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FILED: QUEENS COUNTY CLERK 03/01/2023 11:02 AM INDEX NO. 705175/2021
NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/01/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
NATIONSTAR MORTGAGE LLC,
Plaintiff, Index No. 705175/2021
-against- PLAINTIFF’S AFFIRMATION IN
OPPOSITION TO DEFENDANTS’
ASHMEEN MODIKHAN; NEW YORK CITY MOTION TO VACATE
TRANSIT ADJUDICTATION BUREAU; JUDGMENT OF FORECLOSURE
MORTGAGE ELECTRONIC REGISTRATION (Mot. Seq. No. 8)
SYSTEMS, INC.; COUNTRYWIDE BANK, FSB;
MAGNOLIA COURT CONDOMINIUM Mortgaged Premises:
ASSOCIATION, INC.; NEW YORK CITY 94-22 Magnolia Court, 1B
ENVIRONMENTAL CONTROL BOARD; KEVIN Ozone Park, NY 11417
HOSEIN; LIAH HOSEIN,
SBL#: 50-11544-1004
Defendants.
Franklin K. Chiu, Esq., an attorney duly admitted to practice law before the Courts of the
State of New York, respectfully affirms the following under penalties of perjury and pursuant to
CPLR § 2106:
1. I am an associate of Friedman Vartolo LLP, attorneys for Plaintiff’s assignee U.S.
BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE OF DWELLING SERIES IV
TRUST,1 (“Plaintiff”), in the within foreclosure action and, as such, I am fully familiar with the
facts of this case and the proceedings.
2. I respectfully submit this Affirmation in Opposition to the application by Defendant
ASHMEEN MODIKHAN, (“Defendant”), pursuant to CPLR § 5015(a)(3), to vacate the Judgment
of Foreclosure and Sale, entered on May 20, 2019, which was served upon Defendant with Notice
1
See NYSCEF Doc. No. 84.
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of Entry on July 26, 2019, (see NYSCEF Doc. No. 60). Defendant did not file an appeal, and her
time to do so has long expired.
3. Hence, the final judgment is final as to all questions at issue between the parties
and concludes all matters of defense which were or might have been litigated in the foreclosure
action. See Long Island Sav. Bank, FSB v. Mihalios, 269 A.D.2d 502, 503 (2d Dept. 2000);
Tromba v. E. Fed. Sav. Bank, FSB, 148 A.D.3d 753, 754 (2d Dept. 2017) (“Here, the judgment of
foreclosure and sale that was entered on the [] default in the foreclosure action encompassed all
issues that were raised or could have been raised in that action”); New Horizons Inv'rs v. Marine
Midland Bank, 248 A.D.2d 449 (2d Dept. 1998); Archibald v. Wells Fargo Bank, N.A., 166 A.D.3d
573, 573 (2d Dept. 2018). Therefore, Defendant’s belated challenges to Plaintiff’s standing, lack
of capacity to sue and the Court’s jurisdiction are precluded as a matter of law.
4. Yet, regrettably, upon the federal court’s recent rejection of her frivolous and
untimely attempt to remove this mortgage foreclosure action, (see NYSCEF Doc. No. 82), and
while Plaintiff’s Motion to Discharge her frivolous Notice of Pendency, (Mot. Seq. No. 7), is also
pending a Decision from this Court, Defendant has filed yet another frivolous and untimely
application in her increasingly desperate efforts to unjustifiably delay the completion of this
mortgage foreclosure action, which must be denied in its entirety because, inter alia, it is
improperly pled, without any basis in fact or law, not supported by any admissible evidence
whatsoever, and barred by res judicata.
5. Accordingly, in addition to denial of the instant application, Plaintiff respectfully
submits that this Court should also exercise its inherent discretion and powers to bar Defendant
from filing any further applications or notices in the action without the prior consent of the Court,
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and also directing the Clerk of the Court not to accept any subsequent submissions by Defendant
without the prior approval of the Court.
6. Otherwise, in the absence of such an order, Defendant will most certainly continue
her unjustifiable campaign to abuse the judicial process, which she admittedly describes as
“unrelenting,” (see Affidavit of Ashmeen Modikhan, dated February 9, 2023, ¶21 (NYSCEF Doc.
No. 85, p.8)), by continuing to engage in vexatious litigation for illegitimate purposes, which will
significantly waste precious judicial resources. See Bartlett v. Tribeca Lending Corp., 192 A.D.3d
574, 575 (1st Dept. 2021) (“[g]iven plaintiff’s history of vexatious litigation, the motion court
properly required him to obtain written court approval before filing or serving any litigation
papers…”); DiSilvio v. Romanelli, 150 A.D.3d 1078, 1080 (2017) (“where there has been an abuse
of judicial process, the court may enjoin a litigant from further actions or motion practice without
prior written approval of the court”); Breytman v. Pinnacle Group, 110 A.D.3d 754, 755 (2d Dept.
2013) (“while public policy mandates free access to the courts, when a litigant is abusing the
judicial process by harassing individuals solely out of ill will or spite, equity may enjoin such
vexatious litigation”); Fowler v. Conforti, 194 A.D.2d 394 (1st Dept. 1993) (parties may be
enjoined from further litigation where they have been found to have engaged
in frivolous conduct); Dimery v Ulster Savings Bank, 82 A.D.3d 1034 (2d Dept. 2011); Martin-
Trigona v. Capital Cities/ABC, Inc., 145 Misc. 2d 405, 546 N.Y.S.2d 910 (Sup. Ct., New York
County 1989).
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
7. On January 30, 2012, Plaintiff’s predecessor-in-interest commenced this mortgage
foreclosure action involving a Note and Mortgage, dated April 24, 2007, upon real property located
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at 94-22 Magnolia Court, 1B, Ozone Park, NY 11417, (the “Mortgaged Premises”). See NYSCEF
Doc. No. 54.2
8. On February 3, 2012, the original Plaintiff filed a Supplemental Summons and
Amended Complaint. See NYSCEF Doc. No. 55.
9. On June 28, 2012, Defendant filed for Chapter 7 bankruptcy protection (12-44750,
EDNY), upon which Defendant received a discharge on or about October 10, 2012. See NYSCEF
Doc. No. 56.
10. On October 17, 2014, Defendant by counsel filed a Motion to Dismiss, (Mot. Seq.
No. 1), which prior counsel opposed, and this Court ultimately denied by a Short Form Order,
entered January 16, 2015. See NYSCEF Doc. No. 57.
11. On January 23, 2015, the original Plaintiff filed its successive Notice of Pendency
of the within action. See NYSCEF Doc. No. 58.
12. After release from the Foreclosure Settlement Conference Part on September 30,
2015, prior counsel filed a Motion for Default Judgment and Order of Reference, (Mot. Seq. No.
2), on February 10, 2016, which was granted by the Court, over Defendant’s opposition, by a
Decision and Order, dated September 9, 2016. See NYSCEF Doc. No. 59.
13. On January 25, 2018, Plaintiff filed its Motion for Judgment of Foreclosure and
Sale, which was also granted by this Court, over Defendant’s opposition, by a Decision, dated May
30, 2018, upon which this Court granted Judgment of Foreclosure and Sale, entered on May 20,
2 Subsequently, on March 8, 2021, this matter was converted to electronic filing, and assigned the current
705175/2021 Index No.
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2019, of which a copy was served upon Defendant with Notice of Entry, dated July 26, 2019. See
NYSCEF Doc. No. 60. Defendant did not file an appeal, and her time to do so has long expired.
14. On January 13, 2019, the original Plaintiff also filed another successive Notice of
Pendency of the within action. See NYSCEF Doc. No. 61.
15. Then, on July 9, 2019, Defendant filed her second bankruptcy petition in the U.S.
Bankruptcy Court – E.D.N.Y., Ch. 7 Case No. 19-44172; dismissed on August 26, 2019.
16. Still, on October 31, 2019, Defendant filed her third bankruptcy petition in the U.S.
Bankruptcy Court – E.D.N.Y., Ch. 13 Case No. 19-46591, for which Plaintiff obtained relief from
stay on November 21, 2021. See NYSCEF Doc. No. 62.
17. On December 1, 2020, Defendant filed a notarized Notice of Discharge of Attorney,
which stated her intent to relieve her counsel of record and to proceed in the action pro se. See
NYSCEF Doc. No. 63.
18. In Defendant’s third Bankruptcy Case, the bankruptcy court, inter alia, dismissed
Defendant’s adversary proceeding on the same allegations of fraud against Plaintiff herein. See
Memorandum Decision by the Hon. Jil Mazer-Marino, U.S.B.C.-E.D.N.Y., dated February 19,
2022, (the “Bankruptcy Court Decision”), of which a copy is annexed hereto as Exhibit 1.
19. As referenced in the Bankruptcy Court Decision, “[o]n November 15, 2021, the
Court rendered a decision overruling all of [Defendant’s] objections, allowing [Plaintiff’s] Proofs
of Claim, and granting the Lift-Stay Motion.” See Exhibit 1 at p.11 (p.8 internally). A copy of
the Memorandum and Decision, dated November 15, 2021, is annexed hereto as Exhibit 2. Copies
of the Orders denying Defendant’s Motions Objecting to Claims, dated November 23, 2021 and
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December 2, 2021, of which Defendant failed to appeal, are also together annexed hereto as
Exhibit 3.
20. Specifically, the bankruptcy court held that “[Defendant’s] complaints regarding
the mortgage assignments did not evidence any type of fraud.” See Exhibit 1 at p.11 (p.8
internally).
21. Moreover, “[Defendant] has failed to identify one false statement or
misrepresentation made by [Plaintiff], upon which [Defendant] relied, that resulted in damages to
the [Defendant]. Those factual allegations of a misstatement are essential to establishing a claim
for fraud or negligent misrepresentation. Absent those allegations, [Defendant’s] fraud and
negligent misrepresentation claims must be dismissed.” See Exhibit 1 at p.29 (p.26 internally).
22. Furthermore, the bankruptcy court determined that since “[Defendant’s] []
pleadings mirror [Defendant’s] allegations in the Claims Objections … [including] alleged fraud
in the conduct of the foreclosure actions, the assignments of mortgages, and the filing and transfer
of the Proofs of Claim … [and] that none of Fay, Rushmore, Tiki, Dwelling or Truman had
standing to file the Proofs of Claim or the Lift-Stay Motion, … res judicata, otherwise known as
claim preclusion, bars the [Defendant] from asserting her fraud and negligent misrepresentation
claims … [because] the Court’s Memorandum and Decision [entered November 15, 2021]
considered and rejected [Defendant’s] claims that the mortgage assignments, foreclosure
judgments, Proofs of Claim, and claims transfers were fraudulent.” See Exhibit 1 at pp.37-38
(pp.34-35 internally).
23. Then, on March 17, 2022, Defendant Pro Se filed a document to NYSCEF entitled
“Jurisdictional Challenge with Affidavit,” (NYSCEF Doc. No. 7).
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24. On September 13, 2022, Defendant filed a Motion “vacating/reversing/staying the
auction of the subject premises; vacating/reversing the judgment of foreclosure entered on default
against Defendant; and dismissing this foreclosure matter against Defendant,” (Mot. Seq. No. 6),
which Plaintiff opposed, was fully submitted on October 12, 2022, and is pending a Decision. See
NYSCEF Doc. Nos. 31 and 36, et seq.
25. Subsequently, on October 19, 2022, Defendant Pro Se improperly filed her own
“Notice of Lis Pendens,” (the “Notice of Pendency”), solely reiterating her previously asserted
arguments in her previous submissions. See NYSCEF Doc. No. 51.
26. As a result, on October 27, 2022, Plaintiff filed a Motion to Cancel Defendant’s
frivolous Lis Pendens, (Mot. Seq. No. 7), (see NYSCEF Doc. No. 52, et seq.), which is fully
briefed and is pending a Decision from this Court.
27. In the interim, Defendant filed a purported Notice of Removal, dated December 5,
2022, (NYSCEF Doc. No. 73), an Amended Notice of Removal, dated December 6, 2022,
(NYSCEF Doc. No. 77), and supplemental documents for the Amended Notice of Removal on
December 7, 2022, (NYSCEF Doc. No. 80).
28. Then, upon adjudication of the removal, the federal court remanded this matter to
this Court by a Memorandum & Order by the Hon. Pamela K. Chen, U.S.D.C.-E.D.N.Y, dated
January 11, 2023. See NYSCEF Doc. No. 82.
ARGUMENT
I. THE JUDGMENT IS FINAL AS TO ALL LITIGATION AND CLAIMS.
29. It is well settled law that “a judgment of foreclosure and sale is final as to all
questions at issue between the parties and concludes all matters of defense which were or might
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have been litigated in the foreclosure action.” Long Island Sav. Bank, FSB v. Mihalios, 269 A.D.2d
502, 503 (2d Dept. 2000); SSJ Dev. of Sheepshead Bay I, LLC v. Amalgamated Bank, 128 A.D.3d
674 (2d Dept. 2015).
30. Here, a Judgment of Foreclosure and Sale was entered with the Queens County
Clerk’s Office on May 20, 2019, of which a copy was served upon Defendant with Notice of Entry,
dated July 26, 2019. See NYSCEF Doc. No. 60. Defendant did not file an appeal, and her time to
do so has long expired.
31. Accordingly, Defendant may not re-litigate her purported defenses challenging
Plaintiff’s standing, lack of capacity to sue and the Court’s jurisdiction.
II. DEFENDANT HAS FAILED TO ESTABLISH HER ENTITLEMENT TO VACATE
THE JUDGMENT OF FORECLOSURE AND SALE, PURSUANT TO CPLR §
5015(a)(3), BASED UPON ALLEGED FRAUD, WHICH IS BOTH
UNSUBSTANTIATED AND PRECLUDED BY RES JUDICATA.
32. Other than mere speculation and conjecture, Defendant has failed to provide this
Court with a scintilla of admissible evidence to substantiate her spurious claim that Plaintiff
allegedly engaged in any extrinsic or intrinsic3 “fraud, misrepresentation, or other misconduct,”
which would require the drastic sanction of vacatur of the Judgment of Forelcosure and Sale,
pursuant to CPLR § 5015(a)(3).
3
It should be noted that while Defendant states that she is claiming both extrinsic and intrinsic fraud, she fails to even
allege that she was defrauded in the origination of the loan (intrinsic fraud). Instead, she only alleges extrinsic fraud
with respect to the conduct of the foreclosure action. Nonetheless, to the extent that she may have alleged intrinsic
fraud, her application must also be denied because she failed to demonstrate a reasonable excuse for her default.
“Intrinsic fraud regards circumstances where the plaintiff’s underlying allegations are alleged to be fraudulent or false.
Where that is the case, the defendant moving to vacate a default must meet the standard two-pronged test for vacating
default generally—a reasonable excuse for the default and a potentially meritorious defense to the cause or causes of
action.” C5015:8 “Fraud or Other Misconduct, Paragraph 3,” Supp. Practice Commentaries to McKinney’s CPLR
Rule 5015. Relief from judgment or order, NY CPLR Rule 5015, by Hon. Mark C. Dillon (2021) (citing Bank of New
York Mellon Trust Company, N.A. v. Ross, 170 A.D.3d 931 (2d Dept. 2019)), (other citations omitted).
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33. In fact, other than Defendant’s mere speculation and conjecture, which is only
supported by her reference to proceedings in other jurisdictions that are not probative, Defendant
fails to substantiate her claims of fraud by any admissible evidence.
34. Indeed, as previously mentioned, the bankruptcy court already determined that with
respect to Defendant’s claims of “fraud in the conduct of the foreclosure actions, the assignments
of mortgages, and the filing and transfer of the Proofs of Claim … [and] that none of Fay,
Rushmore, Tiki, Dwelling or Truman had standing to file the Proofs of Claim or the Lift-Stay
Motion, … res judicata, otherwise known as claim preclusion, bars the [Defendant] from asserting
her fraud and negligent misrepresentation claims … [because] the Court’s Memorandum and
Decision [entered November 15, 2021] considered and rejected [Defendant’s] claims that the
mortgage assignments, foreclosure judgments, Proofs of Claim, and claims transfers were
fraudulent.” See Exhibit 1 at pp.37-38 (pp.34-35 internally).
35. Accordingly, Defendant has failed to prove that Plaintiff engaged in any alleged
fraud upon the Court by any admissible evidence, and therefore, her application to vacate the
Judgment of Foreclosure and Sale on this basis must be denied. Moreover, Defendant is
collaterally estopped from asserting these challenges, which are likewise barred by res judicata.
36. Furthermore, Defendant’s instant application, filed almost four (4) years after the
entry of the Judgment of Foreclosure and Sale, is woefully untimely. See Empire State
Conglomerates v. Mahbur, 105 A.D.3d 898 (2d Dept. 2013) (while there is no strict time limit
within which to move to vacate a default when the ground asserted is fraud, motions to vacate on
account of fraud must still be made within a reasonable time under the circumstances of the given
case).
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37. It is respectfully submitted that the instant motion is patently frivolous, and it must
be denied. Moreover, Plaintiff also respectfully submits that it has expended considerable time
and resources in opposing Defendant’s duplicative applications and Plaintiff should also be
awarded fees and costs for defending against this application.4 At minimum, this Court should
also bar Defendant Defendant from filing any further applications or notices in the action without
the prior consent of the Court, and also directing the Clerk of the Court not to accept any
subsequent submissions by Defendant without the prior approval of the Court
WHEREFORE, Plaintiff respectfully requests that the Court deny Defendant’s application
in its entirety, together with such other and further relief in favor of Plaintiff as the Court may
deem just and proper.
Dated: February 28, 2023
New York, New York
Respectfully submitted,
FRIEDMAN VARTOLO LLP
By: _________________________
Franklin K. Chiu, Esq.
85 Broad Street, Suite 501
New York, New York 10004
Telephone: (212) 471-5100
fchiu@friedmanvartolo.com
Attorneys for Plaintiff
TO: Ashmeen Modikhan
99-22 Magnolia Court, 1B
Ozone Park, NY 11417
Defendant Pro Se
4
Pursuant to 22 NYCRR 130, a court may impose sanctions or award costs to any party or attorney, for frivolous
conduct in a civil action or proceeding. See Shields v. Carbone, 99 A.D.3d 1100, 1101 (3d Dept. 2012); Citibank
(South Dakota) N.A. v. Coughlin, 274 A.D.2d 658 (3d Dept. 2000). Additionally, parties may be enjoined from further
litigation where they have been found to have engaged in frivolous conduct. See Fowler v. Conforti, 194 A.D.2d 394
(1st Dept. 1993); Martin-Trigona v. Capital Cities/ABC, Inc., 145 Misc 2d 405, 546 N.Y.S.2d 910 (Sup. Ct., New
York County 1989); Dimery v Ulster Savings Bank, 82 AD3d 1034 (2d Dept. 2011).
.
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Ashmeen Modikhan
87-10 149th Ave, Unit 5N
Howard Beach, NY 11414
Defendant Pro Se
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CERTIFICATE OF COMPLIANCE
(Uniform Civil Rules § 202.8-b(c))
Word Count: I certify pursuant to Uniform Civil Rules § 202.8-b that the total number of
words in the foregoing affidavit, affirmation, brief or memorandum of law, exclusive of the
caption, table of contents, table of authorities, and signature block, is 2,710 words, which complies
with the word count limit of 7,000 words (4,200 words on reply) as specified in Uniform Civil
Rules § 202.8-b(a).
Dated: February 28, 2023
New York, New York
Respectfully submitted,
FRIEDMAN VARTOLO LLP
By: _________________________
Franklin K. Chiu, Esq.
85 Broad Street, Suite 501
New York, New York 10004
Telephone: (212) 471-5100
fchiu@friedmanvartolo.com
Attorneys for Plaintiff
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Preview
FILED: QUEENS COUNTY CLERK 03/01/2023 11:02 AM INDEX NO. 705175/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/01/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS NATIONSTAR MORTGAGE LLC, Plaintiff, Index No. 705175/2021 -against- PLAINTIFF’S AFFIRMATION IN OPPOSITION TO DEFENDANTS’ ASHMEEN MODIKHAN; NEW YORK CITY MOTION TO VACATE TRANSIT ADJUDICTATION BUREAU; JUDGMENT OF FORECLOSURE MORTGAGE ELECTRONIC REGISTRATION (Mot. Seq. No. 8) SYSTEMS, INC.; COUNTRYWIDE BANK, FSB; MAGNOLIA COURT CONDOMINIUM Mortgaged Premises: ASSOCIATION, INC.; NEW YORK CITY 94-22 Magnolia Court, 1B ENVIRONMENTAL CONTROL BOARD; KEVIN Ozone Park, NY 11417 HOSEIN; LIAH HOSEIN, SBL#: 50-11544-1004 Defendants. Franklin K. Chiu, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, respectfully affirms the following under penalties of perjury and pursuant to CPLR § 2106: 1. I am an associate of Friedman Vartolo LLP, attorneys for Plaintiff’s assignee U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE OF DWELLING SERIES IV TRUST,1 (“Plaintiff”), in the within foreclosure action and, as such, I am fully familiar with the facts of this case and the proceedings. 2. I respectfully submit this Affirmation in Opposition to the application by Defendant ASHMEEN MODIKHAN, (“Defendant”), pursuant to CPLR § 5015(a)(3), to vacate the Judgment of Foreclosure and Sale, entered on May 20, 2019, which was served upon Defendant with Notice 1 See NYSCEF Doc. No. 84. 1 File No. 210338 1 of 12 FILED: QUEENS COUNTY CLERK 03/01/2023 11:02 AM INDEX NO. 705175/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/01/2023 of Entry on July 26, 2019, (see NYSCEF Doc. No. 60). Defendant did not file an appeal, and her time to do so has long expired. 3. Hence, the final judgment is final as to all questions at issue between the parties and concludes all matters of defense which were or might have been litigated in the foreclosure action. See Long Island Sav. Bank, FSB v. Mihalios, 269 A.D.2d 502, 503 (2d Dept. 2000); Tromba v. E. Fed. Sav. Bank, FSB, 148 A.D.3d 753, 754 (2d Dept. 2017) (“Here, the judgment of foreclosure and sale that was entered on the [] default in the foreclosure action encompassed all issues that were raised or could have been raised in that action”); New Horizons Inv'rs v. Marine Midland Bank, 248 A.D.2d 449 (2d Dept. 1998); Archibald v. Wells Fargo Bank, N.A., 166 A.D.3d 573, 573 (2d Dept. 2018). Therefore, Defendant’s belated challenges to Plaintiff’s standing, lack of capacity to sue and the Court’s jurisdiction are precluded as a matter of law. 4. Yet, regrettably, upon the federal court’s recent rejection of her frivolous and untimely attempt to remove this mortgage foreclosure action, (see NYSCEF Doc. No. 82), and while Plaintiff’s Motion to Discharge her frivolous Notice of Pendency, (Mot. Seq. No. 7), is also pending a Decision from this Court, Defendant has filed yet another frivolous and untimely application in her increasingly desperate efforts to unjustifiably delay the completion of this mortgage foreclosure action, which must be denied in its entirety because, inter alia, it is improperly pled, without any basis in fact or law, not supported by any admissible evidence whatsoever, and barred by res judicata. 5. Accordingly, in addition to denial of the instant application, Plaintiff respectfully submits that this Court should also exercise its inherent discretion and powers to bar Defendant from filing any further applications or notices in the action without the prior consent of the Court, 2 File No. 210338 2 of 12 FILED: QUEENS COUNTY CLERK 03/01/2023 11:02 AM INDEX NO. 705175/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/01/2023 and also directing the Clerk of the Court not to accept any subsequent submissions by Defendant without the prior approval of the Court. 6. Otherwise, in the absence of such an order, Defendant will most certainly continue her unjustifiable campaign to abuse the judicial process, which she admittedly describes as “unrelenting,” (see Affidavit of Ashmeen Modikhan, dated February 9, 2023, ¶21 (NYSCEF Doc. No. 85, p.8)), by continuing to engage in vexatious litigation for illegitimate purposes, which will significantly waste precious judicial resources. See Bartlett v. Tribeca Lending Corp., 192 A.D.3d 574, 575 (1st Dept. 2021) (“[g]iven plaintiff’s history of vexatious litigation, the motion court properly required him to obtain written court approval before filing or serving any litigation papers…”); DiSilvio v. Romanelli, 150 A.D.3d 1078, 1080 (2017) (“where there has been an abuse of judicial process, the court may enjoin a litigant from further actions or motion practice without prior written approval of the court”); Breytman v. Pinnacle Group, 110 A.D.3d 754, 755 (2d Dept. 2013) (“while public policy mandates free access to the courts, when a litigant is abusing the judicial process by harassing individuals solely out of ill will or spite, equity may enjoin such vexatious litigation”); Fowler v. Conforti, 194 A.D.2d 394 (1st Dept. 1993) (parties may be enjoined from further litigation where they have been found to have engaged in frivolous conduct); Dimery v Ulster Savings Bank, 82 A.D.3d 1034 (2d Dept. 2011); Martin- Trigona v. Capital Cities/ABC, Inc., 145 Misc. 2d 405, 546 N.Y.S.2d 910 (Sup. Ct., New York County 1989). RELEVANT FACTUAL AND PROCEDURAL BACKGROUND 7. On January 30, 2012, Plaintiff’s predecessor-in-interest commenced this mortgage foreclosure action involving a Note and Mortgage, dated April 24, 2007, upon real property located 3 File No. 210338 3 of 12 FILED: QUEENS COUNTY CLERK 03/01/2023 11:02 AM INDEX NO. 705175/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/01/2023 at 94-22 Magnolia Court, 1B, Ozone Park, NY 11417, (the “Mortgaged Premises”). See NYSCEF Doc. No. 54.2 8. On February 3, 2012, the original Plaintiff filed a Supplemental Summons and Amended Complaint. See NYSCEF Doc. No. 55. 9. On June 28, 2012, Defendant filed for Chapter 7 bankruptcy protection (12-44750, EDNY), upon which Defendant received a discharge on or about October 10, 2012. See NYSCEF Doc. No. 56. 10. On October 17, 2014, Defendant by counsel filed a Motion to Dismiss, (Mot. Seq. No. 1), which prior counsel opposed, and this Court ultimately denied by a Short Form Order, entered January 16, 2015. See NYSCEF Doc. No. 57. 11. On January 23, 2015, the original Plaintiff filed its successive Notice of Pendency of the within action. See NYSCEF Doc. No. 58. 12. After release from the Foreclosure Settlement Conference Part on September 30, 2015, prior counsel filed a Motion for Default Judgment and Order of Reference, (Mot. Seq. No. 2), on February 10, 2016, which was granted by the Court, over Defendant’s opposition, by a Decision and Order, dated September 9, 2016. See NYSCEF Doc. No. 59. 13. On January 25, 2018, Plaintiff filed its Motion for Judgment of Foreclosure and Sale, which was also granted by this Court, over Defendant’s opposition, by a Decision, dated May 30, 2018, upon which this Court granted Judgment of Foreclosure and Sale, entered on May 20, 2 Subsequently, on March 8, 2021, this matter was converted to electronic filing, and assigned the current 705175/2021 Index No. 4 File No. 210338 4 of 12 FILED: QUEENS COUNTY CLERK 03/01/2023 11:02 AM INDEX NO. 705175/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/01/2023 2019, of which a copy was served upon Defendant with Notice of Entry, dated July 26, 2019. See NYSCEF Doc. No. 60. Defendant did not file an appeal, and her time to do so has long expired. 14. On January 13, 2019, the original Plaintiff also filed another successive Notice of Pendency of the within action. See NYSCEF Doc. No. 61. 15. Then, on July 9, 2019, Defendant filed her second bankruptcy petition in the U.S. Bankruptcy Court – E.D.N.Y., Ch. 7 Case No. 19-44172; dismissed on August 26, 2019. 16. Still, on October 31, 2019, Defendant filed her third bankruptcy petition in the U.S. Bankruptcy Court – E.D.N.Y., Ch. 13 Case No. 19-46591, for which Plaintiff obtained relief from stay on November 21, 2021. See NYSCEF Doc. No. 62. 17. On December 1, 2020, Defendant filed a notarized Notice of Discharge of Attorney, which stated her intent to relieve her counsel of record and to proceed in the action pro se. See NYSCEF Doc. No. 63. 18. In Defendant’s third Bankruptcy Case, the bankruptcy court, inter alia, dismissed Defendant’s adversary proceeding on the same allegations of fraud against Plaintiff herein. See Memorandum Decision by the Hon. Jil Mazer-Marino, U.S.B.C.-E.D.N.Y., dated February 19, 2022, (the “Bankruptcy Court Decision”), of which a copy is annexed hereto as Exhibit 1. 19. As referenced in the Bankruptcy Court Decision, “[o]n November 15, 2021, the Court rendered a decision overruling all of [Defendant’s] objections, allowing [Plaintiff’s] Proofs of Claim, and granting the Lift-Stay Motion.” See Exhibit 1 at p.11 (p.8 internally). A copy of the Memorandum and Decision, dated November 15, 2021, is annexed hereto as Exhibit 2. Copies of the Orders denying Defendant’s Motions Objecting to Claims, dated November 23, 2021 and 5 File No. 210338 5 of 12 FILED: QUEENS COUNTY CLERK 03/01/2023 11:02 AM INDEX NO. 705175/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/01/2023 December 2, 2021, of which Defendant failed to appeal, are also together annexed hereto as Exhibit 3. 20. Specifically, the bankruptcy court held that “[Defendant’s] complaints regarding the mortgage assignments did not evidence any type of fraud.” See Exhibit 1 at p.11 (p.8 internally). 21. Moreover, “[Defendant] has failed to identify one false statement or misrepresentation made by [Plaintiff], upon which [Defendant] relied, that resulted in damages to the [Defendant]. Those factual allegations of a misstatement are essential to establishing a claim for fraud or negligent misrepresentation. Absent those allegations, [Defendant’s] fraud and negligent misrepresentation claims must be dismissed.” See Exhibit 1 at p.29 (p.26 internally). 22. Furthermore, the bankruptcy court determined that since “[Defendant’s] [] pleadings mirror [Defendant’s] allegations in the Claims Objections … [including] alleged fraud in the conduct of the foreclosure actions, the assignments of mortgages, and the filing and transfer of the Proofs of Claim … [and] that none of Fay, Rushmore, Tiki, Dwelling or Truman had standing to file the Proofs of Claim or the Lift-Stay Motion, … res judicata, otherwise known as claim preclusion, bars the [Defendant] from asserting her fraud and negligent misrepresentation claims … [because] the Court’s Memorandum and Decision [entered November 15, 2021] considered and rejected [Defendant’s] claims that the mortgage assignments, foreclosure judgments, Proofs of Claim, and claims transfers were fraudulent.” See Exhibit 1 at pp.37-38 (pp.34-35 internally). 23. Then, on March 17, 2022, Defendant Pro Se filed a document to NYSCEF entitled “Jurisdictional Challenge with Affidavit,” (NYSCEF Doc. No. 7). 6 File No. 210338 6 of 12 FILED: QUEENS COUNTY CLERK 03/01/2023 11:02 AM INDEX NO. 705175/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/01/2023 24. On September 13, 2022, Defendant filed a Motion “vacating/reversing/staying the auction of the subject premises; vacating/reversing the judgment of foreclosure entered on default against Defendant; and dismissing this foreclosure matter against Defendant,” (Mot. Seq. No. 6), which Plaintiff opposed, was fully submitted on October 12, 2022, and is pending a Decision. See NYSCEF Doc. Nos. 31 and 36, et seq. 25. Subsequently, on October 19, 2022, Defendant Pro Se improperly filed her own “Notice of Lis Pendens,” (the “Notice of Pendency”), solely reiterating her previously asserted arguments in her previous submissions. See NYSCEF Doc. No. 51. 26. As a result, on October 27, 2022, Plaintiff filed a Motion to Cancel Defendant’s frivolous Lis Pendens, (Mot. Seq. No. 7), (see NYSCEF Doc. No. 52, et seq.), which is fully briefed and is pending a Decision from this Court. 27. In the interim, Defendant filed a purported Notice of Removal, dated December 5, 2022, (NYSCEF Doc. No. 73), an Amended Notice of Removal, dated December 6, 2022, (NYSCEF Doc. No. 77), and supplemental documents for the Amended Notice of Removal on December 7, 2022, (NYSCEF Doc. No. 80). 28. Then, upon adjudication of the removal, the federal court remanded this matter to this Court by a Memorandum & Order by the Hon. Pamela K. Chen, U.S.D.C.-E.D.N.Y, dated January 11, 2023. See NYSCEF Doc. No. 82. ARGUMENT I. THE JUDGMENT IS FINAL AS TO ALL LITIGATION AND CLAIMS. 29. It is well settled law that “a judgment of foreclosure and sale is final as to all questions at issue between the parties and concludes all matters of defense which were or might 7 File No. 210338 7 of 12 FILED: QUEENS COUNTY CLERK 03/01/2023 11:02 AM INDEX NO. 705175/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/01/2023 have been litigated in the foreclosure action.” Long Island Sav. Bank, FSB v. Mihalios, 269 A.D.2d 502, 503 (2d Dept. 2000); SSJ Dev. of Sheepshead Bay I, LLC v. Amalgamated Bank, 128 A.D.3d 674 (2d Dept. 2015). 30. Here, a Judgment of Foreclosure and Sale was entered with the Queens County Clerk’s Office on May 20, 2019, of which a copy was served upon Defendant with Notice of Entry, dated July 26, 2019. See NYSCEF Doc. No. 60. Defendant did not file an appeal, and her time to do so has long expired. 31. Accordingly, Defendant may not re-litigate her purported defenses challenging Plaintiff’s standing, lack of capacity to sue and the Court’s jurisdiction. II. DEFENDANT HAS FAILED TO ESTABLISH HER ENTITLEMENT TO VACATE THE JUDGMENT OF FORECLOSURE AND SALE, PURSUANT TO CPLR § 5015(a)(3), BASED UPON ALLEGED FRAUD, WHICH IS BOTH UNSUBSTANTIATED AND PRECLUDED BY RES JUDICATA. 32. Other than mere speculation and conjecture, Defendant has failed to provide this Court with a scintilla of admissible evidence to substantiate her spurious claim that Plaintiff allegedly engaged in any extrinsic or intrinsic3 “fraud, misrepresentation, or other misconduct,” which would require the drastic sanction of vacatur of the Judgment of Forelcosure and Sale, pursuant to CPLR § 5015(a)(3). 3 It should be noted that while Defendant states that she is claiming both extrinsic and intrinsic fraud, she fails to even allege that she was defrauded in the origination of the loan (intrinsic fraud). Instead, she only alleges extrinsic fraud with respect to the conduct of the foreclosure action. Nonetheless, to the extent that she may have alleged intrinsic fraud, her application must also be denied because she failed to demonstrate a reasonable excuse for her default. “Intrinsic fraud regards circumstances where the plaintiff’s underlying allegations are alleged to be fraudulent or false. Where that is the case, the defendant moving to vacate a default must meet the standard two-pronged test for vacating default generally—a reasonable excuse for the default and a potentially meritorious defense to the cause or causes of action.” C5015:8 “Fraud or Other Misconduct, Paragraph 3,” Supp. Practice Commentaries to McKinney’s CPLR Rule 5015. Relief from judgment or order, NY CPLR Rule 5015, by Hon. Mark C. Dillon (2021) (citing Bank of New York Mellon Trust Company, N.A. v. Ross, 170 A.D.3d 931 (2d Dept. 2019)), (other citations omitted). 8 File No. 210338 8 of 12 FILED: QUEENS COUNTY CLERK 03/01/2023 11:02 AM INDEX NO. 705175/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/01/2023 33. In fact, other than Defendant’s mere speculation and conjecture, which is only supported by her reference to proceedings in other jurisdictions that are not probative, Defendant fails to substantiate her claims of fraud by any admissible evidence. 34. Indeed, as previously mentioned, the bankruptcy court already determined that with respect to Defendant’s claims of “fraud in the conduct of the foreclosure actions, the assignments of mortgages, and the filing and transfer of the Proofs of Claim … [and] that none of Fay, Rushmore, Tiki, Dwelling or Truman had standing to file the Proofs of Claim or the Lift-Stay Motion, … res judicata, otherwise known as claim preclusion, bars the [Defendant] from asserting her fraud and negligent misrepresentation claims … [because] the Court’s Memorandum and Decision [entered November 15, 2021] considered and rejected [Defendant’s] claims that the mortgage assignments, foreclosure judgments, Proofs of Claim, and claims transfers were fraudulent.” See Exhibit 1 at pp.37-38 (pp.34-35 internally). 35. Accordingly, Defendant has failed to prove that Plaintiff engaged in any alleged fraud upon the Court by any admissible evidence, and therefore, her application to vacate the Judgment of Foreclosure and Sale on this basis must be denied. Moreover, Defendant is collaterally estopped from asserting these challenges, which are likewise barred by res judicata. 36. Furthermore, Defendant’s instant application, filed almost four (4) years after the entry of the Judgment of Foreclosure and Sale, is woefully untimely. See Empire State Conglomerates v. Mahbur, 105 A.D.3d 898 (2d Dept. 2013) (while there is no strict time limit within which to move to vacate a default when the ground asserted is fraud, motions to vacate on account of fraud must still be made within a reasonable time under the circumstances of the given case). 9 File No. 210338 9 of 12 FILED: QUEENS COUNTY CLERK 03/01/2023 11:02 AM INDEX NO. 705175/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/01/2023 37. It is respectfully submitted that the instant motion is patently frivolous, and it must be denied. Moreover, Plaintiff also respectfully submits that it has expended considerable time and resources in opposing Defendant’s duplicative applications and Plaintiff should also be awarded fees and costs for defending against this application.4 At minimum, this Court should also bar Defendant Defendant from filing any further applications or notices in the action without the prior consent of the Court, and also directing the Clerk of the Court not to accept any subsequent submissions by Defendant without the prior approval of the Court WHEREFORE, Plaintiff respectfully requests that the Court deny Defendant’s application in its entirety, together with such other and further relief in favor of Plaintiff as the Court may deem just and proper. Dated: February 28, 2023 New York, New York Respectfully submitted, FRIEDMAN VARTOLO LLP By: _________________________ Franklin K. Chiu, Esq. 85 Broad Street, Suite 501 New York, New York 10004 Telephone: (212) 471-5100 fchiu@friedmanvartolo.com Attorneys for Plaintiff TO: Ashmeen Modikhan 99-22 Magnolia Court, 1B Ozone Park, NY 11417 Defendant Pro Se 4 Pursuant to 22 NYCRR 130, a court may impose sanctions or award costs to any party or attorney, for frivolous conduct in a civil action or proceeding. See Shields v. Carbone, 99 A.D.3d 1100, 1101 (3d Dept. 2012); Citibank (South Dakota) N.A. v. Coughlin, 274 A.D.2d 658 (3d Dept. 2000). Additionally, parties may be enjoined from further litigation where they have been found to have engaged in frivolous conduct. See Fowler v. Conforti, 194 A.D.2d 394 (1st Dept. 1993); Martin-Trigona v. Capital Cities/ABC, Inc., 145 Misc 2d 405, 546 N.Y.S.2d 910 (Sup. Ct., New York County 1989); Dimery v Ulster Savings Bank, 82 AD3d 1034 (2d Dept. 2011). . 10 File No. 210338 10 of 12 FILED: QUEENS COUNTY CLERK 03/01/2023 11:02 AM INDEX NO. 705175/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/01/2023 Ashmeen Modikhan 87-10 149th Ave, Unit 5N Howard Beach, NY 11414 Defendant Pro Se 11 File No. 210338 11 of 12 FILED: QUEENS COUNTY CLERK 03/01/2023 11:02 AM INDEX NO. 705175/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/01/2023 CERTIFICATE OF COMPLIANCE (Uniform Civil Rules § 202.8-b(c)) Word Count: I certify pursuant to Uniform Civil Rules § 202.8-b that the total number of words in the foregoing affidavit, affirmation, brief or memorandum of law, exclusive of the caption, table of contents, table of authorities, and signature block, is 2,710 words, which complies with the word count limit of 7,000 words (4,200 words on reply) as specified in Uniform Civil Rules § 202.8-b(a). Dated: February 28, 2023 New York, New York Respectfully submitted, FRIEDMAN VARTOLO LLP By: _________________________ Franklin K. Chiu, Esq. 85 Broad Street, Suite 501 New York, New York 10004 Telephone: (212) 471-5100 fchiu@friedmanvartolo.com Attorneys for Plaintiff 12 File No. 210338 12 of 12