DEFENDANTS-APPELLANTS' REPLY AND CHALLENGE TO
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RESPONDENT'S PRELIMINARY STATEMENT
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PLAINTIFF-RESPONDENTS' ATTEMPT TO MALIGN APPELLANTS
Plaintiff-Respondent's Brief is replete with accusations and
inuendos to prejudice the Court against Defendants-Appellants with
repeated statements which we quote:
"The Websters' arguments clearly evidence that they
misread and misunderstood the legal basis of Wells
Fargo's foreclosure action."
(Plaintiff-Respondent Brief, page 2)
"Due to their continued confusion in reading the motion
papers pending before the Court, the Websters' opposition
papers to the supreme court were muddled amd inaccurate."
(Plaintiff-Respondent Brief, page 3)
"As a result, Judge O'Rourke's order dated April 27, 2007,
contained a minor clerical error. (R. A-25 - A-29)
(Plaintiff-Respondent Brief, page 3 par 2)
Absurd as it sounds, that according to Respondent's law firm,
Appellants' challenging legal papers to Respondent's foreclosure
action caused Judge O'Rourke to issue a Decision and Order with a
"minor clerical error" on it, and that "Wells Fargo's counsel
noticed the error in August of 2007 and then sent a letter to Judge
O'Rourke by a mere legal assistant. Defendants-Appellants were not
confused at any point, nor misread any of the exhibits and motions,
with the exception of the consolidated mortgage, which Defendants
asserted in their answer and cross motion, was a fraud. At no point
in any of the motion papers, and even the motions Defendants brought
before this Court, did Plaintiff assert or claim that Websters were
confused or misread anything.
Plaintiff's new position only before this Appellate Court is
that foreclosure action is and was on the consolidated mortgage that
was never filed in the Clerk's Office as a mortgage, and this new
position created major trialable issues of fact that was raised in
Defendants Cross Motion, and the only way the Lower Court could
protect Plaintiff and its law firm, was to dismiss Defendants Answer
and to treat it as a limited notice of appearance. In fact,
Defendants demanded a jury trial, which if allowed would have surely
gone against Plaintiff.
Plaintiff-Respondent asserts that this was an "ordinary
foreclosure" which is entirely untrue. Plaintiff who's attorneys
are experienced? litigators have had to plead several times de
minimus scrivners errors on their side, falsely claimed that
Defendants-Appellants failed to answer the Complaint (See Appellants
Brief, first paragraph of the Preliminary Statement), claimed to
belatedly discovered a "minor error" on the Original Decision and
Order for which they had one of their legal assistants send
Plaintiff's major revision to the Lower Court, made major
mistatements on the original Complaint, made major and false
representations on their Notice of Pendency, falsely stated in their
original motion for summary judgement by Sean Nix, an officer of
Plaintiff, who swore under oath that that he was familiar with all
the facts, and then falsely stated then Defendants used the
refinancing money to purchase a "vacation home" after reading
Defendants fully disclosed hardship letter which he stated he read
that declared the new property was the Defendants new home, and that
the mortgaged property was, and had been on the market.
Contrary to Respondent's Brief, this was, and is, no "ordinary
foreclosure action" since Plaintiff has misrepresented their action
in the moving papers, exhibits, the mortgage being forclosed, by
shielding critical information like the consolidated mortgage, as
detailed in Defendants Cross Motion to Plaintiff's motion for
summary judgement, and so on.
Plaintiff-Respondent's new position that they are/were suing not
on the original 1995 mortgage (paid in full and satisfied) but on
the 2005 consolidated mortgage, is critical to Plaintiff in order to
save its foreclosure action which has been bungled by them, ab
initio. And Defendants should not be prejudiced or penalized for
their errors.
Having been caught by Defendants-Appellants, Plaintiff is
attempting to now show this Court that their entire action was
really based on the Consolidated Mortgage, which was never filed
with the County Clerk as a mortgage, and which they tried to shield
from the Lower Court in the litigation that has transpired. As will
be stated under the following Reply Points, it was Defendants in
their Cross Motion as evidence in support of their position that
Plaintiff was foreclosing on the paid and satisfied original
mortgage.
Plaintiff-Respondent has come before this Court, and the Lower
Court as the "victim", and accused Defendants of delaying the
foreclosure action, because they know that they should, and will,
lose all, or at least significient points on this appeal, and that
having the probability of facing a jury later to explain why, as
officers of the court coerced the Lower Court to allow, inter alia,
a foreclosure action on a paid and satisfied mortgage is the real
reason Plaintiff has not actually auctioned off the mortgaged
property.
Defendants remind the Court, as they did before the Lower Court,
that they had requested in their hardship letter for a workout of
some type as the property was on the market and Plaintiff enjoyed at
least a $350,000.00 equity over the mortgage, but they ignored
Defendants reasonable and perfectly normal request and went ahead
with the foreclosure, and as the Indexed Record shows, began
foreclosure action some three months before the legal time for
Defendants to remedy any default. Plaintiff's agents repeatedly
told Defendants that Plaintiff did not want the property, would work
things out, don't worry, and led Defendants to believe everything
would work out especially since the house was on the market, and
Defendants were sending many very interested parties to Plaintiff's
own broker/agent. All Defendants wanted was for Plaintiff to hold
off until the property was sold. Plaintiff would have already
collected the mortgages, and referring to themselves as "victims" is
totally of their doing.
Plaintiff-Respondents' Statement of Facts contain many
mis-statements, deceptions, and for lack of a better word outright
lies, as Defendants-Appellants' Indexed Record clearly supports, and
the FACTS must be corrected. Defendants-Appellants often refer to
the combined efforts of Plaintiff-Respondent and their attorneys
jointly, as Respondent's attorneys role and actions far exceed that
of a firm representing a client, to whit, Respondent's attorneys,
the Steven J. Baum law firm began foreclosure proceedings sua sponte
almost two months before being assigned the case from "client" Wells
Fargo, and therefore has been litigating on their own belalf under
their "client's" protective umbrella.
PLAINTIFF-RESPONDENT'S NEED TO CHANGE TACTICS
That in order to maintain Plaintiff-Respondent's suit, it is
now necessary for them to:
a) shift the attention of the Court away from the original
$162,000.00 1995 Mortgage which they initiated the foreclosure
action on, a mortgage which was paid and satisfied;
b) claim that the 2005 "consolidated" mortgage what they
initiated the foreclosure action on;
c) come before this Court and falsely assert that Respondent
submitted the consolidated mortgage as an exhibit as evidence to the
Lower Court, a total lie;
d) make false statements that Defendants-Appellants Appellants
misread, and were so confused about the motion papers, and submitted
"muddled" papers to the Lower Court that so confused Judge O'Rourke,
that his original Decision and Order contained an "error" often
described by Plaintiff as a "de minimus court scrivners error", that
with Defendants having over thirty years litigation experience
a claim is that is absurd;
e) Claim to be the injured party when they chose foreclosure and
did everything to prevent Defendants-Appellants from selling their
mortgaged property which had been on the market prior to the
refinancing with Wells Fargo by failing to file the legally required
satisfaction of mortgage on the foreclosed mortgage for which
Appellants have the certification of loan payoff and letter stating
a satisfaction will be recorded with the County Clerk;
f) Claim to be the injured party when Plaintiff-Respondent's own
attorney began the foreclosure action prior to their client
notifying them almost two months later.
PLAINTIFF-RESPONDENTS TRYING TO STEAL THE EQUITY IN
DEFENDANTS-APPELLANTS' PROPERTY
called "theft of equity"
That the actions and litigation by Plaintiff-Respondent was born
of greed and the intention to create a foreclosure action whereupon
Plaintiff-Respondent, or agents working under the umbrella of Wells
Fargo would be in a good position to purchase Appellants property at
auction for a fraction of the value "theft of equity" which belonged
to Appellants, and that as proof of these intentions, Plaintiff-
Respondent, via their attorneys, prepared papers presented to the
Lower Court ordered that such auction "notice" be placed in a
unknown County paper that is not even registered with the New York
State, Sectrary of State, prima facie proof that Respondent, and or
their lawyers intended to make a killing of Appellants equity and
property value, hence "theft of equity", as all the papers and
affidavits prove.
THE SHIFT FROM THE PAID AND SATISFIED
MORTGAGE TO THE "CONSOLIDATED MORTGAGE"
Plaintiff-Respondent's entire cause of action now hinges upon
being able to distract this Court into believing that the underlying
foreclosure action WAS NOT on the original 1995 $162,000.00
mortgage, which the Indexed Record clearly shows was paid in full
and satisfied, but on a "consolidated mortgage" which they later
claimed was merely an "exhibit" and "not really a mortgage at all".
In fact, Respondent NEVER even paid a mortgage tax upon it.
The indexed record before this Court clearly shows that the
$162,000.00 1995 mortgage was paid in full and satisfied, and
therefore their entire foreclosure action was, and is legally
unsustainable, ab initio.
Respondent's new position is now critical to them because they
know fully well that their entire action cannot be maintained unless
they can confuse this Court into believing that they foreclosed upon
what they now claim to be that "consolidated mortgage".
THE RULES OF EVIDENCE
As with the rules of evidence during trial, when a party has
lied or substantially altered the truth, whenever there are
"opposing facts", only the facts from the party who has not falsely
testified are allowed to be accepted by a jury. Defendants assert
that this should be applied in this instant Appeal.
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