 05 is the notification) identified
herein as Jane Doe, for she never presented a card or other
identification to Appellant Scott Webster.
THE BASIS FOR THIS INSTANT MOTION
---------------------------------
22. Respondents' filed their Affirmation in Opposition to
Appellants Order to Show Cause dated December 20, 2007, by Darleen
V. Karaszewski, Esq. Respondents Affirmation attached hereto
complete with exhibits as Appellants Exhibit 04, that had as
Respondents exhibit(s) untabbed, unreferenced set of papers which
were comprised of as:
1. Appellants Notice of Appeal
2. Respondents Notice of Entry (also as Exhibits 06 & 07)
3. Amended Decision and Order
4. Appellants RADI forms for this Appeal
5. Lower Courts Judgement of Foreclosure and Sale
6. Costs of Plaintiff
7. Affidavit of Service by Mail ("dated December 14, 2007")
by Rachel S. Czora (also as Exhibit 07)
8. Notice of Entry ("dated December 14, 2007")
(also as Exhibit 06)
9. Affidavit of Service by Mail (for the opposition
affidavit dated December 20, 2007)
23. Respondents in their Affidavit in Opposition to the Order to
Show Cause (Exhibit 04) stated clearly defined their following
position:
"It is respectfully submitted that, with the granting
of Respondent's application for Judgement of Foreclosure
and Sale, any right of Appellants to appeal from an
intermediate order terminates with the entry of a final
judgement. Matter of Aho, 39 N.Y.2d 241..."
(Respondents Affirmation, as Appellants Exhibit 04, page 2,
paragraph 6)
"Based upon the foregoing, the right of the Appellants
to appeal from the Amended Decision and Order granting
summary judgement to the Respondent terminates with the
entry of a judgement in the action, which in turn requires
the dismissal of the appeal from the summary judgement."
(Respondents Affirmation, as Appellants Exhibit 04, page 2,
paragraph 7)
24. In support of Respondents' position, as Affirmant Karaszewski
stated "...terminates with the entry of a judgement..." Respondents
had to back date their Notice of Entry and the Affidavit of Service
by Mail to support their paragraphs numbers 6 and 7 above, to make
it appear that their entry superceded Appellants Order to Show Cause
by three days.
25. Appellants Order to Show Cause was filed at 1:30pm, on
Monday, December 17, 2007, while Respondents dated their Notice of
Entry for Friday, December 14, 2007, and swore that it was served on
that same date, but the facts show otherwise, as shown below.
26. It is apparent that Repondents' position in order to defeat
Appellants instant Appeal and be able to ignore the merits of
Appellants Order to Show Cause, centers around this sole position.
Respondents never denied, nor challenged any of Appellants numbered
paragraphs in the Order to Show Cause or Appellants Memorandum of
Law.
SUBJECT MATTER JURISDICTION
-----------------------------
27. Respondents lacked standing when they filed the summons and
complaint, lis penance, and as such the Lower Court never had
subject matter jurisdiction over Appellants, as Respondent, (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 before the Lower Court, and will demonstrate below.
28. 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.
29. 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.
30 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, 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 14 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 14 page 3)
"Plaintiff's "Judge, you just don't understand how things
work" argument reveals a condescending mindset and
quasi-monopolistic system where financial institutions
have traditionally controlled, and still control the
foreclosure process. Typically, the homeowner who finds
himself/herself in financial straits, fails to make the
required mortgage payments and faces a foreclosure suit,
if not interested in testing state or federal
jurisdicational requirements, either pro se or through
counsel. "
(Boyko Order, Exhibit 14 page 5)
31. For the information of the Court, Appellants call attention
to a New York Times article Published, November 15, 2007:
"Judge Christopher A. Boyko of Federal District Court in
Cleveland dismissed 14 foreclosure cases brought on
behalf of mortgage investors, ruling that they had
failed to prove that they owned the properties they were
trying to seize. ... And it may encourage judges in
other courts to demand more documentation of ownership
from lenders trying to foreclose.
"We see a trend toward judges having enough
of this trampling of the rules and procedure and care
and reverence with which lawyers and litigants and
participants in the judicial process should comply," Ms.
Charney said. "Hopefully this will convince everybody
that the time to work out these home loans is now.""
32. Appellants, as 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 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
33. Appellants Exhibit 15 is a copy of the above noted
assignment which Respondents (Plaintiffs) submitted to the Lower
Court, and in Appellants Affidavit in Support of their Cross Motion
dated March 11, 2007, 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..."
34. 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 penance, and Summons and Complaint.
35. Appellants' Exhibit 17 is a printout of the minutes of the
Putnam County Court Record that clearly shows the dates on 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, "effective December 1, 2006.
36. This is clear proof that the Assignment took place well
after the filing of the lis penance, and Summons and Comlaint, and
the Lower Court never had subject matter jurisdiction, and was
compelled to dismiss the Summons and Complaint and vacate the lis
penance (Exbibit 03, yellow tab Lis Pen) as Appellants agrued 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." (REPLY to the Lower Court, page 2, Paragraph #7
dated November 27, 2007)
37. 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.
38. 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, and that Respondent Wells Fargo said the
satisfaction would be duly recorded.
39. Appellants Answer and other moving papers, which will become
a part of perfecting our appeal, have repeatedly shown the Lower
Court that Respondents never owned, or had control of the 1995
$162,000.00 mortgage, as they never had control of it until apparent
apparently January 10, 2007, almost one month after filing the lis
panance and complaint, and only after Appellants raised the issue in
their Answer to the Complaint. This issue will be taken up by
Appeallants in perfecting their appeal.
40. Respondents should be barred from submitting any affidavits
or other motions, answers or exhibits due to their initial lack of
jurisdiction and standing.
BACKDATING THE NOTICE OF ENTRY
-------------------------------
41. The facts however clearly show on Appellants Exhibit 08 and
Exhibit 09, copies of the envelopes Respondents sent to Appellants
at two different addresses containing the Notices of Entry of the
subsequent Judgement of Foreclosure and Sale, that the both postage
dates on each envelope are from the same postage meter
(#049J82043607) and is dated for December 17, 2007, NOT December 14,
2007, as sworn to on the Affidavit of Service by Rachel S. Czora.
42. Again, December 17, 2007 is the same date Appellant Scott
Webster personally presented Appellants Order to Show Cause to this
Appellate Division at the Monroe Place address at 1:30 pm for the
noticed 2:00 pm submission (see notice Exhibit 05).
43. The Courts attention is directed again to the attached
Exhibit 08 which is the envelope Respondents sent to Appellant Jean
Webster at the Virginia address, and Exhibit 09 which contains the
exact same date, and the same postage meter stamp sent to Appellant
at the New York address.
44. The envelopes addressed to Appellants contained the Notice
of Entry also contained a copy of the Affidavit of Service as sworn
to by Czora, said Affidavit being single staple to each Notice,
Exhibit 06.
45. Appellants call attention to Respondents Affidavit of Service
by Mail (Exhibit 06) by Rachel S. Czora who states under oath the
following:
"That on the 14th day of December, 2007, Deponent
served a true copy of the Notice of Entry of Judgement
of Foreclosure and Sale in this action on the attorneys
for the Defendants, ... by depositing a true copy of
same, enclosed in a postpaid properly addresses wrapper,
in an official postal depository at 220 Northpointe
Parkway, Amherst, New York, under the care and custody of
the United States Post Office Department within the
State of New York."
46. This is impossible for Czora or anyone else to mail the
Notice of Entry, AND INCLUDE an Affidavit of Service by Mail in the
same envelope, since to do so would involve retrieving the envelope
AFTER the postmark had been stamped and deposited "...under the care
and custody of the United States Post Office Department." Had Czora
actually mailed the papers when she claims, the postage date would
have had to read December 14, 2007, not December 17, 2007. Again,
she claims in her Affidavit that the mailing had already taken
place.
47. A check with the Putnam County Clerk's Office with Rochelle,
Thursday morning, 12/27/07, thirteen (13) full days after the
Respondents critical mailing of "December 14, 2007" to see if their
Office had received Respondent's Notice of Entry. They had not
received anything after the December 4th Judgement of Foreclosure
and Sale. Rochelle even checked the incoming papers to see if it
had been a matter of not being filed yet. Respondents have almost
always filed the original with the Clerk as have your Appellants
always done.
48. The actual mailing of the Notice of Entry took place, no
earlier than December 17, 2007, and not one day earlier, as it is
well settled that the service to Appellants or any other person or
entity can only be from the date of the postage, and not one day
sooner, and therefore Appellants were served, under law, no earlier
that December 17, 2007, and as Appellants will show below, well
after the Monday December 17, 2:00pm meeting to discuss the Order to
Show Cause and the TRO (Exhibit 20) with Chief Clerk James Pelzer.
"A plaintiff who submitted an affidavit containing
fabricated material was barred from using the fabricated
statement and its content in any manner, at trial or
otherwise."
(Quintana v. City of New York, 259 A.D.2d 296, 686 N.Y.S.
2d 408 (1st Dep't 1999))
SACNTIONS AGAINST CZORA AND PILLAR LLC
--------------------------------------
49. Appellants therefore request this Court to hold Czora in
contempt of court and any other sanctions this Court deems fair, for
the obvious false statements she swore to for submission to this
Honorable Court, in an attempt to harm Appellants by attempting to
have Appellants appeal dismissed.
50. Appellants therefore request this Court to hold Pillar
Processing LLC in contempt of court and any other sactions this
Court deems fair, for the obvious false statements employee Czora
swore to for submission to this Honorable Court.
51. Likewise, Susan M. Silberman, Esq. who dated her "Notice of
Entry" on December 14, 2007, whould have been complicit in using the
14th date, and then allowing three days before having it being
actually mailed. Again, at this time that become a critical
document due to the time element, and therefore Appellants request
sactions against attorney Silberman and the Baum law firm.
SACNTIONS AGAINST THE BAUM LAW FIRM AND
---------------------------------------
DARLEEN V. KARASZEWSKI ESQ.
----------------------------
52. In Respondents Affirmation in Opposition dated December 20,
2007, Appellants Exhibit 04, the affirmant stated:
"Darleen V. Karaszewski, Esq. pursuant to CPLR 2106,
under the penalties of perjury, affirms as follows:"
and
"A copy of said Judgement, along with Notice of its
Entry, is attached hereto, collectively, as Exhibit
"B"."
(Affirmation of Karaszewski, Exhibit 04 in paragraph 5)
53. In order to make the above statement, Affirmant Darleen V.
Karaszewski should have, and would have had to be fully aware of
that the actual critical mailing date was December 17, not December
14, as her, and Respondents entire defense is, and was, based upon
that Notice, which was mailed by postmark a mere three days before
she prepared her Affirmation.
54. Appellants therefore request of this Court to hold sanctions
against Karaszewski and the Baum law firm for the creation and
submission to this Court of papers obviously backdated to support a
position which is obviously not true, and designed to harm
Appellants with these documents and unlawful law practice.
ATTEMPTS TO DECEIVE THE COURT AND OTHERS
----------------------------------------
VIA PILLAR PROCESSING LLC
-------------------------
55. Respondents have at least put forth to this Court a red
herring regarding the service of papers to Appellants, apparently to
try and shield the Baum law firm and related attorneys from
problematic service of papers and dates, so what appears as an
independent entity is actually providing services for them, as Czora
states under oath the following:
"That the deponent is an employee fo Pillar
Processing, LLC, a service provider for Steven J.
Baum, P.C., attorney for the Plaintiff in the above
entitled action ... that your Deponent is not a party
to this action and is over the age of 18 years."
(from Affidavit of Service)
56. Appellants Exhibit 10 is a text printout from the website for
the New York State Secretary of State and it clearly shows the exact
same address, and suite, 220 Northpointe Parkway suite G, as the
Steven J. Baum law firm, Respondant's attorney. Text from that
exhibit:
NYS Department of State
Division of Corporations
Entity Information
Selected Entity Name: PILLAR PROCESSING LLC
Selected Entity Status Information Current Entity Name:
PILLAR PROCESSING LLC
Initial DOS Filing Date: JUNE 08, 2007
County: ERIE
Jurisdiction: DELAWARE
Entity Type: FOREIGN LIMITED LIABILITY COMPANY
Current Entity Status: ACTIVE
PILLAR PROCESSING LLC
220 NORTHPOINTE PARKWAY
SUITE G
AMHERST, NEW YORK, 14228
Registered Agent
NONE
57. Note that the initial filing of Pillar LLC was not until
June 8, 2007, so why the Baum law firm would need some other
"entity" to service their papers after over twenty years of
litigation seems strange since no officers or other ownership was
listed with the Secretary of State.
58. Appellants Exhibit 11 is a copy of a UPS label which also
shows Pillar's address as the same as Respondent's attorney, at 220
Northpointe Parkway.
PILLAR USES THE SAME POSTAGE METER AS BAUM
-------------------------------------------
59. Appellants Exhibit 12 is a copy of an envelope sent to
Appellant Jean Webster at the Virginia address, that was sent out
with the return address of Steven J. Baum at P.O. Box 1291, on
October 31, 2007, 129 days after the creation of Pillar Processing
LLC. and it uses the very same postage meter, number 049J82043607.
60. And Exhibit 13 is a copy of another of the envelopes sent to
Appellants which clearly show that the same postage meter or device
is used jointly, and interchangeably between the Baum law firm and
Pillar, whenever the situation is needed.
61. There is no logical reason that an entity located in the
same premises using the same postage meter, that it would take three
days to mail this now critical document to Appellants to establish
the now critical date in support of their attempt to destroy
Appellants instant appeal process.
NEED BY RESPONDENTS FOR THE DECEMBER 14TH DATES
-----------------------------------------------
62. On Monday, December 17, 2007, Appellant Scott Webster filed
the Order to Show Cause after notifying Respondents the prior Friday
December 14, 2007 (Exhibit 05) and a female attorney said to be
representing Respondents showed up in response. While awaiting for
Chief Clerk James Pelzer to present the Order to Show Cause, this
attorney, who never presented Appellant with a card or other
identification, asked to review the Affidavit and Memorandum of Law,
a copy of which Appellant had. As a courtesy Appellant allowed the
representive to read Appellants copy of the Motion and Brief.
63. Shortly after reading the papers after constantly making
notes, the Attorney suddenly arose to make the first of several
phone calls, presumably to notify Respondent law firm of the
potential seriousness of the Order to Show Cause, and hence the need
to get their Notice of Entry in the mail that same day in an effort
to support their above stated "legal" position, and to aviod
answering Appellants facts. This would explain the December 17,
2007 postmark date.
BREACH OF ORAL STIPULATION ON THE TRO
-------------------------------------
64. On Monday December 17, 2007, as a result of our notice to
the Respondents of Friday late afternoon (Exhibit 05) attorney Jane
Doe for Respondents appeared at the Courthouse, and during our
meeting, assured both Chief Clerk James Pelzer and I, that nothing
would, or really could be done, and that Respondents would they
until after the decision on the Show Cause Order (Exhibit 20) and
besides that they would take at least four to five weeks to begin to
take further action.
65. At that time Mr. Pelzer brought up the fact that that would
render the TRO request unnecessary, and I, perhaps foolishly
agreed. After all, their legal representive is an officer of the
court. On that basis, the three of us agreed that that rendered the
TRO unnecessary, and so Mr. Pelzer crossed out the TRO provision
(Exhibit 20) on Appellants Notice before submitting it to a judge
for signing. A telephone call on Monday, December 31, 2007 with
Mr. Pelzer confirmed this understanding. Appellants assert that
this was an oral stipulation, with two officers of the court
present.
66. However, on the prior Friday morning, December 28, 2007, the
return date for the Order to Show Cause, Appellant Scott Webster,
received a disturbing telephone call at our Virginia residence, from
John Guttridge, Esq. the assigned Referee in the instant matter to
tell him what he described as a notification call that he was
preparing to file the notice for the auction of our property because
the Respondents were proceeding with their intentions for the sale
of our property without further delay. Guttridge also stated he was
told that the Judge denied and crossed out the TRO provision.
67. Appellant Scott Webster told Mr. Guttridge of the assurances
and the meeting with their representive lawyer that Monday, and the
reason the TRO had been crossed out, not by a judge, but agreement,
Mr. Guttridge pointed out that the Baum Law firm had forwarded to
him a copy of the Order for the Stay, and made a point that the TRO
provision had been crossed out, and therefore he "was under court
order to proceed with the notice of sale" right away.
68. Appellants are therefore requesting this Court to hold
sanctions as it deems fair against attorney Jand Doe representing
the Baum law firm, and the Baum law firm for this decption against
Appellants and this Honorable Court.
PATTERN OF DECEPTION AGAINST APPELLANTS
----------------------------------------
69. Appellants submit as just some the following examples to
show a continued pattern of deception by these professional
litigators, all with the selfish intent to harm Appellants to gain
the equity of Appellants property (see paragraph 82).
70. Respondents own prepared Judgement of Foreclosure and Sale
(Exhibit 04) boldly makes the following statement which is totally
untrue as Appellants submitted an answer with eight (8) affirmative
Defenses, sixty three (63) paragraphs, and two counterclaims, all
part of the official record in the Putnam County Courthouse.
"...and that none of the Defendants had served any
answer to said complaint, nor had their time to do so
been extended..."
(Judgement of Foreclosure and Sale, page 1 Exhibit 02)
71. As for Respondents illegal motion to the Lower Court and a
major point of the instant Appeal, Respondents falsely asserted to
the Lower Court on their page 4, Paragraph #18 dated November 27,
2007:
"With regard to said allegations, it is not the
Plaintiff's intent to fully argue the issues on
appeal at this time. Rather, Plaintiff will merely
say that the Decision and Order granted on April 20,
2007 contained a de minimis Court scrivener's error
which was corrected by the August 27, 2007 Amended
Decision and Order."
72. Appellants addressed this matter in their Order to show
Cause which Respondents failed to answer:
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.
Non Curatlex ("The court does not concern itself with
trifles") ISBN 51795 CPLR 5501[a][1]
73. 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 delt with judicially" so they knew that they 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".
74. 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.
75. 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
firms attorneys from the disciplinary rules and sanctions, rises to
the level that the Lower Court should never entertained or signed
(actually rubber stamped) Respondents' motion. Again this is
obviously a deception of the legal process and to the Courts, and
should be addressed with sanctions.
76. Another example of deception to the Court, and against
Appellants, where we stated in our Affidavit in Opposition to
Respondent's (Plaintiffs) answer at paragraph:
"14. Plaintiffs recent Affidavit accused Defendants
of "Defendants state that they are using an 'unusual
technique' for obtaining information." What a
distortion. Defendant's covering letter to Mr. Baum
clearly stated "In our Demand, we have taken the
unusual technique, as Scott has done several times in
past litigations, to indicate for some of the requests
the reason for asking the question or requesting a
document..." This is for the clarification of the
respondant designed to help and define, not to have it
prejudicially tossed back in our face.
77. Appellants also show a further pattern of decption when
Respondents ignored Appellants demand for a Bill of Particulars
where we stated again in our Affidavit in Opposition dated March 23,
2007, to Respondent's (Plaintiffs) answer at our paragraph:
"15. Plaintiffs filed the instant Motion for
Summary Judgement and Order of Reference notarized
February 16, 2007, fourteen (14) days after Plaintiff's
received Defendants Demand. This Demand was not even
mentioned in the Affidavit of Sean Nix, dated February
13, 2007 in support of their instant motion. Not until
Defendants brought their Demand to the attention of the
Court requesting an order of this Court demanding
compliance in their Notice of Cross Motion and in their
Affidavit in support, did Plaintiffs now address the
issue they have chosen to ignore. Upon information and
belief, that being the premature filing of Plaintiffs
Motion for Summary Judgement before proper and
reasonable discovery had been completed, Plaintiffs now
hide behind "First and foremost, pursuant to 3214(b),
discovery is stayed pending outcome of Plaintiff's
summary judgement motion" and is all the more reason
for this Court to not grant summary judgement, as
Defendants have shown a preponderance of issues that
need to be resolved by way of discovery. Summary
judgement motions should never afford a party an escape
from discovery, but be a result of proper discovery.
Plaintiffs only reason for not complying is
"Notwithstanding, it is well settled that the MERE HOPE
that evidence sufficient to defeat a motion for summary
judgement may be uncovered during the discovery process
is NOT ENOUGH to defeat a motion for summary
judgement."
78. Appellants showed in our Affidavit in Opposition dated March
23, 2007, where Respondents deliberately left out critical documents
in Respondent's (Plaintiffs) answer at Appellants paragraphs:
"17. Fishing expedition? Substantive
documentation? Irrelevant? By Defendants coming forth
and submitting to the Court the Consolidation Agreement
and the Consolidated Mortgage in Defendants' Affidavit
in Opposition and in Support of Cross Motion (Exhibits
06 & 07) have now caused Plaintiff to weakly admit what
they refer to as stated in the Affirmation in
Opposition by Tracy M. Fourtner in paragraph 40 stated
the following excuse:
"Plaintiff erroneously and inadvertently failed to
attach a complete copy of the mortgage documents to
Plaintiff's application for summary judgement".
"18. Defendants point out that it should have read
"the correct copy of the mortgage documents", as any
reference to the $162,000.00 Mortgage should not have
been referenced on the Complaint, and never referred to
in any of the moving papers since, using Plaintiff's
own documents HAD BEEN PAID OFF.
"21. Based on the above quote from Plaintiff,
Plaintiff boldly asks this Court in their paragraph
40:
"It is respectfully requested that the Plaintiff
be allowed to amend its application for summary
judgement to include a complete copy of the mortgage
documents as attached hereto as Exhibits "A", "B",
"C" and "D"."
79. Appellants showed the Lower Court in our Affidavit in
Opposition dated March 23, 2007, that Respondents lacked subject
matter jurisdiction in the matter at paragraph:
"32. Defendants submit this as proof, that at the
time of the filing of the foreclosure Complaint, AND
THE NOTICE OF PENDENCY that Plaintiffs did not have in
their hands the Mortgage or the Note being foreclosed,
and therefore lacked jurisdiction to begin this
foreclosure action."
80. See also paragraph 27 regarding further expansion on subject
matter jurisdiction, however Respondents, in trying to shield from
the Court and the record the true date of their mortgage assignment,
which is further proof that Respondents realized, at that time of
the foreclosure action, they lacked, and the Court lacked subject
matter jurisdiction, where again in Appellants' Affidavit in
Opposition dated March 23, 2007, to Respondent's (Plaintiffs) answer
at our paragraph:
"38. In Plaintiffs paragraph 44 for item i, iii,
iv, v, vi, Plaintiff specifically list a date for each
item, however for item ii:
"Assignment of Mortgage into Plaintiff of the
Note and Mortgage for $162,000.00"
"The notable absence of a date can only be deliberate
in its intent because the date of said item ii occurred
after the filing of of the so called Consolidated
Mortgage of June 16, 2005, by more than one and a half
years, and after the filing of the Complaint.
81. Appellants in showing this Court Respondents prior
statements to the Lower Court which they knew were false and
prejudicial where Appellants again in their Appellants' Affidavit in
Opposition dated March 23, 2007, to Respondent's (Plaintiffs) answer
at our paragraphs:
"46. Plaintiffs present to this Court in paragraph 77
that Defendants are staying "rent-free" yet plaintiffs
continue to add finance charges, etc. to the account (see
Complaint). What Defendents said in their hardship letter
to Wells Fargo, Plaintiffs first Affidavit tab "K" of
Defendants' Answer, Exhibit 05:
"Wells Fargo will be paid. All we are asking
reasonable time to sell the house without unreasonable
interference."
"49. Plaintiff prejudicially puts forth in the
Tracy Affidavit paragraph 19 totally untrue assertion:
"Nevertheless, Plaintiff attempted to work with the
Defendants through its loss mitigation department in
order to avoid foreclosure of the Mortgaged Premisis.
However Defendants admit in their letter at page 4
that they have refused to complete the borrower
financial form, which is required by the plaintiff
prior to considering any loss mitigation options
available to borrowers."
"And continuing on paragraph 20:
"Having failed and refused to cooperate with Plaintiffs
loss mitigation department, it is respectfully submitted
that the Defendants cannot now claim that they have
some entitlement to delay the forclosure action any
further while attempt to sell the Mortgaged Premisis,
which has been on the market since JULY 2005.
"50. In fact Plaintiffs NEVER opened a file, contacted
Defendants with any kind of written acknowledgement, or
telephone call, or any indication that Defendants hardship
letter had even been read, or assigned a contact person
until Defendants received a vague, ambiguous, unsigned
letter dated January 22, 2007, that was not connected to
Defendants requests in any way. When Defendants called the
number on the letter on or about January ?? 2007 and were
told for the first time that we were being "uncooperative".
"53. This is further substantiation of the belief that
Plaintiff is trying to get our Property at a forced auction
to reap the equity Defendants rightfully own. At stated in
Defendants other Affidavit, forcing a foreclosure over less
then $25,000 owed in back mortgage payments for a $350,000
equity balance is very tempting.
"54. It was sixty eight (68) days from Plaintiffs
received Defendants hardship letter until Plaintiff filed
the foreclosure action, and they never even bothered to look
at until after filing the foreclosure action, and then only
when Defendants raised the issue in their Answer.
RESPONDENTS' REAL INTENT WAS ALWAYS TO TAKE APPELLANTS EQUITY
-------------------------------------------------------------
82. In recently reviewing Respondents submission to the Lower
Court for their Judgement of Foreclosure and Sale Appellants came
upon the troubling document (Exhibit 18) that was NOT included with
Respondents original motion for the initial Summary Judgement, but
the individual pages were.
83. 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.
84. This critical document is proof that Respondent Wells Fargo,
never intended to work with Appellants, and that Steven J. Baum,
very well may have purchased the loan obligation as Appellants
alleged in paragraph 7, why else would Respondents leave out the
this critical page.
"7. Also on that same document at the lower left hand
corner is a notation "R-R to" the address of Plaintiff's law
firm Steven J. Baum, PC at 220 Northgate Pkwy... Why this
"Assignment" would involve the law firm on this document
raises the question whether the law firm was the purchaser
or is the actual owner of the Note and Foreclosure action,
and not acting for the stated Plaintiffs herein. If this is
true, it would indicate that the "Assignment" presented as
---> evidence was back dated to "December 20, 2006" and then
stated on that document "This assignment is effective as of
---> the 1st day of December 2006." Defendants again call on the
Court to grant further discovery, including EBTs, in order
to ascertain the validity of the documents being "relied
upon" by Plaintiffs herein.
"11. Defendants also raise the question on Plaintiff's
exhibit tab "F" attached to the Sean Nix Affidavit in
Support, which is a document from PRIME TITLE SEARCH, LLC.
which is undated, but faxed to someone on 02/16/2007 00:42,
(see bottom of page) and carries the Clerk's stamp of "BK
---> 5009PG0470". Plaintiffs "G" is an undated, unsigned
document which is presented herein to appear as a
---> continuation and a "result" of the "PRIME TITLE SEARCH"
These three undated, unsigned non official pages are merely
heresay "notes" which could have been produced by anyone,
and therefore do not rise to the level for probate. Their
validity however is critical in this action, and especially
for the proper defense against this foreclosure action.
"12. Defendant's point out that the first of these three
"documents" (Plaintiffs "G") is titled "MORTGAGES" and the
first line states "(A) MORTGAGE TO BE FORECLOSED" ...
$162,000.00 which Defendants have shown to be false,
misleading, prejudicial, the basis for the Lis Penance, has
been paid off by Plaintiffs (see Defendants Affidavit
Exhibits 02-A, 02-B, 02-c, and is totally false."
(this Affidavit, Exhibit 03 yellow tab)
WHEREFORE, Appellants request this Honorable Court to hold each
and every one of the entities and actors as defined in Appellants
Notice of Motion dated January 22, 2008, together with any other
relief the Court finds to be just and proper.
Dated: January 22, 2008
COMMONWEALTH OF VIRGINIA
COUNTY OF CARROLL
_____________________
Scott E. Webster
Appellant, pro se
204 Charlotte Dr
Dugspur, VA 24325
(276) 278-5006
18 Fair Street
Cold Spring, NY 10516
_____________________
Jean Allen Webster
Appellant, pro se
204 Charlotte Dr
Dugspur, VA 24325
(276) 278-5006
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