DEFENDANTS-APPELLANTS REPLY CHALLENGE TO
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RESPONDENT'S COUNTER STATEMENT OF FACTS
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Respondent's Opposition Brief, now for the first time is
claiming that the foreclosure action is upon the consolidated
mortgage, which Plaintiff tried to shield from the Lower Court, and
stated in their Brief:
"Here, Wells Fargo presented the supreme court with
a complete copy of the consolidated note for $522,200.00
executed by th the Websters (R. at A-191 - A-193). ...
Wells Fargo also presented the supreme court with the
accompanying consolidated mortgage executed by the
Websters. (R. at A-194 - A-214)."
(Plaintiff-Respondent's Brief, page 10 par 2)
Plaintiff-Respondent and their attorneys, as the documents in
the indexed record clearly show, filed the initial foreclosure
action on the original 1995 $162,000.00 Mortgage, as is shown on the
Notice of Pendency (A-43) which states only the 1995 $162,000.00
mortgage, and on the complaint (A-33) which also states the 1995
$1262,000.00. These documents were put into evidence by
Plaintiff-Respondent in their initial Motion for Summary Judgement
(A-87) and included in their Motion for Judgement of Foreclosure and
Sale (A-324).
Again, as the documents and Defendants-Appellants' have
repeatedly shown the Lower Court, that the underlying $162,000.00
had been PAID and SATISFIED, but Respondent has come forth to now
insist that it was foreclosing on the consolidated mortgage, which
was filed by them with the County Clerk as an exhibit only to the
consolidated note, and for which they did not pay a mortgage tax.
(See attached letter from their closing attorney at the end of this
Brief, and as covered in POINT II.
This new position is critical to Plaintiff in order to save its
foreclosure which has been bungled by them, ab initio. 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, and not on the
consolidated mortgage.
This attempt is crucial to this instant Appeal since their
entire action hinges on their ability to try to convince this Court
that they followed proper procedure all along, and is the linch pin
for their action, as they know they cannot maintain an action on a
paid and, in their documentation satisfied mortgage, especially one
that they did not have in their possession at the time when they
filed their foreclosure action, a well settled legal requirement.
Also, Plaintiff-Respondent never made any sworn statement in any
of their moving or answering papers before the Lower Court, that
they ever had in their possession any of the referenced mortgages
they claim, a critical necessity as it has become common knowledge
recently that many of the lenders bundled many of their mortgages
and sold them on the mortgage market, a practice which has led to
the current financial mortgage fiasco.
Plaintiff-Respondent makes the following misleading and
totally false statement:
"This action arises out of the Webster's breach of a
consolidated note and mortgage that they executed
on May 16, 2005 (the "consolidated loan"). R. at A-191
- A-192; A- 194 - A-214"
(Respondent's Preliminary Statement page 1 paragraph 2)
Plaintiff's above statement is false, as Plaintiff has never
brought before the Lower Court any competent evidence of a legal
consolidated mortgage. Defendants put forth in their Cross Motion
(R. A-154 - 230) what they believed was the only surviving mortgage
in opposition to Plaintiff's continuing position before the Lower
Court that they were litigating on the paid and satisfied 1995
$162,000.00 mortgage. In the Complaint it states:
"SECOND: On or about the 24th day of August, 1995,
JEAN ALLEN WEBSTER and SCOTT E. WEBSTER duly executed
and delivered to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,
INC. AS NOMINEE FOR WELLS FARGO HOME MORTGAGE, INC. a
note.... the sum of $162,000.00 ..." (A-34)
This is not true as Defendants executed a mortgage with First
Union, who apparently sold the mortgage to MERS. Plaintiff after
filing the foreclosure Complaint, had to later purchase the Mortgage
from MERS. This is also proof, that Plaintiff did not have
possession the 1995 Mortgage and therefore could not legally
consolidate a mortgage it did not own. This is also prima facie
proof that Plaintiff has not shown a proper chain of custody of
assignments. Therefore this is a major flaw in the Complaint as the
statement if totally false.
"THIRD: That as security for the payment of said note
SCOTT E. WEBSTER and JEAN ALLEN WEBSTER duly executed and
delivered to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,
INC. AS NOMINEE FOR WELLS FARGO HOME MORTGAGE, INC. a
mortgage in the amount of $162,000.00 ..." (A-34)
Again Plaintiff clearly states that the mortgage being forclosed
is the $162,000.00 1995 Mortgage, and not a consolidated one, as
stated on the Complaint:
"Said mortgage is to be assigned by Assignment to be
recorded in the Office of the Clerk of PUTNAM County.
(A-34).
Still more proof that Plaintiff did not have in its possession
the Mortgage being foreclosed. The Complaint states:
"The Plaintiff by its attorneys, Steven J. Baum, P.C.,
for its complaint against the Defendant(s) alleges upon
information and belief as follows:" (A-34)
It is well settled that an attorney's affirmation or affidavit
based upon information and belief has no probative value, and in
this case it is the verified Complaint.
Plaintiff-Respondent's Preliminary Statement page 1 paragraph 2
states the following:
"The Websters served an answer with counterclaims...
...Thereafter, Wells Fargo moved for summary judgement,
outlining for the supreme court the existence of the
consolidated note ... In their cross-motion, the Websters
argued, among other things, that Wells Fargo was foreclosing
on a note and mortgage that was paid and satisfied..."
"The documents before this Court, and before the supreme
court, clearly indicate that Wells Fargo is foreclosing
on the consolidated loan..."
The above statement is clearly a play on words, as it is only a
mortgage which acts as the security that can be foreclosed.
Plaintiff-Respondent's Preliminary Statement page 2 paragraph 2
states the following:
"Due to their continued confusion in reading the motion
papers pending before the Court, the Websters' opposition
papers to the supreme were muddled and inaccurate. As
a result, Judge O'Rourke's order dated April 27, 2007,
contained a minor clerical error. R. at A-25 - A-29.
Wells Fargo's counsel noticed the error in August of
2007, and sent a letter to Judge O'Rourke and the Websters
bringing the error to the attention of the supreme court
and, as is standard procedure, attaching an amended
decision and order resolving the clerical error.
(R. at A-308 - A-311). Thereafter, the Websters sent a
letter to the Judge vehemently opposing the correction
of the error in the original order (R. at A-346 - A-365)."
"Judge O'Rourke signed the amended decision and order on
August 27, 2007. (R. at A-19 - A-22). That order granted
the EXACT SAME RELIEF as the previous order.
(Respondent's Preliminary Statement page 3 paragraph 3)
The above statement is absolutely untrue, as there is
$150,000.00 that was shifted against Defendants-Appellants, findings
of facts that were deleted from the Amended Decision and Order, and
the granting of relief to Plaintiff which clearly constitutes that
their request was a motion. If, as Plaintiff-Respondent claims, the
orders were exactly for the same relief then Plaintiff would not
have had to bother the Lower Court to amend the original Order,
which was created and written solely by Plaintiff. And Judge
O'Rourke never made a sua sponte motion to correct Plaintiff's claim
of a minor error.
Plaintiff has attempted to hide its actions, and those of the
Lower Court behind CPLR 5019 (a), which in its self is a "motion"
which in this case required a CPLR 2221 motion.
Plaintiff boldly puts forth in Respondent's Counter Statement of
facts page 6 last paragraph, the following false statement:
"Thus at the end of the day on May 16, 2005, Wells Fargo
was the holder of a consolidated note and mortgage
executed by the Websters in the amount of $522,200.00."
In this statement, Plaintiff now claims a consolidated mortgage,
however this flies in the face of logic and reason, because this
would require them to file satisfactions of mortgages for both the
original 1995 $162,000.00 and the 2005 gap mortgage for $380,346.31,
and to pay tax upon the remaining consolidated mortgage which they
did not.
Also, it clearly states that Wells Fargo "was the holder of a
consolidated note and mortgage" but does not assert that it still
had possession at the time of the filing of their Complaint. As it
is common knowledge that these notes have in recent been bundeled
and sold on the market as securities, Plaintiff may have sold the
consolidated mortgage sometime before filing the Complaint. The
consolidated mortgage was signed by Defendants as a contract of
adhesion, and witnessed by the title agent. This would explain why
it was not filed as a mortgage with the County Clerk, which
necessated Plaintiff to file their action upon the original paid in
full 1995 mortgage.
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