Adam Friedman

We are pleased to share a recent decision of a case handled by Friedman Vartolo, LLP.  in SRMOF II 2012-1 Trust, US Bank Trust National Association, not in its individual capacity but solely as trustee v Tina Concepcion,  et al  135261/2015, Supreme Court Ct. 5/10/19, Hon. Desmond A. Green of Richmond County, New York denied the defendant’s the motion to renew, re-argue, and vacate the prior decision of thee Court granting the Motion for summary judgment to the Plaintiff after reviewing several important arguments made by the firm.

During oral argument, Defendant argued that because the chain of assignments and indorsements flow from JP Morgan Chase Plaintiff cannot have standing in this action based upon the judicial determination in the prior action that Plaintiff did not own the debt.  Defendant then argued that, in any event, this decision precluded us from seeking to foreclose again as a determination had already been made on the merit of Plaintiff’s “chain of ownership.”

Attorney O’Brien informed the Court that Defendant had misstated the nature of the Order from the prior action.  The order dismissing the prior action merely stated that Plaintiff had failed to provide sufficient evidence to prove its standing.  This is a distinction with a difference as the Court did not, as Defendant was arguing, make an affirmative finding that Plaintiff in the prior action did not own the note.  Thus Defendant’s argument that the chain of assignments was fatally flawed was not supported by the order from the prior action.

Attorney O’Brien then argued that pursuant to the UCC all that is required to evidence standing is possession of the note at commencement of the action.  Even if there is a flaw in the assignment or allonge history, possession by the current Plaintiff with an appropriate allonge is sufficient to prove standing.  Attorney O’Brien noted that Plaintiff in this action had provided a properly indorsed note as part of its summons and complaint and that such production is sufficient to prove standing under the current law, as this Court had already found when it granted Plaintiff’s Motion for Summary Judgment.

Finally, Attorney O’Brien argued that because the decision in the prior action was a dismissal for failure to evidence standing it lacked claim preclusive effect on the current action and Defendant’s attempts to evoke collateral estoppel and/or res judicata are inappropriate.  Attorney O’Brien suggested that no less an authority than the Court of Appeals had found that a finding of lack of standing lacks preclusive effect and Defendant’s attempts to argue otherwise go against all settled law on the subject.

The Court held defendant failed to present argument/evidence and failed to present evidence that the Court erred on the facts or law in deciding the previous application.

Further, the Court held that the motion was not timely as it was brought 64 days after Notice of entry of the decision was served. 

A great job by attorneys Richard O’Brien and Chad Harlan of our firm! For more information regarding this case, please contact   Deborah Gallo, Director of Operations at [email protected]

We are pleased to share a recent decision of a case handled by Friedman Vartolo, LLP.  In Goldman Sachs Mortgage Company, Respondent, v. John F. Mares, Appellant, No. 526161 (NY App Div. Nov  1, 2018), the Appellate Division affirmed the Supreme Court’s determination to grant the motion for summary judgment and struck defendant’s answer, counterclaim and affirmative defenses.

The Appellate Court found that the Supreme Court did not err in admitting into evidence the certificate of merit as required by CPLR 3012b (a) with attachments of mortgage, assignment and note with allonges. 

Under the business records exception to the hearsay rule, the sole witness at trial was able to testify from review of the business records of the servicer (without having personal knowledge of the creation of the account records), as well as, to the incorporation the prior servicer records into the current servicer.  Finally, the Court found that the signatures on the on the note endorsements were statutorily presumed to be genuine and authorized, where the appellant speculated as to their authorization to execute the allonges, and produced no evidence to support that they did not have authorization to do so.

A great job by Henry DiStefano of our firm! For more information regarding this case, please contact: Deborah Gallo, Director of Operation at dgallo@friedmanvartolo.com

On April 29, 2019, the New Jersey Legislature passed Assembly Bill No. 664. The bill creates a new requirement under the Fair Foreclosure Act for Notices of Intentions to Accelerate and Foreclose to include a provision advising debtors of the option to participate in the Foreclosure Mediation Program by submission of a request to the court upon the filing of a mortgage foreclosure complaint. Additionally, the new law requires that the written notices be served with the Summons and Complaint, in English and Spanish advising the debtors of the option to participate in the Foreclosure Mediation Program. The written notices are in addition to the existing mediation paperwork served upon the debtors. 

Additionally, the statute of limitations is revised for certain residential mortgage foreclosure actions from 20 years to 6 years from the date on which the debtor defaulted, and in situations in which the date of default is used as the method to determine when the statute of limitations has expired.

The bill also requires a receivership appointment application before certain foreclosure actions, requires a notice of intention to foreclose on a residential mortgage to be filed within 180 days before commencing foreclosure, and limits reinstatements of dismissed mortgage foreclosure actions.  Finally, the bill increases the filing fee of mortgage foreclosures to help fund the Foreclosure Mediation Program.

For more information on the recent changes please contact – Deborah Gallo, Director of Operations, at [email protected] or Catherine Aponte, Senior Associate, at [email protected]

We are pleased to share a recent decision of a case handled by Friedman Vartolo, LLP.  Hon. Timothy J. Dufficy of Queens County, New York granted the motion for summary judgment after reviewing several arguments made by the firm. SRMOF II 2012-1 Trust US Bank Trust Nat. Ass’n v. Rivera,  Index 703558/2017, Queen County (5/11/18)

The Court chose to extend the time imposed by statute for good cause and compelled that the reply to counterclaims be accepted by defendant. The delay was minimal, and reply was served once the case was released from the settlement conference part.

Plaintiff successfully argued that the loan was immune from any statute of limitations because the loan being foreclosed was a Federal Housing Administration Loan and the plaintiff was as assignee of a federal agency.  Further, the requirements of RPAPL 1303, 1303 and 1306 were met.  The affidavit sufficiently laid the foundation, the USPS Certified Mailing Tracking Number provided the compliance with mailing requirement, and affidavit of service reflected the complaint with RPAPL 1303. 

Another great job by our team! For more information regarding this case, please contact: Deborah Gallo, Director of Operations at dgallo@friedmanvartolo.com

We are pleased to share a recent decision of a case handled by Friedman Vartolo, LLP.  In BAC Home Loan Servicing, L.P., respondent  v. Semyon Chertov.  Appellant, No. 2016-03824, (NY App. Div.  Oct. 31, 2018), the Appellate Division affirmed the Supreme Court’s determination to grant Summary Judgment, and to direct the sale of the premises.  https://iapps.courts.state.ny.us/search/wicket/page?2-IResourceListener-pnlResultContainer-pnlResult-3-lnkDocument

The Court found that the Appellant had waived any challenges to standing by failing to raise it in either the Answer or in a pre-answer motion to dismiss. Thus, BAC was relieved of any obligation to prove standing.  In any event, the respondent met is burden by demonstrating ownership of the note and mortgage.

Compliance with RPAPL 1304 was sufficiently demonstrated with the submission of the respondent affidavit.  The affidavit sufficiently laid the foundation, the USPS Certified Mailing Tracking Number provided the compliance with mailing requirement and the inclusion of housing counseling agencies served “the region where he resided”.

A great job by Chad Harlan, Esq. and Oran Schwager, Esq. of our firm! For more information regarding this case, please contact: Deborah Gallo, Director of Operations at dgallo@friedmanvartolo.com.