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]