Motion-Secondary: Johnnie Faulcon v. Ab Venture Llc

On June 07, 2021 a Motion-Secondary was filed involving a dispute between Johnnie Faulcon, and Ab Venture Llc, for Real Property - Other (Quiet title) in the District Court of Queens County.

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FILED: QUEENS COUNTY CLERK 08/20/2021 04:13 PM INDEX NO. 712889/2021
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 08/20/2021

SUPREME COURT OF THE UNITED STATE OF NEW YORK
COUNTY OF QUEENS
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JOHNNIE FAULCON,
Plaintiff, INDEX NO.:
7283/2009
-against-
PLAINTIFFS AFFIRMATION
IN OPPOSITION

AB VENTURE LLC
Defendants
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STATE OF NEW YORK )
COUNTY OF QUEENS, ) ss:

JOHNNIE FAULCON Plaintiff in the captioned action duly affirms the following

under penalties of perjury;

I am Johnnie Faulcon heir to the estate of Maryann Sherman one of the defendants in

the within action. I am fully aware of the facts and circumstances herein.

1. That this affirmation is respectfully submitted in opposition to all affidavits,

affirmations and claims in the alleged defendants pleadings and motion for dismissal of this

action.

INTRODUCTION

2. This action is to quiet title against the property located at 220-27 134th rd queens NY

11413.

3. There’s a recorded mortgage on the ACRIS website which is unenforceable due to

fraudulent misrepresentation at the closing of the loan. The discovery of this defect was

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subsequent to an action commenced by the lender Bankunited FSB on March24th 2009. As heir

to the estate and now owner of the above mentioned property in am obligated by law to clear any

clouds on my title by taking affirmative action. The referral to the pending action is only for

documentary proof of the fraudulent intent to utilize this defective mortgage jeopardizing the

marketability of the property as well as causing financial losses of anyone who subsequently

takes ownership of the defective documents. Therefore i plead to quiet title of this encumbrance

pursuant to article 15.

STATEMENT OF FACTS

4. The defendant is a purported assignee of a mortgage claimed to be duly executed on

april 23rd 2007 between Bankunited FSB and borrower Maryann Sherman (Exhibit A).

5. This mortgage was purportedly duly recorded on may 17 2001 in the county of queens

under CRFM 2007000297456.

6. Bankunited FSB1, (the original lender) commenced foreclosure action under index

number 7283/2009 on march 23rd2009 in the Queens county court naming the sole borrower

Maryann Sherman as the defendant and demanding a deficiency judgment against her (Exhibit

B).

7. The defendants predecessor Bankunited FSB did not attatch a copy of the original note

and mortgage to the complaint with its filing with the court.

1
On Thursday, May 21, 2009, BankUnited, FSB, Coral Gables, FL was closed by the Office of Thrift Supervision
(OTS) and the Federal Deposit Insurance Corporation (FDIC) was named Receiver. Subsequent to the closure,
BankUnited, a newly chartered federal savings bank, acquired the assets and most of the liabilities of BankUnited,
FSB from the FDIC as Receiver for BankUnited, FSB. No advance notice is given to the public when a financial
institution is closed.

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8. The case was stayed because the complaint named a deceased borrower and demanded a

deficiency.

9. On June 4th 2013 three years later the mortgage was assigned to CASTLE PEAK 2012

who initially moved to remove the stay (previously ordered due to the death of the borrower) and

for a default order of reference against the heirs (Exhibit C). .

10. This motion contain a purported certified copy of an allonge attached to a copy of the

original note and a copy of a purported originally recorded mortgage.

11. The mortgage exhibited in this motion was not the recorded one because all of the

initials and signatures were different and acknowledged by a different notary signing agent

named James Carroll. It also was missing the recording clerks notation at the top (Exhibit D).

12. The next assignee SC Bromley 1 LLC moved for an order of reference and produced

the same document. The attorney and affiant stated this under oath that this purported mortgage

was the originally recorded one (Exhibit E). They then filed for foreclosure twice and order of

reference three times producing the same documents.

13. After several assignments, the foreign New Jersey corporation AB VENTURE LLC

is now attempting to enforce a differently executed copy of the mortgage. This mortgage was

deceptively exhibited in the motion #11 attorneys statement in an affidavit by Oleg Langbort the

managing member. This is obviously a downloaded copy from the publicly accessed ACRIS

website because the alignment of the pages in their motion for JFS matches exactly (Exhibit F).

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14. These facts is all that is needed because this initial defective act cannot be corrected.

The continual use of these document in everyday business perpetuates the danger of inter alia

false claims, over securitization and unnecessary litigation..

PLAINTIFFS STANDING

16. The plaintiff has ownership of the property through intestate succession and has a

personal stake in the property. The plaintiff has been in possession of the property for over 10

years. Maryann Sherman is the mother of Johnnie Faulcon who passed away on june 23rd 2008.

The doctrine of standing pursuant to article 15 requires that a plaintiff must have a personal stake

in the outcome of the case in order to bring suit. Gustafson v. Gustafson, 47 Wn. App. 272, 276,

734 P.2d 949 (1987).

17. This quiet title action does not base plaintiffs standing on a breach of contract claim

derived from a condition in the mortgage but the recordation, utilization, transference

collateralizing to a secondary mortgage market and enforcement of an illegally executed

document which encumbrances a property in which I hold legal title to. This false information

was sworn to and made public by the defendants predecessor and itself (see below).

PLAINIFFS CAUSE OF ACTION

18. “In considering a motion to dismiss pursuant to CPLR 3211 (a)(7) for failure to state a

cause of action, "the pleadings must be liberally construed and "'the sole criterion is whether

from the complains four corners factual allegations are discerned which taken together manifest

any cause of action cognizable at law' (Bank of . Y. Mellon Trust Co., N.A. v Universal Dev.

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LLC 136 D3d 850, 850 (2d Dept 2016], quoting Guggenheimer v Ginzburg, 43 NY2d 268 275

(1977]· Lee Dodge, Inc. v overeign Bank, .A., 148AD3d 1007, 1008(2dDept2017]).”

19. This complaint as construed attest to nothing but factual documentation. It also

explains the facts surrounding the execution, swearing to and utilization of such documentation

and the defects they contain that cloud the legal rights of the plaintiffs ownership to the subject

property. Article 15 was created for these types of conflicts with a broad reach but this type of

improper act is not common but must be remedied2 . The cause of action stems from fraudulent

misrepresentation, fraudulent intent and negligent misrepresentation is legally appropriate and

should be considered in the interest of justice.

DEFENDANTS EXAGERATIONS

20. The claim that the plaintiff has moved for dismissal 9 times is false and there’s no

record of such a number. Furthermore the defendant should note that CPLR §3211 contains a

long list of reasons a defendant may move to dismiss either a complaint or a cause of action.

Some of the reasons must be asserted within a specified time, but others may be asserted at any

time. The motions for dismissal are partly due to the courts neglecting to specify the denials of

that cases defendant Johnnie faulcon, depriving a cognizable opportunity to move for re-

argument. In other words theres nothing to base the courts misapprehension of facts when the

court never commented on any facts in those respective motions.

21. The defendant AB VENTURE attempts to give the impression that this is an issue

that’s been hashed out but to the contrary the defendants predecessors concealment of

2
RPAPL 1501(1) provides that any person who claims an estate or interest in real property ... may maintain any
action against any other per on ... to compel the determination of any claim adver e to that of the plaintiff which the
defendant make , or which it appears from the public record , or from allegations of the complaint, the defendant
might make ... '

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documents, false representation and untruthfulness has lasted the entire case . The affidavit in

support by the plaintiffs predecessors has sworn to the accuracy of its claims and as the various

dismissive acts became apparent, I had cross moved containing the immediate issues. One

reason to move for dismissal is the AB VENTURE neglected to include the five mysteriously

appearing allonges submitted in a third motion for judgment of foreclosure and sale which were

not attached to the note at any time during the action (Exhibit G). Clearly this is not a

continuation to forestall the defendants AB VENTURES alleged right to foreclose.

22. The defendant AB VENTURE has stated its own standing in the pending action was

challenged and determined. To the contrary this defense was not raised because of the defendants

processors false attestations and concealments of critical documents as well as the actions

naming a deceased borrower at conception having the effect of a nullity as against the named

borrower (Exhibit B) supra. This was a lack of subject matter jurisdiction.

23. The defendant referral to “Citimortgage, Inc. v. Haggerty, 2018 N.Y. Misc. LEXIS

6679, at *11 (Sup. Ct. Suffolk Cty. Dec. 26, 2018” in its memorandum is misplaced. First the

affirmative defense that was strickened was stating the loan was not properly accelerated absent

an acceleration letter. That would apply to the standard FREDDIE MAC/FANNIE MAE

mortgages at section 22 under NON-UNIFORM COVENANTS. That defense pointed to a

breach of contract issue which is not the case here. This is a defective mortgage which is a lien

on a legally acquired property and as a result it cannot be enforced, assumed, modified,

transferred or even satisfied because of the defendants predecessors fraudulent acts cited earlier.

The original borrower is not needed for these options to transpire.

THE MORTGAGE THAT WAS RECORDED IS UNENFORCEABLE

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24. as stated in the complaint the mortgage AB VENTURE is attempting to enforce has

been executed by two different closing agents one of which has been disbarred from practicing

law ( Exhibit H).

25. these two mortgages were utilized in the normal business practice by the subsequent

holders of these loan documents. The evidence cannot be refuted as the defendants agents have

sworn statements as to the authenticity and accuracy of the defective documents (Exhibit I).

26. these documents were not executed with the knowledge or consent of the borrower the

bank or any third party as the defendant has failed to provide such proof.

27. the defendants predecessors have transferred these defective document representing

them as being properly executed in and out of court as the various affiants purport to have

personal knowledge of. Additionally, the defendants predecessors have repeatedly deceived the

court to believe it had duly executed an original mortgage that was properly recorded.

28. apparently the defendant does not refute the claims the plaintiff has stated in its

complaint but instead the defendant has try to disclaim the warranties and liabilities it has

acquired from its assignor SC BROMLEY 1 LLC . The ability to negotiate a settlement through

a short sale, loan modification, forbearance agreement, reinstatement or redemption

automatically proves that the defendant has acquired full rights and liabilities of the assignor just

as the original lender would have been able to do3.

29. not only the defendant has presented the court with false statements but they have not

proved they are even in possession of the originally recorded mortgage. A certificate of

acknowledgment entitles a deed or other instrument to be recorded so the certificate itself must

3
https://www.fdic.gov/resources/resolutions/bank-failures/failed-bank-list/bankunited-p-and-a.pdf

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be valid. The certificate must show that the deed or instrument was validly executed by the

parties and that the execution was acknowledged. This can not be a pick and choose situation of

which one is valid because both are (with full knowledge), improperly represented as an original

document. Also this cannot give constructive notice to a bonafide purchaser for value.

30. As exhibited above the defendants predecessor utilization of recorded and a contrasting

unrecorded mortgage ascribing the same transaction creates a plethora of problems for all those

who become involved. As in the past new York courts have held unrecorded mortgages to be

valid while the recorded ones that had minor defects to also be held valid. In this instance though

the deliberate usage of both the mortgage documents that were executed by two different closing

agents one of which has been disbarred is tantamount to fraud and at the very least fraudulent

intent. Furthermore the undisclosed securitization of the mortgage and note in trusts like

Castlepeak 2012 and then SC Bromley 1 llc expands the realm of negligence yet to be

discovered..

SIGNATURE DEFECTS

31. the signature on the deed does not match the loan documents and as a result cannot

definitively prove through the documents that this person is the same signatory. The complaint

and loan documents fail to include all variants of this persons name on the important documents

evidenced, including the photo id. This is not a breach of contract claim but a lack of interest

claim and as such that claim must be backed up with evidence of proper execution. The

discrepancy of the names cannot be overlooked as courts have looked beyond the mortgage to

the other executed documents as well to determine if a valid agreement can exist otherwise. The

fraudulent notarization at the closing invalidates the integrity of the purported execution of the

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remaining documents as well. The fraudulent notarization is not a mere omission of a signature

which one can examine other documents for intent of the parties but is a deliberate act of

fraudulent intent of many sorts. Furthermore all the names of the borrower on their complaint

commenced in 2009 is not the correct borrowers names manifested in any of the loan

documents.

32. The defendant contradicts its understanding and of the position and rights of the

opposing parties by willful ignorance. Ironically they sue the heirs personally as if they were

obligators with not one scintilla of acknowledgement of this flaw but yet in this case their

immediate papers utilize the defense that I am not an obligator.

POST ACCELERATION OF THE NOTE

33. The commencement of the aforementioned action by the defendant is the affirmative

act of demanding the payment on the loan immediately. The action clearly stated that if the sale

of the property was not enough satisfy the amount owed that a deficiency action would be

sought. The action intended to name the sole obligator on the note and mortgage and

subsequently the lender attempted to serve this sole obligator. The intent to sue for deficiency

was never waived even after the lender discovered the death of the borrower. This is

memorialized in their entry of foreclosure and sale in 2015 which the final decree was granted

seeking of a deficiency post foreclosure against the heirs (Exhibit J). The law clearly does not

allow this as the estate of the borrower is the proper entity to be sought after. As this action being

a nullity for its inception for over ten years after acceleration of the entire loan amount, the

defendant AB VENTURES claim is barred by the 6 year stature of limitations (see MSMJ

Realty, LLC v DLJ Mtge. Capital, Inc., 157 AD3d 885, 886 [2d Dept 2018]). This applies to the

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note which renders the defective loan unenforceable in that respect. Any action based on

enforcing this mortgage is also itself an encumbrance upon the property and must be dismissed.

34. "In the context of a mortgage foreclosure action, where a deceased defendant made an

absolute conveyance of all his or her interest in the mortgaged premises to another defendant,

including his or her equity of redemption, and the plaintiff either discontinued the action as

against the deceased defendant or elected not to seek a deficiency judgment against the deceased

defendant's estate, then the deceased defendant is not a necessary party to the action" (U.S. Bank

N.A. v Esses, 132 AD3d 847, 848; see HSBC Bank USA v Ungar Family Realty Corp., 111

AD3d 673; Bank of N.Y. Mellon Trust Co. v Ungar Family Realty Corp., 111 AD3d 657). Here,

however, those circumstances are not present. The complaint was never amended or dismissed

and properly naming the heirs waiving this deficiency but instead went through the whole

process demanding an improper foreclosure and deficiency of the non-obligators pursuant to

rpapl 1371.

CONCLUSION

None of the issues raised are boilerplate, baseless or conclusary. The are supported by

undisputed facts as the record demonstrates. The truthfulness, diligence, timeliness, legality that

is lacking in the plaintiffs claims during and after the exposure of the foreclosure scandal is a

testament to a departure from prudent business practices. Furthermore the effects of foreclosure

on family friends and the neighborhood has taken an intangible toll which can be intimidating

humiliating as well as debilitating while the plaintiff strategizes in and out of court to maximize

its finances by all means. I believe ive shown that the balance of justice should weigh in my

favor. The countless shortcomings (to put it lightly) of the plaintiffs right to foreclose has been a

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microcosm of a large part of the industries ill-gotten gains . This case stands out as one that

violates many statutes that needs to be upheld not just for this individual case but to represent the

public good.

WHEREFORE I respectfully believe this court should not sign the plaintiff AB

VENTURES motion to dismiss this action.

Dated August 19,2021

Johnnie Faulcon
defendant

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Case Info

Judge

Ulysses B Leverett Track Judge’s New Case

Case No.

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Document Filed Date

August 20, 2021

Case Filing Date

June 07, 2021

County

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