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Exhibit EE
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Hearing Date and Time: June 7, 2021 at 2:00 p.m. (Eastern Time)
Objection Deadline: June 1, 2021 at 5:00 p.m. (Eastern Time)
Anne Rosenbach, Esq.
ANNE ROSENBACH, ESQ., PLLC
3 Delta Road
Massapequa, New York 11758
Tel.: (516) 795-7808
Attorney for Gisele Bouillette Allard, Debtor
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
In re Chapter 7
GISELE BOUILLETTE ALLARD,
Debtor. Case No. 18-14092 (MG)
DEBTOR’S OBJECTION TO THE TRUSTEE’S MOTION PURSUANT TO 11 U.S.C.
§ 105(a) AND FEDERAL RULE OF BANKRUPTCY PROCEDURE 9019(a) FOR
AN ORDER APPROVING STIPULATION RESOLVING TREATMENT OF CLAIM
OF 50 EAST 126TH STREET REALTY, LLC, AND GRANTING RELATED RELIEF
TO THE HONORABLE MARTIN GLENN,
UNITED STATES BANKRUPTCY JUDGE:
The Debtor GISELE BOUILLETTE ALLARD, by and through her undersigned attorney,
Anne Rosenbach, Esq., of Anne Rosenbach, Esq., PLLC, hereby respectfully submits the
following, objecting to the Trustee’s Motion pursuant to 11 U.S.C. § 105(a) and Federal Rule of
Bankruptcy Procedure 9019(a) seeking an order approving stipulation resolving treatment of
Claim Number 3 of 50 EAST 126TH STREET REALTY, LLC, should not be approved and
rubber stamped by the Court based on the fact that the Claim Number 3 (ECF CLAIMS
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REGISTER: CLAIM 3-1 & CLAIM 3-1 PART 2) based on a purported Judgment in the amount
of $5,255,638.91 (Five Million Two Hundred Fifty Five Thousand Six Hundred Thirty Eight
Dollars and Cents 91/100), entered on September 28, 2019, in a State Court foreclosure action
entitled Davis v. Allard, et al., in the Supreme Court of the State of New York, County of New York,
bearing Index Number 109284/2005, is erroneous.
PRELIMINARY STATEMENT
1. As will be demonstrated below the Motion of the Trustee is devoid of any merit
based on the fact that the Proof of Claim No. 3 filed by the Creditor 50 EAST 126TH STREET
REALTY LLC in the amount of $7,120,547.68 (ECF CLAIMS REGISTER: CLAIM 3-1 &
CLAIM 3-1 PART 2), is based on an erroneous judgment.
2. Additionally, contrary to the Trustee’s statement in ¶ 1 of his Motion, that “1.
The Stipulation fully resolves the treatment of 126 Realty’s claim in the manner that will
directly benefit creditors and Debtor.”, in fact, this Stipulation will allow the Creditor 50
EAST 126TH STREET REALTY LLC in reaping and stealing $3,500,000.00 on a fatal
Judgment of Foreclosure and Sale dated September 4, 2018, entered on September 28, 2018, for
“the sum of $5,255,38.91 [Five Hundred Twenty Five Thousand Five Hundred Thirty Eight and
Cents 91/100], together with interest thereon from July 1, 2017 until entry of judgment as
provided in the loan documents”. (ECF Doc. No. 118-10).
3. It is respectfully submitted that the four corners of the Judgment of Foreclosure
and Sale evidences that the Judgment of Foreclosure and Sale is for only in “the sum of
$5,255,38.91 [Five Hundred Twenty-Five Thousand Five Hundred Thirty-Eight and Cents
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91/100], together with interest thereon from July 1, 2017 until entry of judgment as provided in
the loan documents”. (ECF Doc. No. 118-10). However, in its fabricated claim the Creditor 50
EAST 126TH STREET REALTY LLC, erroneously claims the amount of $7,120,547.68 based
on a purported Judgment in the amount of $ $5,255,638.91. (ECF CLAIMS REGISTER:
CLAIM 3-1 & CLAIM 3-1 PART 2).
4. In fact, the Creditor 50 EAST 126TH STREE REALTY LLC’s Proof of Claim
No.3 is factually untrue.
5. The Debtor’s present attorney investigated the matter and discovered that
GISELE BOUILLETTE ALLARD is being taken advantage of her situation by the Creditor, 50
EAST 126TH STREET REALTY LLC, and its predecessor-in-interest, JOCELYN CADE DAVIS,
AS EXECUTRIX OF THE ESTATE OF ROBERT ROBINSON, and their agents. In fact,
based on this erroneous Claim the Debtor’s GISELE ALLARD two valuable properties and a
lucrative net lease investment were sold by the chapter 7 Trustee based on this erroneous claim
filed by the creditor 50 EAST 126TH STREET REALTY LLC against GISELE BOUILLETTE
ALLARD’s bankruptcy estate in the sum of $7,120,547.68, purportedly representing a Judgement,
dated September 28, 2018, in the sum of $5,255,638.91 together with interest thereon from July
1, 2017 per the referee's amortization schedule applying 25% interest as of 9/28/2018 and post
judgment interest at 9% from 9/28/2018 to 12/18/2018, total Amount Due As of the Date of
Filing of Bankruptcy Petition 12/19/2018- $7,113,819.68. (ECF CLAIMS REGISTER: CLAIM
3-1 & CLAIM 3-1 PART 2).
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6. Further, the Debtor’s former attorneys both in State Court and the Bankruptcy
Court, mistakenly believed the Judgment of Foreclosure and Sale, dated September 4, 2018,
entered on September 28, 2018 is for the sum of $5, 255,638.91 (Five Million Two Hundred
Fifty Five Thousand Six Hundred Thirty Eight Dollars and Cents 91/100, when in fact the
Judgment of Foreclosure and Sale dated September 4, 2018, entered on September 28, 2018, is
for “the sum of $5,255,38.91 [Five Hundred Twenty Five Thousand Five Hundred Thirty Eight
and Cents 91/100], together with interest thereon from July 1, 2017 until entry of judgment as
provided in the loan documents”. (See page 2 of the Judgment of Foreclosure and Sale ECF
Doc. Number: 18-10).
7. That the Debtor served and filed Objection to Claim Number 3. (ECF Doc
Number 172), dated May 18, 2021, noticed for a hearing on June 29, 2021 before this Court, a
copy of which together with the Affidavit of Debtor and Exhibits attached thereto are annexed
hereto and made a part hereof and the Court is respectfully submitted that in conjunction with
this Debtor’s Objection to the Trustee’s Motion, said Objection be considered by the Court as
Supplemental Objection to the Trustee’s Motion to Compromise Claim with Creditor 50 EAST
126TH STREET REALTY LLC, herein.
FACTUAL BACKGROUND
8. For the factual background the Court is respectfully referred to the Affidavit
of GISELE BOUILLETTE ALLARD, Debtor in support of the Objection (ECF Doc. Number:
172), and Exhibits and Court Documents attached hereto and referred to in the Objection.
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STIPULATION RESOLVING TREATMENT OF
CLAIM OF CREDITOR 50 EAST 126TH STREET REALTY, LLC
SHOULD NOT BE APPROVED AND RUBBER STAMPED
BY THE COURT UNTIL A DETERMINATION IS MADE BY THE
COURT ON OBJECTION OF THE DEBTOR NOTICED FOR 6/29/2021
9. It is respectfully submitted that the Bankruptcy Court whose aid the Creditor
EAST 126TH STREET REAKLTY LLC seeks for enforcement of an asserted claim is not bound
to treat the tendered proof as conclusive. When objections are made (ECF Doc. Number 172),
the Bankruptcy Court is duty bound to pass on them. That process is, indeed, of basic importance
in the administration of a bankruptcy estate whether the objective be liquidation or
reorganization. Without that sifting process, unmeritorious or excessive claims might dilute the
participation of the legitimate claimants. § 502(b) imposes a duty on the bankruptcy court to
determine the allowed amount of a claim once an objection has been filed. See Gardner v.
New Jersey, 329 U.S. 565, 581-82, 67 S. Ct. 467, 91 L.Ed. 504 (1947) (“When objections are
made, [the court] is duty bound to pass on them.”).
10. In the case at bar, upon discovering filing of an erroneous claim by the Creditor
50 EAST 126T STREE REALTY LLC, based on a purported judgment of $5,255,638.91 by the
Debtor’s present attorney, the Debtor served and filed Objection to Claim Number 3. (ECF Doc.
Number 172), dated May 18, 2021, a copy of which together with the Affidavit of Debtor and
Exhibits attached thereto are attached hereto and made a part hereof.
11. It is astounding and there is no valid reason as to why the Debtor’s debt based
on a “$5,255,38.91” [Five Hundred Twenty-Five Thousand Five Hundred Thirty-Eight
Dollars and Cents 91/100], Judgment of Foreclosure and Sale, entered on September 28, 2018,
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in a State Court foreclosure action, the Creditor’s 50 EAST 126TH STREET REALTY LLC’s
Claim is now changed to a Judgment in the tune of $5,255,638.91 (Five Million Two Hundred
Fifty-Five Thousand Six Hundred Thirty-Eight and Cents 91/100).
12. It is further respectfully submitted that in the State Court foreclosure action,
this Creditor’s assignor, predecessor-in-interest, JOCELYN CADE DAVIS, AS EXECUTRIX OF
THE ESTATE OF ROBERT ROBINSON so called “ministerial change”, requested in their
motion, for “An Order modifying the Referee’s Report; Confirming the Referee’s Report as
modified; and Awarding the Plaintiff a Judgment of Foreclosure and Sale”, in turn resulted in the
fatal Hon. Judith N. McMahon order confirming a Judgment of “$5,255,38.91”, miraculously
and without any explanation, the amount owed by the Debtor GISELE BOUILLETTE ALLARD
jumped from $329,272.62 confirmed by Referee Davis’ Report (ECF Doc. No. 18-4) to
“$5,255,38.91” in the Judgment of Foreclosure and Sale (ECF Doc. No. 18-5).
13. It is further respectfully submitted that in the State Court foreclosure action fatal
Judgment of “$5,255,38.91” [Five Hundred Twenty Five Thousand Five Hundred Thirty
Eight Dollars and Cents 91/100], miraculously and without any explanation, jumped from
“$5,255,38.91” [Five Hundred Twenty Five Thousand Five Hundred Thirty Eight Dollars
and Cents 91/100] (ECF Doc. No. 18-5) into the Creditor/Mortgagee’s Proof of Claim to an
exuberant and astonishing Judgment in the sum of $5,255,638.91 together with interest thereon
from July 1, 2017 until entry of judgment together with “Per the referee's amortization schedule
applying 25% interest, the Claimant is entitled to…Total amount: $7,120,547.68.” (ECF
CLAIMS REGISTER: CLAIM 3-1 & CLAIM 3-1 PART 2).
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14. Clearly, based on the all of the foregoing reasons, the Creditor’s Claim (ECF
CLAIMS REGISTER: CLAIM 3-1 & CLAIM 3-1 PART 2) is erroneous, and therefore pursuant
to sections 105 and 502 of the Bankruptcy Code and Bankruptcy Rule 3007, the Debtor has filed
Objection noticed for June 29, 2021, seeking an order disallowing and expunging Claim 3, and
for such other and further relief as this Court may deem just proper under the circumstances of
this case and to achieve substantive fairness in this case.
15. Therefore, it is respectfully submitted that at this juncture the Trustee’s that
branch of the Motion pursuant to 11 U.S.C. § 105(a) and Federal Rule of Bankruptcy Procedure
9019(a) seeking an order approving stipulation resolving treatment of the Creditor 50 EAST
126TH STREET REALTY LLC’s erroneous Claim Number 3 should not be approved and
rubber stamped by the Court.
16. Further, a careful review of the ASSIGNMENT OF JUDGMENT, dated
January 16, 2019, made by JOCELYN CADE DAVIS, AS EXECUTRIX OF THE ESTATE OF
ROBERT ROBINSON, as Assignor, and 50 EAST 126TH STREET REALTY LLC, as Assignee
(ECF Doc. No. 18-10), reveals that the Assignor “assigns unto Assignee, without recourse to Assignor
in any event, that certain Judgment of Foreclosure and Sale dated September 28, 2018, entered in the
action known as Davis v. Allard, et al., in the Supreme Court of the State of New York, County of
New York, bearing Index Number 109284/2005 of that Court (the “Supreme Court Action”), which
Judgment of Foreclosure and Sale ordering, adjudging and decreeing, among other things, that the
Assignor was due the sum of $5,255,638.91 plus interest, advances, costs, disbursements, allowances
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and legal fees as described therein (the “Foreclosure Judgment”), a true copy of which is annexed
hereto as Exhibit “A”.” (ECF Doc. # 18-10).
17. It is respectfully submitted that the amount of Judgment awarded in the Foreclosure
Action as opposed to $5,255,638.91 [Five Million Two Hundred Fifty Five Thousand Six Hundred
Thirty Eight Dollars and Cents 91/100] stated in the Assignment of Judgment is “$5,255,38.91”
[Five Hundred Twenty Five Thousand Five Hundred Thirty Eight Dollars and Cents
91/100], together with interest thereon from July 1, 2017, while the amount of Judgment of
Foreclosure and Sale stated in Assignment of Judgment of Foreclosure and Sale is $5,255,638.91”
(ECF Doc. No.18-10), and therefore, the Assignment of Judgment to this Creditor is incorrect and
defective on its face and of no force and effect and gives this Creditor no standing.
18. It is further respectfully submitted that the purported amount of the Judgment of
Foreclosure and Sale stated in the Judgment of Foreclosure and Sale (ECF Doc. No. 18-10) and in the
Creditor’s Motion to Vacate Stay (ECF Doc. No. 18) and Declaration of Abraham N. Kleinman, Esq.
(ECF Doc. No. 18-1) and the Assignment of Judgment of Foreclosure and Sale (ECF Doc. No. 18-10)
and the Notice of Sale attached hereto as Exhibit “A”) are all contradictory.
19. In fact, the amount awarded in Judgment of Foreclosure and Sale and stated in Motion
to Vacate Stay and Kleinman’s Declaration is $5,255,38.91 [Five Hundred Twenty Five
Thousand Five Hundred Thirty Eight Dollars and Cents 91/100], together with interest
thereon from July 1, 2017, while the amount of Judgment of Foreclosure and Sale stated in Notice
of Sale (Exhibit “A”) attached hereto) and Assignment of Judgment of Foreclosure and Sale (ECF
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Doc. No. 18-10) and Proof of Claim (ECF Claims Register Claim No.3), purportedly claiming
amount of Judgment $5,255,638.91 [Five Million Two Hundred Fifty Five Thousand Six
Hundred Thirty Eight Dollars and Cents 91/100], are all contradictory.
20. In addition, the Assignment of Judgment of Foreclosure and Sale (ECF Doc. No. 18-
10) alleges an incorrect date of the Judgment of Foreclosure and Sale.
21. Based upon the foregoing, the Creditor 50 EAST 126TH STREET REALTY
LLC, mislead this Court in order to take advantage and commit wrongs on the Debtor and
the Court, and on March 19, 2019, secured an Order vacating the automatic stay for allowing the
enforcement of its rights in, and remedies in and to, the Debtor’s Property known and located at 50 East
126th Street, New York, New York, and for completion of the pending foreclosure proceeding in the
Supreme Court of the State of New York, County of New York. (ECF Doc. No. 22).
22. The Debtor’s Bankruptcy Claim Register maintained by this Court shows that after the
issuance of the Lift Stay Order, on April 18, 2019, the creditor 50 EAST 126TH STREET REALTY
LLC, filed an erroneous Claim (ECF CLAIMS REGISTER: CLAIM 3-1 & CLAIM 3-1 PART 2)
against the Debtor’s bankruptcy estate in the sum of $7,120,547.68, representing $5.255,638.91
Judgement, dated September 28, 2018, with interest thereon from July 1, 2017 until entry of
judgment together, and as “Per the referee's amortization schedule applying 25% interest…Total
amount: $7,120,547.68.” (ECF Claims Register Claim No.3).
23. As is evidenced by the Notice of Sale dated July 10, 2019 (Exhibit “A” attached hereto
the Debtor’s Objection), a foreclosure public auction of the subject property was scheduled for August 7,
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2019, by the Creditor 50 EAST 126TH STREET REALTY LLC, pursuant to the Judgment of
Foreclosure and Sale, dated September 4, 2018, by and through TRACEE E. DAVIS, Referee,
and Umer Sheikh, Esq., and Offit Kurman, Esq., attorneys for Plaintiffs, in Room 130,of the
New York County Supreme Court, 60 Centre Street, New York, New York. The Notice of Sale
provides for that “Approximate amount of Judgment lien is $5,255,638.91, plus interest from
July 1, 2017 plus other amounts specified in the Judgment of Foreclosure and Sale.” (See
Exhibit “A” attached hereto the Debtor’s Objection).
24. As can be seen from the Declaration of Albana Petrakov, Esq., dated August 28,
2019 (ECF Doc. No. 72-1), submitted by the Creditor 50 EAST 126TH STREET LLC’s attorney
to this Court in Opposition to the Debtor’s Motion to Reclassify Debt, in regard to the August 7,
2019 public auction of the subject mortgaged property, “Tracee Davis, the special referee
appointed to conduct the sale advised that she would not be able to proceed on the scheduled
date.” (See ¶ 7 of Declaration of Albana Petrakov, dated August 28, 2019 ECF Doc. 72-1).
As can be further seen from the ¶ 26 of the Affirmation of Umer Sheikh, Esq., affirmed to
the 20th day of August 20, 2019 (ECF Doc. Number 172), Creditor’s attorney submitted to
the State Court in Opposition to the Debtor’s Order to Show Cause for stay of August 21,
2019 foreclosure auction “but based upon the Referee being unavailable at the last minute,
the Plaintiff adjourned the sale to August 21, 2019.”
25. The Creditor, “8. 126th Street Realty re-noticed the sale again, this time for
August 21, 2019.” (ECF Doc. No. 72-1, ¶ 8 of Declaration of Albana Petrakov, dated
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August 28, 2019).
26. That a Foreclosure Action Surplus Money Form, dated 8/21/2019, made by the
Referee, Tracee E. Davis, shows that at the adjourned Foreclosure Auction held on August 21,
2019, the Creditor 50 EAST 126TH STREET REALTY LLC was the purchaser of the subject
property and that:
“Amount of final judgment of foreclosure $ 5,255,631.98
Sale price of property $ 1,220,000.00
Upset price $ 100,000.00
Surplus money $____N/A____”
(ECF Doc. No. 70-1).
27. It is respectfully submitted that the Debtor has made a Motion returnable on June
10, 2021 in the State Court foreclosure action seeking an order to vacate and set aside the public
foreclosure auction of the Debtor’s house upon the grounds that the Public Foreclosure Auction
Sale of the mortgaged property known and located at 50 East 126th Street, New York, New
York, to the plaintiff 50 EAST 126TH STREET REALTY LLC, as successful bidder, for the
sum of One Million Two Hundred Twenty Thousand ($1,220,000.00) Dollar, conducted in the
foreclosure action on August 21, 2019, was based on non-publication of the Notice of Adjourned
Sale, required to be published in the New York Law Journal pursuant to N.Y. Real Property
Actions Law §231(3) which requires:
“3. Notice of postponement of the sale shall be posted at least three days prior to
the postponed date in the same places as the original notice of sale when posting
of the notice of sale is required, and shall be published once at least three days
prior to the postponed date in the newspaper in which the notice of sale was
originally published.”
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28. In addition, the Debtor has also alleged in her Motion to the State Court to vacate
and set aside the Judgment of Foreclosure and Sale, upon the grounds of erroneous conduct of
the Creditor and Tracee E. Davis, Esq., Referee to Sell under the Judgment of Foreclosure and
Sale.
29. A copy of the Debtor’s Notice of Motion together with the supporting Affirmation
and Affidavit was also served on the chapter 7 Trustee and his attorneys.
30. It is respectfully submitted that to date the Referee’s Report of Sale required to be
filed with the State Court within 30 days of the sale under New York RPAPL §1371 having not
been filed. Furthermore, to date no deficiency judgment having been entered against the Debtor.
Further, to date no motion for leave to enter a deficiency judgment against the Debtor having
been made by this Creditor in the State Court.
31. It is respectfully submitted that based on numerous defects in the public
foreclosure auction of the Debtor’s property to the Creditor 50 EAST 126TH STREET REALTY
LLC, the foreclosure auction conducted on 8/21/2019 is expected to be vacated and set aside by
the State Court based on numerous defects including but not limited to the violation of N.Y. Real
Property Actions Law §231(3); N.Y. RPAPL 1351(1), which provides that “the mortgaged
premises….be sold by or under the direction of the…referee within ninety days of the date of the
judgment.”; disallowance, reduction and/or extinguishing the interest accrued during the time
that the Creditor took no action to prosecute this foreclosure; the Judgment of Foreclosure and
Sale is civilly usurious in violation of General Obligations Law §5-501 and Banking Law §14-
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a(1), and criminally usurious in violation of Penal Law §190.40, which penalizes a rate
exceeding 25%.
32. Further, the underlying Judgment of Foreclosure and Sale based on the Debtor’s
pending motion in the State Court foreclosure action, has to be vacated and resettled after the
appointment of new referee since in its Status Report dated March 24, 2021 (ECF Doc. No. 151),
the Creditor’s attorney reported to this Court “the referee has the Referee advised us that she had
not been paid her fee of approximately $17,000.00, which the Creditor handled directly with the
Referee and paid in November 2019.” (See page 2 of ECF Doc. No. 151).
33. It is at present unknown what work was performed by the Referee for this
Creditor for the sum of $17,000.00. Pursuant to New York C.P.L.R. 8003 [a]) “A referee is
entitled, for each day spent in the business of the reference, to fifty dollars unless a different
compensation is fixed by the court or by the consent in writing of all parties not in default for
failure to appear or plead”. See Pittoni v Boland, 278 AD2d 396, 397 [2d Dept 2000]; Neuman v
Syosset Hosp. Anesthesia Group, P.C., 112 AD2d 1029, 1030 [2d Dept 1985]).
34. It is respectfully submitted that the State Court is not going to award the Creditor
a deficiency judgment unless the referee’s report of sale is filed based on the foreclosure sale of
the subject property to the Creditor on 8/21/2019, based on a purported Judgment of Foreclosure
and Sale in the sum of $5,244,631.98, and if such a report is going to be filed, the Debtor is
going to challenge. In addition, the underlying fatal and defective judgment of foreclosure and
sale is expected to be vacated and a new judgment of foreclosure and sale has to be issued by the
State Court after resolving and curing all material defects stated herein and in the Debtor’s
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Motion returnable of June 10, 2021 in State Court, a copy of which was also served on the
chapter 7 Trustee and his attorneys.
35. Therefore, it is respectfully submitted that based on the all of the foregoing
reasons, and based on the Debtor’s Objection noticed for June 29, 2021 (ECF Doc. No. 172), this
Court is not going to allow the Creditor’s Claim (ECF CLAIMS REGISTER: CLAIM 3-1 &
CLAIM 3-1 PART 2), and an order is going to be made by this Court on Debtor’s Objection
pursuant to sections 105 and 502 of the Bankruptcy Code and Bankruptcy Rule 3007,
disallowing and expunging Claim 3 (ECF CLAIMS REGISTER: CLAIM 3-1 & CLAIM 3-1
PART 2).
36. Since the erroneousness of the Creditor 50 EAST 126TH STREET REALTY LLC’
claim is obvious, as it submitted and filed a prima facie erroneous and inaccurate proof of claim
in all respects.
CONCLUSION
WHEREFORE, the Debtor respectfully requests that the Court enter an order, denying
the Trustee’s that branch of the Motion seeking an order approving stipulation resolving
treatment of the Creditor 50 EAST 126TH STREET REALTY LLC’s fabricated and erroneous
Claim Number 3 should not be approved and rubber stamped by the Court, and granting such
other and further relief as the Court deems just and proper in the interest of justice and to achieve
substantive fairness in this case.
Dated: Massapequa, New York Anne Rosenbach, Esq. /s/
May 29, 2021 _________________________
ANNE ROSENBACH, ESQ.
Attorney for Debtor
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Case No.: 18-14092 (MG)
Chapter 7
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------------X
In re:
GISELE BOUILLETTE ALLARD,
Debtor.
----------------------------------------------------------------------X
NOTICE OF HEARING TO CONSIDER DETOR’S OBJECTION
TO PROOF OF CLAIM NUMBER 3 FILED BY
THE CREDITOR 50 EAST 126TH REALTY LLC
=====================================================================
ANNE ROSENBACH, ESQ., PLLC
Attorney for Debtor
GISELE BROUILLETTE ALLARD
3 Delta Road
Massapequa, NY 11758
Tel.: (516) 795-7808
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Hearing Date and Time: June 29, 2021 at 11:00 a.m. (Eastern Time)
Objection Deadline: June 21, 2021 at 4:00 p.m. (Eastern Time)
Anne Rosenbach, Esq.
ANNE ROSENBACH, ESQ., PLLC
3 Delta Road
Massapequa, New York 11758
Tel.: (516) 795-7808
E-Mail: RosenbachLawFirm@gmail.com
Attorney for Gisele Bouillette Allard, Debtor
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
In re Chapter 7
GISELE BOUILLETTE ALLARD,
Debtor. Case No. 18-14092 (MG)
NOTICE OF HEARING TO CONSIDER DETOR’S OBJECTION
TO PROOF OF CLAIM NUMBER 3 FILED BY
THE CREDITOR 50 EAST 126TH REALTY LLC
PLEASE TAKE NOTICE that a hearing will be held before the Honorable Martin Glenn,
United States Bankruptcy Judge, in his Courtroom at the United States Bankruptcy Court for the
Southern District of New York, (“the Court”), Alexander Hamilton U.S. Customhouse, One
Bowling Green, New York, New York 1004 on June 29, 2021 at 11:00 a.m. (prevailing Eastern
Time) (the “Hearing”) to consider the Debtor’s GISELE BOUILLETTE ALLARD Objection to
Proof of Claim Number 3 filed by 50 EAST 126TH STREET REALTY LLC (the “Objection”).
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PLEASE TAKE FURTHER NOTICE that responses or objections to the Objection must
be in writing, conform to the Bankruptcy Code, the Bankruptcy Rules and the Court’s Local
Rules, be electronically filed with the Bankruptcy Court in accordance with General Order No.
M-399, which, along with the User’s Manual for the Electronic Case Filing System, can be found
at the Court’s Website, and be served so as to be received by all of them not later than June 21,
2021 at 4:00 p.m. prevailing Eastern time by: (i) the Bankruptcy Judge (a hard copy clearly
marked “Chambers Copy” must be delivered to the Court to the attention of Chambers of The
Honorable Martin Glenn), (ii) undersigned counsel for the Debtor GISELE BOUILLETTE
ALLARD, and (iii) the Office of the United States Trustee for the Southern District of New
York, 201 Varick Street, Suite 1006, New York, New York 10014, Attn: Greg Zipes, Esq.
(Email: greg.zipes@usdoj.gov). Responses not timely served and filed may not be considered by
the Court.
PLEASE TAKE FURTHER NOTICE that pursuant to General Order M-543, available
on the Court’s website at www.nysb.uscourts.gov (the “Court’s Website”), the Court is not
holding in-person hearings at this time; the Hearing will be conducted telephonically. Parties
and counsel wishing to participate in the Case Management Conference telephonically must
register with Court Solutions no later than one day before the Case Management Conference.
Information on how to register with Court Solutions can be found in General Order M-543 and
on Court Solutions’ website at https://www.court-solutions.com.
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PLEASE TAKE FURTHER NOTICE that Objection and Debtor’ Affidavit in Support of
the Objection may be inspected on the Court’s Website (www.nysb.uscourts.gov), or by request
to undersigned counsel. A Pacer password is required to access documents on the Website.
PLEASE TAKE FURTHER NOTICE that the Hearing may be adjourned from time to
time without any further notice except for an announcement at the Hearing.
PLEASE TAKE FURTHER NOTICE that unless a written response to the Objection,
with proof of service, is filed with the Bankruptcy Court and a courtesy copy delivered to the
Honorable Martin Glenn’s chambers by the Objection Deadline, the Debtor may, on or after the
Objection Deadline, submit to the Bankruptcy Court an order substantially in the form of the
proposed order attached to the Objection, which order may be entered with no further notice or
opportunity to be heard.
Dated: Massapequa, New York
May 18, 2021
Anne Rosenbach, Esq. /s/
______________________________
ANNE ROSENBACH, ESQ.
ANNE ROSENBACH, ESQ., PLLC
Attorney for Debtor
GISELE BROUILLETTE ALLARD
3 Delta Road
Massapequa, NY 11758
Tel.: (516) 795-7808
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Hearing Date and Time: June 29, 2021 at 11:00 a.m. (Eastern Time)
Objection Deadline: June 21, 2021 at 4:00 p.m. (Eastern Time)
Preview
FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/29/2022 Exhibit EE FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 1 of 325 Hearing Date and Time: June 7, 2021 at 2:00 p.m. (Eastern Time) Objection Deadline: June 1, 2021 at 5:00 p.m. (Eastern Time) Anne Rosenbach, Esq. ANNE ROSENBACH, ESQ., PLLC 3 Delta Road Massapequa, New York 11758 Tel.: (516) 795-7808 Attorney for Gisele Bouillette Allard, Debtor UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re Chapter 7 GISELE BOUILLETTE ALLARD, Debtor. Case No. 18-14092 (MG) DEBTOR’S OBJECTION TO THE TRUSTEE’S MOTION PURSUANT TO 11 U.S.C. § 105(a) AND FEDERAL RULE OF BANKRUPTCY PROCEDURE 9019(a) FOR AN ORDER APPROVING STIPULATION RESOLVING TREATMENT OF CLAIM OF 50 EAST 126TH STREET REALTY, LLC, AND GRANTING RELATED RELIEF TO THE HONORABLE MARTIN GLENN, UNITED STATES BANKRUPTCY JUDGE: The Debtor GISELE BOUILLETTE ALLARD, by and through her undersigned attorney, Anne Rosenbach, Esq., of Anne Rosenbach, Esq., PLLC, hereby respectfully submits the following, objecting to the Trustee’s Motion pursuant to 11 U.S.C. § 105(a) and Federal Rule of Bankruptcy Procedure 9019(a) seeking an order approving stipulation resolving treatment of Claim Number 3 of 50 EAST 126TH STREET REALTY, LLC, should not be approved and rubber stamped by the Court based on the fact that the Claim Number 3 (ECF CLAIMS 1 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 2 of 325 REGISTER: CLAIM 3-1 & CLAIM 3-1 PART 2) based on a purported Judgment in the amount of $5,255,638.91 (Five Million Two Hundred Fifty Five Thousand Six Hundred Thirty Eight Dollars and Cents 91/100), entered on September 28, 2019, in a State Court foreclosure action entitled Davis v. Allard, et al., in the Supreme Court of the State of New York, County of New York, bearing Index Number 109284/2005, is erroneous. PRELIMINARY STATEMENT 1. As will be demonstrated below the Motion of the Trustee is devoid of any merit based on the fact that the Proof of Claim No. 3 filed by the Creditor 50 EAST 126TH STREET REALTY LLC in the amount of $7,120,547.68 (ECF CLAIMS REGISTER: CLAIM 3-1 & CLAIM 3-1 PART 2), is based on an erroneous judgment. 2. Additionally, contrary to the Trustee’s statement in ¶ 1 of his Motion, that “1. The Stipulation fully resolves the treatment of 126 Realty’s claim in the manner that will directly benefit creditors and Debtor.”, in fact, this Stipulation will allow the Creditor 50 EAST 126TH STREET REALTY LLC in reaping and stealing $3,500,000.00 on a fatal Judgment of Foreclosure and Sale dated September 4, 2018, entered on September 28, 2018, for “the sum of $5,255,38.91 [Five Hundred Twenty Five Thousand Five Hundred Thirty Eight and Cents 91/100], together with interest thereon from July 1, 2017 until entry of judgment as provided in the loan documents”. (ECF Doc. No. 118-10). 3. It is respectfully submitted that the four corners of the Judgment of Foreclosure and Sale evidences that the Judgment of Foreclosure and Sale is for only in “the sum of $5,255,38.91 [Five Hundred Twenty-Five Thousand Five Hundred Thirty-Eight and Cents 2 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 3 of 325 91/100], together with interest thereon from July 1, 2017 until entry of judgment as provided in the loan documents”. (ECF Doc. No. 118-10). However, in its fabricated claim the Creditor 50 EAST 126TH STREET REALTY LLC, erroneously claims the amount of $7,120,547.68 based on a purported Judgment in the amount of $ $5,255,638.91. (ECF CLAIMS REGISTER: CLAIM 3-1 & CLAIM 3-1 PART 2). 4. In fact, the Creditor 50 EAST 126TH STREE REALTY LLC’s Proof of Claim No.3 is factually untrue. 5. The Debtor’s present attorney investigated the matter and discovered that GISELE BOUILLETTE ALLARD is being taken advantage of her situation by the Creditor, 50 EAST 126TH STREET REALTY LLC, and its predecessor-in-interest, JOCELYN CADE DAVIS, AS EXECUTRIX OF THE ESTATE OF ROBERT ROBINSON, and their agents. In fact, based on this erroneous Claim the Debtor’s GISELE ALLARD two valuable properties and a lucrative net lease investment were sold by the chapter 7 Trustee based on this erroneous claim filed by the creditor 50 EAST 126TH STREET REALTY LLC against GISELE BOUILLETTE ALLARD’s bankruptcy estate in the sum of $7,120,547.68, purportedly representing a Judgement, dated September 28, 2018, in the sum of $5,255,638.91 together with interest thereon from July 1, 2017 per the referee's amortization schedule applying 25% interest as of 9/28/2018 and post judgment interest at 9% from 9/28/2018 to 12/18/2018, total Amount Due As of the Date of Filing of Bankruptcy Petition 12/19/2018- $7,113,819.68. (ECF CLAIMS REGISTER: CLAIM 3-1 & CLAIM 3-1 PART 2). 3 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 4 of 325 6. Further, the Debtor’s former attorneys both in State Court and the Bankruptcy Court, mistakenly believed the Judgment of Foreclosure and Sale, dated September 4, 2018, entered on September 28, 2018 is for the sum of $5, 255,638.91 (Five Million Two Hundred Fifty Five Thousand Six Hundred Thirty Eight Dollars and Cents 91/100, when in fact the Judgment of Foreclosure and Sale dated September 4, 2018, entered on September 28, 2018, is for “the sum of $5,255,38.91 [Five Hundred Twenty Five Thousand Five Hundred Thirty Eight and Cents 91/100], together with interest thereon from July 1, 2017 until entry of judgment as provided in the loan documents”. (See page 2 of the Judgment of Foreclosure and Sale ECF Doc. Number: 18-10). 7. That the Debtor served and filed Objection to Claim Number 3. (ECF Doc Number 172), dated May 18, 2021, noticed for a hearing on June 29, 2021 before this Court, a copy of which together with the Affidavit of Debtor and Exhibits attached thereto are annexed hereto and made a part hereof and the Court is respectfully submitted that in conjunction with this Debtor’s Objection to the Trustee’s Motion, said Objection be considered by the Court as Supplemental Objection to the Trustee’s Motion to Compromise Claim with Creditor 50 EAST 126TH STREET REALTY LLC, herein. FACTUAL BACKGROUND 8. For the factual background the Court is respectfully referred to the Affidavit of GISELE BOUILLETTE ALLARD, Debtor in support of the Objection (ECF Doc. Number: 172), and Exhibits and Court Documents attached hereto and referred to in the Objection. 4 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 5 of 325 STIPULATION RESOLVING TREATMENT OF CLAIM OF CREDITOR 50 EAST 126TH STREET REALTY, LLC SHOULD NOT BE APPROVED AND RUBBER STAMPED BY THE COURT UNTIL A DETERMINATION IS MADE BY THE COURT ON OBJECTION OF THE DEBTOR NOTICED FOR 6/29/2021 9. It is respectfully submitted that the Bankruptcy Court whose aid the Creditor EAST 126TH STREET REAKLTY LLC seeks for enforcement of an asserted claim is not bound to treat the tendered proof as conclusive. When objections are made (ECF Doc. Number 172), the Bankruptcy Court is duty bound to pass on them. That process is, indeed, of basic importance in the administration of a bankruptcy estate whether the objective be liquidation or reorganization. Without that sifting process, unmeritorious or excessive claims might dilute the participation of the legitimate claimants. § 502(b) imposes a duty on the bankruptcy court to determine the allowed amount of a claim once an objection has been filed. See Gardner v. New Jersey, 329 U.S. 565, 581-82, 67 S. Ct. 467, 91 L.Ed. 504 (1947) (“When objections are made, [the court] is duty bound to pass on them.”). 10. In the case at bar, upon discovering filing of an erroneous claim by the Creditor 50 EAST 126T STREE REALTY LLC, based on a purported judgment of $5,255,638.91 by the Debtor’s present attorney, the Debtor served and filed Objection to Claim Number 3. (ECF Doc. Number 172), dated May 18, 2021, a copy of which together with the Affidavit of Debtor and Exhibits attached thereto are attached hereto and made a part hereof. 11. It is astounding and there is no valid reason as to why the Debtor’s debt based on a “$5,255,38.91” [Five Hundred Twenty-Five Thousand Five Hundred Thirty-Eight Dollars and Cents 91/100], Judgment of Foreclosure and Sale, entered on September 28, 2018, 5 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 6 of 325 in a State Court foreclosure action, the Creditor’s 50 EAST 126TH STREET REALTY LLC’s Claim is now changed to a Judgment in the tune of $5,255,638.91 (Five Million Two Hundred Fifty-Five Thousand Six Hundred Thirty-Eight and Cents 91/100). 12. It is further respectfully submitted that in the State Court foreclosure action, this Creditor’s assignor, predecessor-in-interest, JOCELYN CADE DAVIS, AS EXECUTRIX OF THE ESTATE OF ROBERT ROBINSON so called “ministerial change”, requested in their motion, for “An Order modifying the Referee’s Report; Confirming the Referee’s Report as modified; and Awarding the Plaintiff a Judgment of Foreclosure and Sale”, in turn resulted in the fatal Hon. Judith N. McMahon order confirming a Judgment of “$5,255,38.91”, miraculously and without any explanation, the amount owed by the Debtor GISELE BOUILLETTE ALLARD jumped from $329,272.62 confirmed by Referee Davis’ Report (ECF Doc. No. 18-4) to “$5,255,38.91” in the Judgment of Foreclosure and Sale (ECF Doc. No. 18-5). 13. It is further respectfully submitted that in the State Court foreclosure action fatal Judgment of “$5,255,38.91” [Five Hundred Twenty Five Thousand Five Hundred Thirty Eight Dollars and Cents 91/100], miraculously and without any explanation, jumped from “$5,255,38.91” [Five Hundred Twenty Five Thousand Five Hundred Thirty Eight Dollars and Cents 91/100] (ECF Doc. No. 18-5) into the Creditor/Mortgagee’s Proof of Claim to an exuberant and astonishing Judgment in the sum of $5,255,638.91 together with interest thereon from July 1, 2017 until entry of judgment together with “Per the referee's amortization schedule applying 25% interest, the Claimant is entitled to…Total amount: $7,120,547.68.” (ECF CLAIMS REGISTER: CLAIM 3-1 & CLAIM 3-1 PART 2). 6 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 7 of 325 14. Clearly, based on the all of the foregoing reasons, the Creditor’s Claim (ECF CLAIMS REGISTER: CLAIM 3-1 & CLAIM 3-1 PART 2) is erroneous, and therefore pursuant to sections 105 and 502 of the Bankruptcy Code and Bankruptcy Rule 3007, the Debtor has filed Objection noticed for June 29, 2021, seeking an order disallowing and expunging Claim 3, and for such other and further relief as this Court may deem just proper under the circumstances of this case and to achieve substantive fairness in this case. 15. Therefore, it is respectfully submitted that at this juncture the Trustee’s that branch of the Motion pursuant to 11 U.S.C. § 105(a) and Federal Rule of Bankruptcy Procedure 9019(a) seeking an order approving stipulation resolving treatment of the Creditor 50 EAST 126TH STREET REALTY LLC’s erroneous Claim Number 3 should not be approved and rubber stamped by the Court. 16. Further, a careful review of the ASSIGNMENT OF JUDGMENT, dated January 16, 2019, made by JOCELYN CADE DAVIS, AS EXECUTRIX OF THE ESTATE OF ROBERT ROBINSON, as Assignor, and 50 EAST 126TH STREET REALTY LLC, as Assignee (ECF Doc. No. 18-10), reveals that the Assignor “assigns unto Assignee, without recourse to Assignor in any event, that certain Judgment of Foreclosure and Sale dated September 28, 2018, entered in the action known as Davis v. Allard, et al., in the Supreme Court of the State of New York, County of New York, bearing Index Number 109284/2005 of that Court (the “Supreme Court Action”), which Judgment of Foreclosure and Sale ordering, adjudging and decreeing, among other things, that the Assignor was due the sum of $5,255,638.91 plus interest, advances, costs, disbursements, allowances 7 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 8 of 325 and legal fees as described therein (the “Foreclosure Judgment”), a true copy of which is annexed hereto as Exhibit “A”.” (ECF Doc. # 18-10). 17. It is respectfully submitted that the amount of Judgment awarded in the Foreclosure Action as opposed to $5,255,638.91 [Five Million Two Hundred Fifty Five Thousand Six Hundred Thirty Eight Dollars and Cents 91/100] stated in the Assignment of Judgment is “$5,255,38.91” [Five Hundred Twenty Five Thousand Five Hundred Thirty Eight Dollars and Cents 91/100], together with interest thereon from July 1, 2017, while the amount of Judgment of Foreclosure and Sale stated in Assignment of Judgment of Foreclosure and Sale is $5,255,638.91” (ECF Doc. No.18-10), and therefore, the Assignment of Judgment to this Creditor is incorrect and defective on its face and of no force and effect and gives this Creditor no standing. 18. It is further respectfully submitted that the purported amount of the Judgment of Foreclosure and Sale stated in the Judgment of Foreclosure and Sale (ECF Doc. No. 18-10) and in the Creditor’s Motion to Vacate Stay (ECF Doc. No. 18) and Declaration of Abraham N. Kleinman, Esq. (ECF Doc. No. 18-1) and the Assignment of Judgment of Foreclosure and Sale (ECF Doc. No. 18-10) and the Notice of Sale attached hereto as Exhibit “A”) are all contradictory. 19. In fact, the amount awarded in Judgment of Foreclosure and Sale and stated in Motion to Vacate Stay and Kleinman’s Declaration is $5,255,38.91 [Five Hundred Twenty Five Thousand Five Hundred Thirty Eight Dollars and Cents 91/100], together with interest thereon from July 1, 2017, while the amount of Judgment of Foreclosure and Sale stated in Notice of Sale (Exhibit “A”) attached hereto) and Assignment of Judgment of Foreclosure and Sale (ECF 8 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 9 of 325 Doc. No. 18-10) and Proof of Claim (ECF Claims Register Claim No.3), purportedly claiming amount of Judgment $5,255,638.91 [Five Million Two Hundred Fifty Five Thousand Six Hundred Thirty Eight Dollars and Cents 91/100], are all contradictory. 20. In addition, the Assignment of Judgment of Foreclosure and Sale (ECF Doc. No. 18- 10) alleges an incorrect date of the Judgment of Foreclosure and Sale. 21. Based upon the foregoing, the Creditor 50 EAST 126TH STREET REALTY LLC, mislead this Court in order to take advantage and commit wrongs on the Debtor and the Court, and on March 19, 2019, secured an Order vacating the automatic stay for allowing the enforcement of its rights in, and remedies in and to, the Debtor’s Property known and located at 50 East 126th Street, New York, New York, and for completion of the pending foreclosure proceeding in the Supreme Court of the State of New York, County of New York. (ECF Doc. No. 22). 22. The Debtor’s Bankruptcy Claim Register maintained by this Court shows that after the issuance of the Lift Stay Order, on April 18, 2019, the creditor 50 EAST 126TH STREET REALTY LLC, filed an erroneous Claim (ECF CLAIMS REGISTER: CLAIM 3-1 & CLAIM 3-1 PART 2) against the Debtor’s bankruptcy estate in the sum of $7,120,547.68, representing $5.255,638.91 Judgement, dated September 28, 2018, with interest thereon from July 1, 2017 until entry of judgment together, and as “Per the referee's amortization schedule applying 25% interest…Total amount: $7,120,547.68.” (ECF Claims Register Claim No.3). 23. As is evidenced by the Notice of Sale dated July 10, 2019 (Exhibit “A” attached hereto the Debtor’s Objection), a foreclosure public auction of the subject property was scheduled for August 7, 9 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 10 of 325 2019, by the Creditor 50 EAST 126TH STREET REALTY LLC, pursuant to the Judgment of Foreclosure and Sale, dated September 4, 2018, by and through TRACEE E. DAVIS, Referee, and Umer Sheikh, Esq., and Offit Kurman, Esq., attorneys for Plaintiffs, in Room 130,of the New York County Supreme Court, 60 Centre Street, New York, New York. The Notice of Sale provides for that “Approximate amount of Judgment lien is $5,255,638.91, plus interest from July 1, 2017 plus other amounts specified in the Judgment of Foreclosure and Sale.” (See Exhibit “A” attached hereto the Debtor’s Objection). 24. As can be seen from the Declaration of Albana Petrakov, Esq., dated August 28, 2019 (ECF Doc. No. 72-1), submitted by the Creditor 50 EAST 126TH STREET LLC’s attorney to this Court in Opposition to the Debtor’s Motion to Reclassify Debt, in regard to the August 7, 2019 public auction of the subject mortgaged property, “Tracee Davis, the special referee appointed to conduct the sale advised that she would not be able to proceed on the scheduled date.” (See ¶ 7 of Declaration of Albana Petrakov, dated August 28, 2019 ECF Doc. 72-1). As can be further seen from the ¶ 26 of the Affirmation of Umer Sheikh, Esq., affirmed to the 20th day of August 20, 2019 (ECF Doc. Number 172), Creditor’s attorney submitted to the State Court in Opposition to the Debtor’s Order to Show Cause for stay of August 21, 2019 foreclosure auction “but based upon the Referee being unavailable at the last minute, the Plaintiff adjourned the sale to August 21, 2019.” 25. The Creditor, “8. 126th Street Realty re-noticed the sale again, this time for August 21, 2019.” (ECF Doc. No. 72-1, ¶ 8 of Declaration of Albana Petrakov, dated 10 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 11 of 325 August 28, 2019). 26. That a Foreclosure Action Surplus Money Form, dated 8/21/2019, made by the Referee, Tracee E. Davis, shows that at the adjourned Foreclosure Auction held on August 21, 2019, the Creditor 50 EAST 126TH STREET REALTY LLC was the purchaser of the subject property and that: “Amount of final judgment of foreclosure $ 5,255,631.98 Sale price of property $ 1,220,000.00 Upset price $ 100,000.00 Surplus money $____N/A____” (ECF Doc. No. 70-1). 27. It is respectfully submitted that the Debtor has made a Motion returnable on June 10, 2021 in the State Court foreclosure action seeking an order to vacate and set aside the public foreclosure auction of the Debtor’s house upon the grounds that the Public Foreclosure Auction Sale of the mortgaged property known and located at 50 East 126th Street, New York, New York, to the plaintiff 50 EAST 126TH STREET REALTY LLC, as successful bidder, for the sum of One Million Two Hundred Twenty Thousand ($1,220,000.00) Dollar, conducted in the foreclosure action on August 21, 2019, was based on non-publication of the Notice of Adjourned Sale, required to be published in the New York Law Journal pursuant to N.Y. Real Property Actions Law §231(3) which requires: “3. Notice of postponement of the sale shall be posted at least three days prior to the postponed date in the same places as the original notice of sale when posting of the notice of sale is required, and shall be published once at least three days prior to the postponed date in the newspaper in which the notice of sale was originally published.” 11 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 12 of 325 28. In addition, the Debtor has also alleged in her Motion to the State Court to vacate and set aside the Judgment of Foreclosure and Sale, upon the grounds of erroneous conduct of the Creditor and Tracee E. Davis, Esq., Referee to Sell under the Judgment of Foreclosure and Sale. 29. A copy of the Debtor’s Notice of Motion together with the supporting Affirmation and Affidavit was also served on the chapter 7 Trustee and his attorneys. 30. It is respectfully submitted that to date the Referee’s Report of Sale required to be filed with the State Court within 30 days of the sale under New York RPAPL §1371 having not been filed. Furthermore, to date no deficiency judgment having been entered against the Debtor. Further, to date no motion for leave to enter a deficiency judgment against the Debtor having been made by this Creditor in the State Court. 31. It is respectfully submitted that based on numerous defects in the public foreclosure auction of the Debtor’s property to the Creditor 50 EAST 126TH STREET REALTY LLC, the foreclosure auction conducted on 8/21/2019 is expected to be vacated and set aside by the State Court based on numerous defects including but not limited to the violation of N.Y. Real Property Actions Law §231(3); N.Y. RPAPL 1351(1), which provides that “the mortgaged premises….be sold by or under the direction of the…referee within ninety days of the date of the judgment.”; disallowance, reduction and/or extinguishing the interest accrued during the time that the Creditor took no action to prosecute this foreclosure; the Judgment of Foreclosure and Sale is civilly usurious in violation of General Obligations Law §5-501 and Banking Law §14- 12 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 13 of 325 a(1), and criminally usurious in violation of Penal Law §190.40, which penalizes a rate exceeding 25%. 32. Further, the underlying Judgment of Foreclosure and Sale based on the Debtor’s pending motion in the State Court foreclosure action, has to be vacated and resettled after the appointment of new referee since in its Status Report dated March 24, 2021 (ECF Doc. No. 151), the Creditor’s attorney reported to this Court “the referee has the Referee advised us that she had not been paid her fee of approximately $17,000.00, which the Creditor handled directly with the Referee and paid in November 2019.” (See page 2 of ECF Doc. No. 151). 33. It is at present unknown what work was performed by the Referee for this Creditor for the sum of $17,000.00. Pursuant to New York C.P.L.R. 8003 [a]) “A referee is entitled, for each day spent in the business of the reference, to fifty dollars unless a different compensation is fixed by the court or by the consent in writing of all parties not in default for failure to appear or plead”. See Pittoni v Boland, 278 AD2d 396, 397 [2d Dept 2000]; Neuman v Syosset Hosp. Anesthesia Group, P.C., 112 AD2d 1029, 1030 [2d Dept 1985]). 34. It is respectfully submitted that the State Court is not going to award the Creditor a deficiency judgment unless the referee’s report of sale is filed based on the foreclosure sale of the subject property to the Creditor on 8/21/2019, based on a purported Judgment of Foreclosure and Sale in the sum of $5,244,631.98, and if such a report is going to be filed, the Debtor is going to challenge. In addition, the underlying fatal and defective judgment of foreclosure and sale is expected to be vacated and a new judgment of foreclosure and sale has to be issued by the State Court after resolving and curing all material defects stated herein and in the Debtor’s 13 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 14 of 325 Motion returnable of June 10, 2021 in State Court, a copy of which was also served on the chapter 7 Trustee and his attorneys. 35. Therefore, it is respectfully submitted that based on the all of the foregoing reasons, and based on the Debtor’s Objection noticed for June 29, 2021 (ECF Doc. No. 172), this Court is not going to allow the Creditor’s Claim (ECF CLAIMS REGISTER: CLAIM 3-1 & CLAIM 3-1 PART 2), and an order is going to be made by this Court on Debtor’s Objection pursuant to sections 105 and 502 of the Bankruptcy Code and Bankruptcy Rule 3007, disallowing and expunging Claim 3 (ECF CLAIMS REGISTER: CLAIM 3-1 & CLAIM 3-1 PART 2). 36. Since the erroneousness of the Creditor 50 EAST 126TH STREET REALTY LLC’ claim is obvious, as it submitted and filed a prima facie erroneous and inaccurate proof of claim in all respects. CONCLUSION WHEREFORE, the Debtor respectfully requests that the Court enter an order, denying the Trustee’s that branch of the Motion seeking an order approving stipulation resolving treatment of the Creditor 50 EAST 126TH STREET REALTY LLC’s fabricated and erroneous Claim Number 3 should not be approved and rubber stamped by the Court, and granting such other and further relief as the Court deems just and proper in the interest of justice and to achieve substantive fairness in this case. Dated: Massapequa, New York Anne Rosenbach, Esq. /s/ May 29, 2021 _________________________ ANNE ROSENBACH, ESQ. Attorney for Debtor 14 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 15 of 325 Case No.: 18-14092 (MG) Chapter 7 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------X In re: GISELE BOUILLETTE ALLARD, Debtor. ----------------------------------------------------------------------X NOTICE OF HEARING TO CONSIDER DETOR’S OBJECTION TO PROOF OF CLAIM NUMBER 3 FILED BY THE CREDITOR 50 EAST 126TH REALTY LLC ===================================================================== ANNE ROSENBACH, ESQ., PLLC Attorney for Debtor GISELE BROUILLETTE ALLARD 3 Delta Road Massapequa, NY 11758 Tel.: (516) 795-7808 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 16 of 325 Hearing Date and Time: June 29, 2021 at 11:00 a.m. (Eastern Time) Objection Deadline: June 21, 2021 at 4:00 p.m. (Eastern Time) Anne Rosenbach, Esq. ANNE ROSENBACH, ESQ., PLLC 3 Delta Road Massapequa, New York 11758 Tel.: (516) 795-7808 E-Mail: RosenbachLawFirm@gmail.com Attorney for Gisele Bouillette Allard, Debtor UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re Chapter 7 GISELE BOUILLETTE ALLARD, Debtor. Case No. 18-14092 (MG) NOTICE OF HEARING TO CONSIDER DETOR’S OBJECTION TO PROOF OF CLAIM NUMBER 3 FILED BY THE CREDITOR 50 EAST 126TH REALTY LLC PLEASE TAKE NOTICE that a hearing will be held before the Honorable Martin Glenn, United States Bankruptcy Judge, in his Courtroom at the United States Bankruptcy Court for the Southern District of New York, (“the Court”), Alexander Hamilton U.S. Customhouse, One Bowling Green, New York, New York 1004 on June 29, 2021 at 11:00 a.m. (prevailing Eastern Time) (the “Hearing”) to consider the Debtor’s GISELE BOUILLETTE ALLARD Objection to Proof of Claim Number 3 filed by 50 EAST 126TH STREET REALTY LLC (the “Objection”). 1 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 17 of 325 PLEASE TAKE FURTHER NOTICE that responses or objections to the Objection must be in writing, conform to the Bankruptcy Code, the Bankruptcy Rules and the Court’s Local Rules, be electronically filed with the Bankruptcy Court in accordance with General Order No. M-399, which, along with the User’s Manual for the Electronic Case Filing System, can be found at the Court’s Website, and be served so as to be received by all of them not later than June 21, 2021 at 4:00 p.m. prevailing Eastern time by: (i) the Bankruptcy Judge (a hard copy clearly marked “Chambers Copy” must be delivered to the Court to the attention of Chambers of The Honorable Martin Glenn), (ii) undersigned counsel for the Debtor GISELE BOUILLETTE ALLARD, and (iii) the Office of the United States Trustee for the Southern District of New York, 201 Varick Street, Suite 1006, New York, New York 10014, Attn: Greg Zipes, Esq. (Email: greg.zipes@usdoj.gov). Responses not timely served and filed may not be considered by the Court. PLEASE TAKE FURTHER NOTICE that pursuant to General Order M-543, available on the Court’s website at www.nysb.uscourts.gov (the “Court’s Website”), the Court is not holding in-person hearings at this time; the Hearing will be conducted telephonically. Parties and counsel wishing to participate in the Case Management Conference telephonically must register with Court Solutions no later than one day before the Case Management Conference. Information on how to register with Court Solutions can be found in General Order M-543 and on Court Solutions’ website at https://www.court-solutions.com. 2 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 18 of 325 PLEASE TAKE FURTHER NOTICE that Objection and Debtor’ Affidavit in Support of the Objection may be inspected on the Court’s Website (www.nysb.uscourts.gov), or by request to undersigned counsel. A Pacer password is required to access documents on the Website. PLEASE TAKE FURTHER NOTICE that the Hearing may be adjourned from time to time without any further notice except for an announcement at the Hearing. PLEASE TAKE FURTHER NOTICE that unless a written response to the Objection, with proof of service, is filed with the Bankruptcy Court and a courtesy copy delivered to the Honorable Martin Glenn’s chambers by the Objection Deadline, the Debtor may, on or after the Objection Deadline, submit to the Bankruptcy Court an order substantially in the form of the proposed order attached to the Objection, which order may be entered with no further notice or opportunity to be heard. Dated: Massapequa, New York May 18, 2021 Anne Rosenbach, Esq. /s/ ______________________________ ANNE ROSENBACH, ESQ. ANNE ROSENBACH, ESQ., PLLC Attorney for Debtor GISELE BROUILLETTE ALLARD 3 Delta Road Massapequa, NY 11758 Tel.: (516) 795-7808 3 FILED: NEW YORK COUNTY CLERK 06/29/2022 01:31 PM INDEX NO. 100471/2022 NYSCEF DOC.18-14092-mg NO. 37 Doc 173 Filed 05/30/21 Entered 05/30/21 10:02:31 Main Document RECEIVED NYSCEF: 06/29/2022 Pg 19 of 325 Hearing Date and Time: June 29, 2021 at 11:00 a.m. (Eastern Time) Objection Deadline: June 21, 2021 at 4:00 p.m. (Eastern Time)