Preview
FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015
NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-------------------------------------------------------------X In dex No. 508445/2015
THE BANK OF NEW YORK MELLON F/K/A THE
BANK OF NEW YORK AS INDENTURE TRUSTEE
ON BEHALF OF THE NOTEHOLDERS AND THE
NOTE INSURER OF ABFS MORTGAGE LOAN
TRUST 2000-4,
Plaintiff, AFFIRMATION IN
SUPPORT OF MOTION
FOR RECUSAL
- against -
THERESA BRODWITH, INDIVIDUALLY AND AS
ADMINISTRATRIX AND HEIR OF THE ESTATE
OF LEROY BRODWITH, et al.,
Defendant.
----------------------------------------------------------------X
JONATHAN DAVID BACHRACH, an attorney duly admitted to practice
in the State of New York, affirms as true under penalty of perjury:
1. I am JONATHAN DAVID BACHRACH, ESQ., attorney for Theresa
Brodwith and the Estate of Leroy Brodwith in the above-captioned action, and I am
fully familiar with all the facts and circumstances hereinbefore had.
2. This motion seeks an order:
(1) Requiring this Court to acknowledge and give effect to the February 10, 2021
Opinion of the Supreme Court of the State of New York, Appellate Division:
Second Judicial Department, rather than pretending no such order was made
or is binding.
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(2) Denying Court Attorney Joseph Etra the right to author any opinion herein or any
part of any such opinion despite his announced intention to do so.
(3) effecting the recusal of Joseph Etra from any role whatsoever herein, upon the
following grounds:
(a) Joseph Etra has an interest in this matter;
(b) that Joseph Etra appears to have had ex parte communications with
Plaintiff herein:
(c) that Joseph Etra may have improperly influenced the prior decision of
Judge Noach Dear:
(d) that Joseph Etre has announced that he intends not to abide by the prior
DECISION & ORDER of the Appellate Division in this matter;
(e) that Joseph Etre has announced that he intends not to abide by the prior
DECISION & ORDER of Justice Lawrence Knipel in this matter; and
(e) that Joseph Etra will not consider sanctioning the Plaintiff for making
material false allegations of fact herein in its motion papers herein which the
Appellate Division determined were false;
(3) ordering the deposition of Joseph Etre on the subject of any relationship or
communications on his part with attorneys for Plaintiff Bank or their
representatives.
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(4) effectuating the recusal of Judge Larry D Martin any role whatsoever herein,
upon the grounds:
A. That Judge Larry D Martin steadfastly refuses to acknowledge and give
effect to the February 10, 2021 Opinion of the Supreme Court of the State of
New York, Appellate Division: Second Judicial Department and is ignoring
that order.
B. that Judge Larry D Martin has surrendered his judicial function herein to
Joseph Etra and has signed his name to an opinion by Etra herein which are
manifestly contrary to the actual true facts of the matter, and
(5) granting Defendant such other and further relief as to this Court may seem just
and proper; and sanctions against Plaintiff for frivolous and racist conduct
throughout this litigation.
As additional relief, Defendant requests an order referring to the New York
State Department of Financial Services as well as to the Kings County District
Attorney the affidavit of Vanessa Giorgiani, swore to October 10, 2017, on account
of the perjurious statements there and the improper insurance practices ascribed
therein to Plaintiff.
- APPELLATE DIVISION RULED DEFENDANT DID NOT DEFAULT-
“Contrary to the court’s determination, the defendant did not default in
answering the complaint.” NYSCEF 135 Exhibit A
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But Judge Martin/Etra adamantly refuse to accept this order/decision and still argue
against it.
APPELLATE DIVISION ORDERED THAT
DEFENDANT SHOULD HAVE FULL DISCOVERY
The Appellate Division ruled and ordered:
CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter
material and necessary in the prosecution or defense of an action,
regardless of the burden of proof.” “A party is entitled to choose both
the discovery devices it wishes to use and the order in which to use
them” (Nimkoff v Central Park Plaza Assoc., LLC, 123 AD3d 679, 680
[internal quotation marks omitted]).
Here, the Supreme Court should have granted that branch
of the defendant’s motion which was pursuant to CPLR 3101
to direct disclosure.
BUT THE BANK, JUDGE MARTIN AND JOSEPH ETRA
ARE REFUSING TO GIVE EFFECT TO THE APP DIV’S RULING.!
1. The appearance has been created in this action that Dustin Mansoor, a
Bank attorney, convinced Joseph Etra to write an opinion for Judge Dear, RIP,
stating that Defendant had defaulted in answering. This claim was false. See
Appellate Division finding at NYSCEF 135.
2. What about this ruling of the App Div:
Here, the Supreme Court should have granted that branch of the
defendant’s motion which was pursuant to CPLR 3101 to direct
disclosure. NYSCEF 135
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Same thing. The Bank, Judge Martin and Joseph Etra have agreed that Ms.
Brodwith will not have discovery, despite the order of the Appellate Division;
3. It seems obvious that the Kings Supreme Foreclosure Department has
taken sides the Bank of New York, which has conducted itself in a racist manner
throughout this litigation. It may be that the intervention of the federal court may be
required for the Brodwith Family to get a fair hearing.
JOSEPH ETRA - “THE DEFAULT IN ANSWERING” CONDUIT
MUST BE BANNED FROM THIS ACTION
4. Mr. Etra was a court clerk of some kind to the late Judge Noach Dear.
5. When Defendant moved for discovery of the Bank, the matter came on
before Judge Dear's part, but he wasn't on the bench. It was as if Judge Dear had
given his robes to Etra to wear.
6. Indeed, Joseph Etra was handling motions. When Defendant's motion
came on, the Bank didn't appear.
7. As detailed further, Mr. Etra at first, put Defendant’s motion over for
second call.
8. When no bank attorney appeared, Mr. Etra said he knew the Bank's
attorney, Dustin Mansoor, and would go look around the courthouse for him.
9. But at around 12 noon or so, Mr. Etra said to this effect: "Well, since no
one from the Bank appeared, Plaintiff's motion will be granted on default".
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Note: The Bank never put in any papers or opposition to Defendant’s motion for
discovery. See NYSCEF 135
10. But Judge Dear, per Etra, fraudulently decided the motion essentially as
follows:
"Defendant defaulted in answering and thus is not entitled to
discovery" NYSCEF 117
But Defendant did not default- the default claim is a pure fraud and shows the Bank’s
anti-Black attitude.
11. Dustin Mansoor, the Bank’s attorney simply made up the “Defendant
Defaulted” lie and got Joseph Etra to write the “Defendant Defaulted” into Judge
Dear’s opinion.
12. How do we know that in reality Defendant did not default?
Because the Appellate Division said so:
Contrary to the court's determination, the defendant did not default in
answering the complaint" NYSCEF 135
The Appellate Division continued:
Moreover, the plaintiff failed to oppose the motion and never moved to
vacate its default; thus, "the court should not have raised the issue sua
sponte" NYSCEF 135
QUERY: A. Plaintiff failed to oppose the motion for discovery.
B. Judge Dear raised the fraudulent “Defendant Defaulted”.
scam "sua sponte".
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C. Whoever wrote the decision for Judge Dear setting forth "sua
sponte" the fake Defendant's Default fraud did so - at the ex parte
request of the Bank's attorneys
The conclusion is inescapable.
13. Judge Dear didn't come up with the Defendant's Default fraud by
himself. There were no opposition papers to read. Someone told him to put it in.
14. This misconduct cries out for this Honorable Court to investigate the
Defendant's Default fraud and how it got into Judge Dear's now- reversed decision.
15. This Court's and Mr. Etra's conduct constitutes a violation of
Defendant's civil rights.
SEE DEFENDANT'S UNCONTROVERTED LETTER
TO JOSEPH ETRA DETAILING HIS MISDEEDS AND
REQUESTING THAT HE RECUSE HIMSELF.
16. On January 18, 2023, Defendant sent the following email to Joseph Etra
and Bank counsel. Mr. Etra does not deny the allegations therein set forth.
PERSONAL AND CONFIDENTIAL - Bank v. Brodwith Motion
Conference January 12, 2023 Index 508445/2015 Wed, Jan 18, 2:23 PM
to jetra, lvalle, bcc: Anastasia
Counselor,
As you well know, I represent the Defendant Brodwith and the
Estate of Brodwith, owners of the property Bank of New York illegally
seeks to foreclose.
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At the motion conference on Jan. 12, 2023 herein, you concealed the
fact that you were personally involved with the litigation of this action
and have an interest in it.
In fact, your conduct as court attorney to the late Judge Dear herein was
brought to the attention of the Appellate Division in connection with the
apparent facilitation of sanctionable and illegal conduct of Plaintiff
herein, particularly Attorney Dustin Mansoor.
As detailed in Defendant's papers, you handled the calendar call
for Judge Dear on or about November 10, 2018 when Defendant moved
for discovery. I sat with you and you said we needed to wait to see if
Plaintiff Attorney Dustin Mansoor would arrive.
After about 30 minutes, when neither Mansoor or anyone else
from Bank of New York appeared, you stated that you were going to
look for Mansoor - and you left the courtroom. Much later, you returned
and said you could not find anyone for the Bank, so you would mark
Defendant's unopposed motion as "down as granted on default".
But in reality, it appears you subsequently marked the motion as "Fully
submitted"! This was regrettably false.
NYSCEF shows that Defendant's motion for discovery was filed 8-2-18.
(NYSCEF 90) THERE WERE NO FILINGS BY PLAINTIFF AFTER
THAT UNTIL 10-17 when Dustin Mansoor filed a Notice of Entry
relative to Judge Dear's decision denying Defendant's motion.
Judge Dear's wrongful decision was based on the false representation the
Bank made to him - ex parte - that Defendant had defaulted and
therefore was not entitled to discovery. (The App Div flatly rejected this
perjurious default claim) You knew that Plaintiff had defaulted on
Defendant's motion and never filed any opposition to Defendant's
motion! NYSCEF shows no
opposition papers filed on the motion.
Nonetheless, someone, apparently you, arranged for the Judge to issue
this false ruling based on a perjured claim of a default by Defendant:
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"Plaintiff met its burden, producing an affidavit of default and the note
and mortgage. Defendant makes no effort to vacate her default,focusing
solely on allegations that Plaintiff must have been renting out the
property(basedseeminglyonanargumentthatnoonewaspayingthemortgagebetween2003and2008defaultdateclaimedby
Plaintiff) - a contention that does not appear supported by any evidence. A party in
default is not entitled to discovery (see, for example, US Bank Natl. Assn. v
Williams, 153 AD3d 650 [2d Dept 2017])." (Order of Justice Noach Dear, J.S.C.,
dated 10/1/18)
This ruling was a completely fictional account which it appears you
made up solely to help the Bank, apparently at Dustin Mansoor's
request.
Since the Bank had filed no written opposition to the motion, the
appearance is strongly created that you communicated ex parte with the
Bank after their motion default, found out what the Bank wanted, and
wrote this false 10/1/18 decision for Judge Dear at the Bank's request.
Obviously, Black Lives DON'T Matter to you! How could you
write this "Defendant's default" decision when there had been no papers
submitted by the Bank on the motion?
The App Div reversed the false Defendant's default decision that you
apparently wrote for Judge Dear:
"Here, the Supreme Court should have granted that branch of the
defendant's motion which was pursuant to CPLR 3101 to direct
disclosure. Contrary to the court's determination, the defendant did not
default in answering the complaint (see generally Jeffers v Stein, 99
AD3d 970, 971).
Moreover, the plaintiff failed to oppose the motion and never
moved to vacate its default; thus, "the court should not have raised the
issue sua sponte" (Wells Fargo Bank,N.A. v Morales, 178 AD3d 881,
883; see Emigrant Mtge. Co., Inc v Fisher, 90 AD3d 823, 824-825).
The App Div found: "Moreover, plaintiff failed to oppose the motion...
Yet you - even though you yourself witnessed the Bank's default - didn't
record a default! Instead, you apparently marked the motion as "fully
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submitted!"
Why did you do that?
The App Div found: "the court should not have raised the issue
sua sponte".
Since there was no Bank opposition, how would Judge Dear
know to rule just what the Bank wanted? If all this weren't clear enough
about your determination to help the Bank of New York in this matter,
your statements at the motion conference on January 12 made it
pellucidly clear that you have a personal bias in favor of Attorney
Dustin Mansoor and the Bank and against Black Leroy Brodwith and his
successors.
After we discussed Mansoor's sanction-worthy behavior of lying in
court papers - particularly the perjurious allegation that Defendant had
defaulted in answering - you said: "Take it up with the Appellate
Division, I am not interested."
When the Bank's refusal to appear for deposition came up, I displayed
to you Judge Knipel's order dated 5-3-21 NYSCEF 137 requiring the
Bank to appear for deposition, you actually stated:
"That's just one of Knipel's form orders, it doesn't mean anything".
Next, I displayed the decision of the Appellate Division reversing your
denial of discovery for Defendant: The App Div said: CPLR 3101(a)
provides that "[t]here shall be full disclosure of all matter material and
necessary in the prosecution or defense of an action, regardless of the
burden of proof." "A party is entitled to choose both the discovery
devices it wishes to use and the order in which to use them" (Nimkoff
v Central Park Plaza Assoc., LLC, 123 AD3d 679, 680 [internal
quotation marks omitted]). NYSCEF 132
I asked you to set dates for deposition of the Bank and its witnesses as
per the Appellate Division decision: Your reply:
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"Well, this is a weird decision, I've never seen an App Div decision like
this. I don't know what it means. It doesn't entitle Defendant to
depositions".
In view of all the foregoing and the reasons summarized below,
Defendant and I believe your conduct indicates you are not and cannot
be impartial in this case:
1. You personally participated in the proceedings in the foreclosure
litigation wherein Defendant has been unfairly prejudiced.
2. You have a personal interest in vindicating the decisions of Judge
Dear (that you wrote) herein.
3. It appears that you have had ex parte communications with the Bank's
attorneys herein. It appears you have had some personal interactions
with the Bank and Dustin Mansoor or the Bank's other attorneys and are
unfairly prejudiced in the Bank's favor.
4. You have stated that you consider Judge Knipel's prior order
herein to be of no consequence and non-binding.
5. You indicated you do not feel bound by the ruling of the Appellate
Division herein. NYSCEF 135
Accordingly, we respectfully request that because you have a personal
bias or interest with respect to the matters involved herein, you
peacefully recuse yourself and let another attorney who was not
previously involved with this case handle your role for the Court herein.
Thank you for your courtesy and cooperation herein.
A copy of this letter has also been delivered to Justices Martin, Edwards
and Knipel.
WHY JUDGE MARTIN SHOULD RECUSE HIMSELF
17. In the Book of Esther, book of the Hebrew Bible and the Christian Old
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Testament, we read:
Chapter 3:10: And the king took his ring from his hand, and gave it
unto Haman the son of Hammedatha the Agagite, the Jews' enemy.
3:11 And the king said unto Haman, The silver is given to thee, the
people also, to do with them as it seemeth good to thee.
18. From the opinions herein of Judges Dear and Martin, it appears that
rather than actually author their own opinions, each “took off the ring from their
respective hands”, gave to Joseph Etra, having him write their opinions and
authorizing him “do to As seemeth good to thee” to the Defendants.
19. Using these judges “ring”, Etra participated in the Defendants’ Default
scam, and is trying to block Defendants’ from discovery and is seeking to discredit
the the Supreme Court of the State of New York, Appellate Division: Second Judicial
Department and is ignoring that order.
20. Judge Martin is also permitting Etra to protect Bank Attorney Dustin
Mansoor. Exactly why will eventually be the subject of an investigation.
MARTIN GAVE ETRA CARTE BLANCHE
21. Attached hereto is a February 16, 2023 decision signed by Judge Larry
Martin. No detailed analysis will appear here, because Defendants have appealed it
to the Second Department. But certain items are worth noting in regard to recusal.
22. It appears that the decision had no input from Judge Martin but was
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solely the work of Joseph Etra.
JUDGE MARTIN (ETRA) APPEALS THE APP DIV ORDER!
23. The decision starts off Judge Martin explaining in several paragraphs
that the decision of the Appellate Division: Second Judicial Department is wrong and
of no binding effect on this case. The Martin/Etra decision claims Defendants did
default!
24. Judge Martin holds the App Div’s order is merely advisory!
(The Martin-Etra decision takes Defendants to task for allegedly not acting
promptly at various junctures. Note, however, that Martin-Etra’s opposition to
Defendant’s appeal comes some two (2) years after it was submitted and decided!)
25. The second half of the decision proves that although Judge Martin
signed his name to the decision, he did not write it. The decision alleges at Page 5:
On the return date of Defendant's motions, her counsel was asked what
additional discovery he is seeking...
Plaintiffs counsel accurately noted that Defendant does not appear to
have requested depositions following the Appellate Division's order...
But Judge Martin never attended the motion conference he quotes from. In reality,
these allegations signed by Judge Martin are either fictional or the work of someone
else.
JUDGE MARTIN WASN’T THERE!
HE HAS NO PERSONAL KNOWLEDGE OF WHO SAID WHAT!
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26. Like Judge Dear, Judge Larry Martin has taken off his ring and told
Joseph Etra to “do to As seemeth good to thee” to Defendants.
27. It is respectfully submitted that Judge Martin having signed his name to
allegations as to which he has no personal knowledge, must recuse himself.
JUDGE MARTIN AND ETRA ARE PROTECTING MANSOOR
28. The Judge and Etra are protecting the Bank lawyer Dustin
Mansoor. It was he who gave Etra the “Defendants Defaulted” scam. No matter how
much Judge Martin and Etra now argue the App Div was wrong, its decision still
stands:
“Contrary to the court’s determination, the defendant did not
default in answering the complaint.” NYSCEF 135
But Mansoor and Etra and now Judge Martin, refuse to discuss sanctions against
Mansoor for the Defendants Defaulted scam. “Take it to the App Div” they rule.
29. But Mansoor and Etra planned and executed the Defendants’
Defaulted scam right here in Kings Supreme! The false, reversed decision was
obtained by illegal, sanctionable conduct right at 360 Adams.1
30. See the attached invoice that Mansoor and Etra forced Defendants
to incur - over $3,600 just in the cost of printing the appeal! That money was for the
1
It is true that Mansoor also committed perjury at the Appellate Division. But he and Etra
executed the Defendants Defaulted scam in Kings Supreme Court, necessitating Defendants’
appeal.
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appeal from Mansoor and Etra’s Defendants Defaulted scheme underlying Judge Dear
reversed decision, not from Mansoor lying in the Appellate Division. What about the
legal fees of reversing the faked Defendants Defaulted scam? Exhibit 1
31. It is so clear that Mansoor’s sanctionable behavior took place in Kings
Supreme that to rule it did not occur in Kings Supreme could be for the purpose of
shielding Mansoor, lest Mansoor point some fingers if sanctioned for his conduct
with Etra in the Defendants Default scam.
32. It is respectfully submitted that Judge Martin’s shielding Bank attorney
Dustin Mansoor from plainly well-deserved sanctions indicates a prejudice against
Defendants requiring recusal.
COURT RECORDS TAMPERED WITH
-FAKE NOTIFICATIONS, FAKE RECORDS-
33. On February 6, 2023, Defendants filed a proposed Order to Show Cause
for recusal of Joseph Etra.
34. On February 9, 2023, NYSCEF notified re Index Number: 508445/2015:
The following case which you have subscribed to in eTrack has been
updated. Changes from the last update are shown in red and are
annotated.
February 9, 2023 - Notice from NYSCEF:
Motions: Motion Number: 6
Date Filed: 03/21/2022
Filed By:
Relief Sought: Dismiss
Submit Date: 01/12/2023
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Answer Demanded: Yes
Status: Decided: 01/13/2023 - Information updated
Denied --- Information updated
Martin, Hon. Larry D. --- Information updated
Decision: Memorandum --- Information updated
Order Signed Date: 01/13/2023 --- Information updated
But the NYSCEF docket shows that no order was signed on January 13, 2023!
Moreover, the notice referred to above dated February 9, 2023 has been expunged
from NYSCEF notification system!???
35. Did NYSCEF notify the Brodwith Family of a decision that doesn't
exist?
36. It appears that if this decision exists, it is being hidden from the
Brodwiths.
IT APPEARS THE COURT RECORDS WERE TAMPERED WITH AGAIN:
37. The same February 9, 2023 NYSCEF notice continued:
Index Number: 508445/2015
The following case which you have subscribed to in eTrack has been
updated. Changes from the last update are shown in red and are
annotated.
Status: Decided: 01/13/2023 --- Information updated
Denied --- Information updated
Martin, Hon. Larry D. --- Information updated
Decision: Memorandum --- Information updated
Order Signed Date: 01/13/2023 --- Information updated
Motion Number: 5
Date Filed: 01/19/2022
Filed By:
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Relief Sought: Compel
Submit Date: 01/12/2023
Answer Demanded: No
Status: Decided: 01/13/2023 --- Information updated
Decided --- Information updated
Martin, Hon. Larry D.
Decision: Memorandum
Order Signed Date: 01/13/2023 Ex 4
But again, there was no such decision on January 13, 2023.
38. It appears from NYSCEF that Judge Martin and Joseph Etra either made
and withdrew decisions after announcing them, or somehow had the decision later
expunged, or are hiding decisions from the Brodwith family. Such conduct requires
that each be recused from all matter affecting the Brodwith Family.
39. It is respectfully submitted that the Brodwith Family has been treated
disgracefully by Kings Supreme, in particular, by Judge Martin, Joseph Etra, Dustin
Mansoor and all the Bank Lawyers.
RECUSAL AS A REAL ESTATE EXPERT
40. The Bank has offered to pay the Brodwiths $3,000 for their ownership
of the property which is now worth $700,000.
41. It is respectfully submitted that something is dreadfully wrong with how
the Brodwith Family's case has treated. The Bank, as it has historically, has here
treated the Brodwith Family as if Black Lives Don't Matter:
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"Here you Black folks, take $3,000 for your ownership of your
$700,000 home"!
Indeed, Judge Martin ruled that in his own personal experience in real estate, its
perfectly fair to offer Black folks $3,000 for a $700,000 residence.
42. The Brodwith Family respectfully submits that Judge Martin needs to be
recused so he can testify under oath as to his expertise in real estate values and the
facts he relied on in ruling $3,000 is a fair offer for the Brodwith’s $700,000 property.
BLACK LIVES DON'T MATTER TO BANK OF NEW YORK
43. The slogan "Black Lives Matter" was born out of the institutional racism
that lingers on inside the American justice system and in American society as well.
44. Many Americans were taken by surprise by the explosive and
sometimes violent response to the police murder of a black man in Minneapolis two
years ago.
45. But the widespread uprising of Black communities across the entire
country - far from Minneapolis - was stunning! Why were Black citizens all across
America rising up in burning anger?
46. Racist mistreatment toward Black Citizens pervades all walks of life-not
only in policing. The scandalous, racist treatment Plaintiff Bank of New York (and
now the Kings Foreclosure Department) has meted out to Leroy Brodwith and his
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estate, as set forth in this motion, sadly reflects the Bank's attitude that Black Lives
DON'T matter!
BACKGROUND OF BANK OF NEW YORK'S RACIST BEHAVIOR
47. In 2000, the Bank lent Leroy Brodwith $105,000.
48. Today, the Bank claims the Estate of Brodwith owes it nearly $700,000!
49. Leroy Brodwith (Leroy) was Defendant Theresa Brodwith's brother. He
lived at the mortgaged premises in question at 561 New Jersey Avenue, in Brooklyn
(the "Premises").
50. According to Plaintiff, on or about November 9, 2000, Leroy Brodwith
took out a mortgage loan in the amount of $105,000. (See Affidavit of Indebtedness,
NYSCEF 63)
51. LeRoy died on November 8, 2003.
52. Yet, the Bank did not default the dead man for five (5) years - Did the
Bank charge interest on the loan for all those years???? The Bank refuses to say.
53. Something is fishy. Indeed, it appears that Bank personnel rented out the
dead mortgagor's property for their own personal account(s)!
54. Indeed, it would appear the Plaintiff earned substantial revenue by
secretly renting out the deceased mortgagor 's premises to persons or parties unknown
- for five years! This can be seen from the Bank's own Affidavit of Indebtedness!
(NYSCEF 63)
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55. The Court has permitted the Bank to refuse to disclose to whom it
rented the decedent's property. Why?
56. The Bank refuses to disclose the amount of revenue it received from the
five years it rented out decedent's property for its own account.
57. The Bank refuses to disclose why it rented out the Decedent's property.
58. It is respectfully submitted that no computation of the amount due the
mortgage can be made without knowing how much revenue was paid to the Bank on
the mortgage between Borrower's 2003 death and the Bank's delayed 2008
declaration of default.
59. Yet, the Bank refuses to itemize its calculation as to why $$700,000 is
owed!
60. Plaintiff let 15 years elapse since Leroy's death and made money on the
dead man in four ways. Borrower's death was 11/2003 - this foreclosure was
commenced 12/2015!
61. First, Plaintiff is unconscionably seeking nearly $700,000 for a $99,426.
outstanding loan balance. From a dead black man, yet!
62. Second, Plaintiff, by trick and deception, ran up the interest balance in
this Mafia-like manner by pretending for 14 years - not to know the Borrower was
dead!
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63. Plaintiff intentionally sent its notices to the wrong addresses - despite
there being an Estate and an administrator.
64. Next, by bringing an expensive legal action seeking all the expenses
possible, when this proceeding was never necessary. The only beneficiaries of all the
expensive litigation are all the greedy palms of sundry lawyers, accountants and
others the Bank works with.
RACISM- Home "Inequality" Loans
65. It is likely that the unfair and illegal conduct described about is par for
Plaintiff's course, especially in the minority community.
66. A study co-authored by Robert Bartlett finds that lenders charge Latino
and African-American borrowers 7.9 and 3.6 basis points more for purchase and
refinance mortgages respectively - an aggregate $766 million per year in extra
interest.
67. The study shows that these results persist despite controlling for a
borrower's credit score and loan-to-value ratio.
68. It is respectfully submitted that this Court should insure the integrity of
the government-regulated lending industry and force discovery on this and other
lenders.
69. These are legitimate concerns. Depositions must be held to find out what
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took the Bank so long to commence foreclosure? Were Bank personnel renting the
deceased mortgagor's property for their friends for five years between 2003 and
2008? Its not like the Bank couldn't afford a couple of days of depositions.
70. Brodwith duly filed an answer to the summons and complaint. But the
Bank wanted the Judge to establish a non-existent"default" because the Bank's case
is corrupt - and cannot stand the light of depositions!
71. Had the Judge not wrongfully blocked depositions, The Bank would
have to drop the case, or settle it fairly. The Bank cannot stand discovery herein.
72. Indeed, the Bank's conduct in this case vindicates the attitude of Earl
Warren, late Chief Justice of the United States:
"I hate banks. They do nothing positive for anybody except take
care of themselves. They're first in with their fees and first out when
there's trouble. "
Here, a Bank gets off scot-free from its misconduct because a local Judge
sua sponte - finds an unidentified and non-existent "default in answering"
73. In summary, the Bank cheated Leroy Williams and his Estate and
Theresa Brodwith, individually and as Administrator of Leroy Brodwith Estate.
74. To hide misconduct and fraudulent behavior of the Bank, the Bank
engaged in a wrongful and corrupt course of conduct, possibly involving Joseph Etra
to arrange for Judge Dear to deny Leroy Williams and his Estate and Theresa
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Brodwith, individually and as Administrator of Leroy Brodwith Estate their lawful
day in court and to deprive them of their civil rights under the Constitution of the
United States of America.
CONCLUSION
75. Some 20 years ago, Leroy Brodwith took out a $105,000 mortgage.
Although he died soon after, THE BANK OF NEW YORK MELLON is trying to
cheat Mr. Brodwith's family on this mortgage for nearly $700,000! This is not justice.
76. As Martin Luther King, Jr., one of America's greatest leaders,
proclaimed:
"Justice denied anywhere, diminishes justice everywhere."
This Honorable Court should guarantee to Ms. Brodwith and the Brodwith Estate the
just treatment that the Constitution of the United States of America promises them.
77. According to Wikipedia, the Plaintiff Bank of New York has a reported
U.S.Total Equity of some $40.74 billion (2018) with $1.7 trillion in assets under
management; its employees number 51,300 (2018).
78. Defendant respectfully calls on this Honorable Court to put an end to
the financial oppression, lying, cheating and case-fixing that has come to characterize
Supreme Kings treatment of the Brodwith Family.
79. The undeniable truth: Joseph Etra and the Bank created the Defendants
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Defaulted fraud in order to defeat and cheat the Brodwith family:
"They defaulted in answering, so they lose!"
This was just a lie! There was no default! A Fraud! At 360 Adams Street!
THERE WAS NO DEFAULT!
80. Respectfully, its time for this Court to do justice!
Wherefore, Defendants-Appellants respectfully request this Court to make an
enter an order:
(1) Requiring this Court to acknowledge and give effect to the February 10,
2021 Opinion of the Supreme Court of the State of New York, Appellate Division:
Second Judicial Department, rather than pretending no such order was made or is
binding.
(2) Denying Court Attorney Joseph Etra the right to author any opinion herein
or any part of any such opinion despite his announced intention to do so.
(3) effecting the recusal of Joseph Etra from any role whatsoever herein, upon
the following grounds:
(a) Joseph Etra has an interest in this matter;
(b) that Joseph Etra appears to have had ex parte communications with
Plaintiff herein:
(c) that Joseph Etra may have improperly influenced the prior decision of
Judge Noach Dear:
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(d) that Joseph Etra has announced that he intends not to abide by the prior
DECISION & ORDER of the Appellate Division in this matter;
(e) that Joseph Etra has announced that he intends not to abide by the prior
DECISION & ORDER of Justice Lawrence Knipel in this matter; and
(e) that Joseph Etra will not consider sanctioning the Plaintiff for making
material false allegations of fact herein in its motion papers herein which the
Appellate Division determined were false;
(3) ordering the deposition of Joseph Etre on the subject of any relationship or
communications on his part with attorneys for Plaintiff Bank or their
representatives.
(4) effectuating the recusal of Judge Larry D Martin any role whatsoever herein,
upon the grounds:
A. That Judge Larry D Martin steadfastly refuses to acknowledge and give
effect to the February 10, 2021 Opinion of the Supreme Court of the State of
New York, Appellate Division: Second Judicial Department and is ignoring
that order.
B. That Judge Martin continues to insert into his decisions arguments he
would have made to the Appellate Division had he opposed Defendants’ appeal
of the phony Defendants Default scam.
Preview
FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------X In dex No. 508445/2015 THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK AS INDENTURE TRUSTEE ON BEHALF OF THE NOTEHOLDERS AND THE NOTE INSURER OF ABFS MORTGAGE LOAN TRUST 2000-4, Plaintiff, AFFIRMATION IN SUPPORT OF MOTION FOR RECUSAL - against - THERESA BRODWITH, INDIVIDUALLY AND AS ADMINISTRATRIX AND HEIR OF THE ESTATE OF LEROY BRODWITH, et al., Defendant. ----------------------------------------------------------------X JONATHAN DAVID BACHRACH, an attorney duly admitted to practice in the State of New York, affirms as true under penalty of perjury: 1. I am JONATHAN DAVID BACHRACH, ESQ., attorney for Theresa Brodwith and the Estate of Leroy Brodwith in the above-captioned action, and I am fully familiar with all the facts and circumstances hereinbefore had. 2. This motion seeks an order: (1) Requiring this Court to acknowledge and give effect to the February 10, 2021 Opinion of the Supreme Court of the State of New York, Appellate Division: Second Judicial Department, rather than pretending no such order was made or is binding. 1 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 (2) Denying Court Attorney Joseph Etra the right to author any opinion herein or any part of any such opinion despite his announced intention to do so. (3) effecting the recusal of Joseph Etra from any role whatsoever herein, upon the following grounds: (a) Joseph Etra has an interest in this matter; (b) that Joseph Etra appears to have had ex parte communications with Plaintiff herein: (c) that Joseph Etra may have improperly influenced the prior decision of Judge Noach Dear: (d) that Joseph Etre has announced that he intends not to abide by the prior DECISION & ORDER of the Appellate Division in this matter; (e) that Joseph Etre has announced that he intends not to abide by the prior DECISION & ORDER of Justice Lawrence Knipel in this matter; and (e) that Joseph Etra will not consider sanctioning the Plaintiff for making material false allegations of fact herein in its motion papers herein which the Appellate Division determined were false; (3) ordering the deposition of Joseph Etre on the subject of any relationship or communications on his part with attorneys for Plaintiff Bank or their representatives. -2- 2 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 (4) effectuating the recusal of Judge Larry D Martin any role whatsoever herein, upon the grounds: A. That Judge Larry D Martin steadfastly refuses to acknowledge and give effect to the February 10, 2021 Opinion of the Supreme Court of the State of New York, Appellate Division: Second Judicial Department and is ignoring that order. B. that Judge Larry D Martin has surrendered his judicial function herein to Joseph Etra and has signed his name to an opinion by Etra herein which are manifestly contrary to the actual true facts of the matter, and (5) granting Defendant such other and further relief as to this Court may seem just and proper; and sanctions against Plaintiff for frivolous and racist conduct throughout this litigation. As additional relief, Defendant requests an order referring to the New York State Department of Financial Services as well as to the Kings County District Attorney the affidavit of Vanessa Giorgiani, swore to October 10, 2017, on account of the perjurious statements there and the improper insurance practices ascribed therein to Plaintiff. - APPELLATE DIVISION RULED DEFENDANT DID NOT DEFAULT- “Contrary to the court’s determination, the defendant did not default in answering the complaint.” NYSCEF 135 Exhibit A -3- 3 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 But Judge Martin/Etra adamantly refuse to accept this order/decision and still argue against it. APPELLATE DIVISION ORDERED THAT DEFENDANT SHOULD HAVE FULL DISCOVERY The Appellate Division ruled and ordered: CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” “A party is entitled to choose both the discovery devices it wishes to use and the order in which to use them” (Nimkoff v Central Park Plaza Assoc., LLC, 123 AD3d 679, 680 [internal quotation marks omitted]). Here, the Supreme Court should have granted that branch of the defendant’s motion which was pursuant to CPLR 3101 to direct disclosure. BUT THE BANK, JUDGE MARTIN AND JOSEPH ETRA ARE REFUSING TO GIVE EFFECT TO THE APP DIV’S RULING.! 1. The appearance has been created in this action that Dustin Mansoor, a Bank attorney, convinced Joseph Etra to write an opinion for Judge Dear, RIP, stating that Defendant had defaulted in answering. This claim was false. See Appellate Division finding at NYSCEF 135. 2. What about this ruling of the App Div: Here, the Supreme Court should have granted that branch of the defendant’s motion which was pursuant to CPLR 3101 to direct disclosure. NYSCEF 135 -4- 4 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 Same thing. The Bank, Judge Martin and Joseph Etra have agreed that Ms. Brodwith will not have discovery, despite the order of the Appellate Division; 3. It seems obvious that the Kings Supreme Foreclosure Department has taken sides the Bank of New York, which has conducted itself in a racist manner throughout this litigation. It may be that the intervention of the federal court may be required for the Brodwith Family to get a fair hearing. JOSEPH ETRA - “THE DEFAULT IN ANSWERING” CONDUIT MUST BE BANNED FROM THIS ACTION 4. Mr. Etra was a court clerk of some kind to the late Judge Noach Dear. 5. When Defendant moved for discovery of the Bank, the matter came on before Judge Dear's part, but he wasn't on the bench. It was as if Judge Dear had given his robes to Etra to wear. 6. Indeed, Joseph Etra was handling motions. When Defendant's motion came on, the Bank didn't appear. 7. As detailed further, Mr. Etra at first, put Defendant’s motion over for second call. 8. When no bank attorney appeared, Mr. Etra said he knew the Bank's attorney, Dustin Mansoor, and would go look around the courthouse for him. 9. But at around 12 noon or so, Mr. Etra said to this effect: "Well, since no one from the Bank appeared, Plaintiff's motion will be granted on default". -5- 5 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 Note: The Bank never put in any papers or opposition to Defendant’s motion for discovery. See NYSCEF 135 10. But Judge Dear, per Etra, fraudulently decided the motion essentially as follows: "Defendant defaulted in answering and thus is not entitled to discovery" NYSCEF 117 But Defendant did not default- the default claim is a pure fraud and shows the Bank’s anti-Black attitude. 11. Dustin Mansoor, the Bank’s attorney simply made up the “Defendant Defaulted” lie and got Joseph Etra to write the “Defendant Defaulted” into Judge Dear’s opinion. 12. How do we know that in reality Defendant did not default? Because the Appellate Division said so: Contrary to the court's determination, the defendant did not default in answering the complaint" NYSCEF 135 The Appellate Division continued: Moreover, the plaintiff failed to oppose the motion and never moved to vacate its default; thus, "the court should not have raised the issue sua sponte" NYSCEF 135 QUERY: A. Plaintiff failed to oppose the motion for discovery. B. Judge Dear raised the fraudulent “Defendant Defaulted”. scam "sua sponte". -6- 6 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 C. Whoever wrote the decision for Judge Dear setting forth "sua sponte" the fake Defendant's Default fraud did so - at the ex parte request of the Bank's attorneys The conclusion is inescapable. 13. Judge Dear didn't come up with the Defendant's Default fraud by himself. There were no opposition papers to read. Someone told him to put it in. 14. This misconduct cries out for this Honorable Court to investigate the Defendant's Default fraud and how it got into Judge Dear's now- reversed decision. 15. This Court's and Mr. Etra's conduct constitutes a violation of Defendant's civil rights. SEE DEFENDANT'S UNCONTROVERTED LETTER TO JOSEPH ETRA DETAILING HIS MISDEEDS AND REQUESTING THAT HE RECUSE HIMSELF. 16. On January 18, 2023, Defendant sent the following email to Joseph Etra and Bank counsel. Mr. Etra does not deny the allegations therein set forth. PERSONAL AND CONFIDENTIAL - Bank v. Brodwith Motion Conference January 12, 2023 Index 508445/2015 Wed, Jan 18, 2:23 PM to jetra, lvalle, bcc: Anastasia Counselor, As you well know, I represent the Defendant Brodwith and the Estate of Brodwith, owners of the property Bank of New York illegally seeks to foreclose. -7- 7 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 At the motion conference on Jan. 12, 2023 herein, you concealed the fact that you were personally involved with the litigation of this action and have an interest in it. In fact, your conduct as court attorney to the late Judge Dear herein was brought to the attention of the Appellate Division in connection with the apparent facilitation of sanctionable and illegal conduct of Plaintiff herein, particularly Attorney Dustin Mansoor. As detailed in Defendant's papers, you handled the calendar call for Judge Dear on or about November 10, 2018 when Defendant moved for discovery. I sat with you and you said we needed to wait to see if Plaintiff Attorney Dustin Mansoor would arrive. After about 30 minutes, when neither Mansoor or anyone else from Bank of New York appeared, you stated that you were going to look for Mansoor - and you left the courtroom. Much later, you returned and said you could not find anyone for the Bank, so you would mark Defendant's unopposed motion as "down as granted on default". But in reality, it appears you subsequently marked the motion as "Fully submitted"! This was regrettably false. NYSCEF shows that Defendant's motion for discovery was filed 8-2-18. (NYSCEF 90) THERE WERE NO FILINGS BY PLAINTIFF AFTER THAT UNTIL 10-17 when Dustin Mansoor filed a Notice of Entry relative to Judge Dear's decision denying Defendant's motion. Judge Dear's wrongful decision was based on the false representation the Bank made to him - ex parte - that Defendant had defaulted and therefore was not entitled to discovery. (The App Div flatly rejected this perjurious default claim) You knew that Plaintiff had defaulted on Defendant's motion and never filed any opposition to Defendant's motion! NYSCEF shows no opposition papers filed on the motion. Nonetheless, someone, apparently you, arranged for the Judge to issue this false ruling based on a perjured claim of a default by Defendant: -8- 8 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 "Plaintiff met its burden, producing an affidavit of default and the note and mortgage. Defendant makes no effort to vacate her default,focusing solely on allegations that Plaintiff must have been renting out the property(basedseeminglyonanargumentthatnoonewaspayingthemortgagebetween2003and2008defaultdateclaimedby Plaintiff) - a contention that does not appear supported by any evidence. A party in default is not entitled to discovery (see, for example, US Bank Natl. Assn. v Williams, 153 AD3d 650 [2d Dept 2017])." (Order of Justice Noach Dear, J.S.C., dated 10/1/18) This ruling was a completely fictional account which it appears you made up solely to help the Bank, apparently at Dustin Mansoor's request. Since the Bank had filed no written opposition to the motion, the appearance is strongly created that you communicated ex parte with the Bank after their motion default, found out what the Bank wanted, and wrote this false 10/1/18 decision for Judge Dear at the Bank's request. Obviously, Black Lives DON'T Matter to you! How could you write this "Defendant's default" decision when there had been no papers submitted by the Bank on the motion? The App Div reversed the false Defendant's default decision that you apparently wrote for Judge Dear: "Here, the Supreme Court should have granted that branch of the defendant's motion which was pursuant to CPLR 3101 to direct disclosure. Contrary to the court's determination, the defendant did not default in answering the complaint (see generally Jeffers v Stein, 99 AD3d 970, 971). Moreover, the plaintiff failed to oppose the motion and never moved to vacate its default; thus, "the court should not have raised the issue sua sponte" (Wells Fargo Bank,N.A. v Morales, 178 AD3d 881, 883; see Emigrant Mtge. Co., Inc v Fisher, 90 AD3d 823, 824-825). The App Div found: "Moreover, plaintiff failed to oppose the motion... Yet you - even though you yourself witnessed the Bank's default - didn't record a default! Instead, you apparently marked the motion as "fully -9- 9 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 submitted!" Why did you do that? The App Div found: "the court should not have raised the issue sua sponte". Since there was no Bank opposition, how would Judge Dear know to rule just what the Bank wanted? If all this weren't clear enough about your determination to help the Bank of New York in this matter, your statements at the motion conference on January 12 made it pellucidly clear that you have a personal bias in favor of Attorney Dustin Mansoor and the Bank and against Black Leroy Brodwith and his successors. After we discussed Mansoor's sanction-worthy behavior of lying in court papers - particularly the perjurious allegation that Defendant had defaulted in answering - you said: "Take it up with the Appellate Division, I am not interested." When the Bank's refusal to appear for deposition came up, I displayed to you Judge Knipel's order dated 5-3-21 NYSCEF 137 requiring the Bank to appear for deposition, you actually stated: "That's just one of Knipel's form orders, it doesn't mean anything". Next, I displayed the decision of the Appellate Division reversing your denial of discovery for Defendant: The App Div said: CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." "A party is entitled to choose both the discovery devices it wishes to use and the order in which to use them" (Nimkoff v Central Park Plaza Assoc., LLC, 123 AD3d 679, 680 [internal quotation marks omitted]). NYSCEF 132 I asked you to set dates for deposition of the Bank and its witnesses as per the Appellate Division decision: Your reply: -10- 10 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 "Well, this is a weird decision, I've never seen an App Div decision like this. I don't know what it means. It doesn't entitle Defendant to depositions". In view of all the foregoing and the reasons summarized below, Defendant and I believe your conduct indicates you are not and cannot be impartial in this case: 1. You personally participated in the proceedings in the foreclosure litigation wherein Defendant has been unfairly prejudiced. 2. You have a personal interest in vindicating the decisions of Judge Dear (that you wrote) herein. 3. It appears that you have had ex parte communications with the Bank's attorneys herein. It appears you have had some personal interactions with the Bank and Dustin Mansoor or the Bank's other attorneys and are unfairly prejudiced in the Bank's favor. 4. You have stated that you consider Judge Knipel's prior order herein to be of no consequence and non-binding. 5. You indicated you do not feel bound by the ruling of the Appellate Division herein. NYSCEF 135 Accordingly, we respectfully request that because you have a personal bias or interest with respect to the matters involved herein, you peacefully recuse yourself and let another attorney who was not previously involved with this case handle your role for the Court herein. Thank you for your courtesy and cooperation herein. A copy of this letter has also been delivered to Justices Martin, Edwards and Knipel. WHY JUDGE MARTIN SHOULD RECUSE HIMSELF 17. In the Book of Esther, book of the Hebrew Bible and the Christian Old -11- 11 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 Testament, we read: Chapter 3:10: And the king took his ring from his hand, and gave it unto Haman the son of Hammedatha the Agagite, the Jews' enemy. 3:11 And the king said unto Haman, The silver is given to thee, the people also, to do with them as it seemeth good to thee. 18. From the opinions herein of Judges Dear and Martin, it appears that rather than actually author their own opinions, each “took off the ring from their respective hands”, gave to Joseph Etra, having him write their opinions and authorizing him “do to As seemeth good to thee” to the Defendants. 19. Using these judges “ring”, Etra participated in the Defendants’ Default scam, and is trying to block Defendants’ from discovery and is seeking to discredit the the Supreme Court of the State of New York, Appellate Division: Second Judicial Department and is ignoring that order. 20. Judge Martin is also permitting Etra to protect Bank Attorney Dustin Mansoor. Exactly why will eventually be the subject of an investigation. MARTIN GAVE ETRA CARTE BLANCHE 21. Attached hereto is a February 16, 2023 decision signed by Judge Larry Martin. No detailed analysis will appear here, because Defendants have appealed it to the Second Department. But certain items are worth noting in regard to recusal. 22. It appears that the decision had no input from Judge Martin but was -12- 12 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 solely the work of Joseph Etra. JUDGE MARTIN (ETRA) APPEALS THE APP DIV ORDER! 23. The decision starts off Judge Martin explaining in several paragraphs that the decision of the Appellate Division: Second Judicial Department is wrong and of no binding effect on this case. The Martin/Etra decision claims Defendants did default! 24. Judge Martin holds the App Div’s order is merely advisory! (The Martin-Etra decision takes Defendants to task for allegedly not acting promptly at various junctures. Note, however, that Martin-Etra’s opposition to Defendant’s appeal comes some two (2) years after it was submitted and decided!) 25. The second half of the decision proves that although Judge Martin signed his name to the decision, he did not write it. The decision alleges at Page 5: On the return date of Defendant's motions, her counsel was asked what additional discovery he is seeking... Plaintiffs counsel accurately noted that Defendant does not appear to have requested depositions following the Appellate Division's order... But Judge Martin never attended the motion conference he quotes from. In reality, these allegations signed by Judge Martin are either fictional or the work of someone else. JUDGE MARTIN WASN’T THERE! HE HAS NO PERSONAL KNOWLEDGE OF WHO SAID WHAT! -13- 13 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 26. Like Judge Dear, Judge Larry Martin has taken off his ring and told Joseph Etra to “do to As seemeth good to thee” to Defendants. 27. It is respectfully submitted that Judge Martin having signed his name to allegations as to which he has no personal knowledge, must recuse himself. JUDGE MARTIN AND ETRA ARE PROTECTING MANSOOR 28. The Judge and Etra are protecting the Bank lawyer Dustin Mansoor. It was he who gave Etra the “Defendants Defaulted” scam. No matter how much Judge Martin and Etra now argue the App Div was wrong, its decision still stands: “Contrary to the court’s determination, the defendant did not default in answering the complaint.” NYSCEF 135 But Mansoor and Etra and now Judge Martin, refuse to discuss sanctions against Mansoor for the Defendants Defaulted scam. “Take it to the App Div” they rule. 29. But Mansoor and Etra planned and executed the Defendants’ Defaulted scam right here in Kings Supreme! The false, reversed decision was obtained by illegal, sanctionable conduct right at 360 Adams.1 30. See the attached invoice that Mansoor and Etra forced Defendants to incur - over $3,600 just in the cost of printing the appeal! That money was for the 1 It is true that Mansoor also committed perjury at the Appellate Division. But he and Etra executed the Defendants Defaulted scam in Kings Supreme Court, necessitating Defendants’ appeal. -14- 14 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 appeal from Mansoor and Etra’s Defendants Defaulted scheme underlying Judge Dear reversed decision, not from Mansoor lying in the Appellate Division. What about the legal fees of reversing the faked Defendants Defaulted scam? Exhibit 1 31. It is so clear that Mansoor’s sanctionable behavior took place in Kings Supreme that to rule it did not occur in Kings Supreme could be for the purpose of shielding Mansoor, lest Mansoor point some fingers if sanctioned for his conduct with Etra in the Defendants Default scam. 32. It is respectfully submitted that Judge Martin’s shielding Bank attorney Dustin Mansoor from plainly well-deserved sanctions indicates a prejudice against Defendants requiring recusal. COURT RECORDS TAMPERED WITH -FAKE NOTIFICATIONS, FAKE RECORDS- 33. On February 6, 2023, Defendants filed a proposed Order to Show Cause for recusal of Joseph Etra. 34. On February 9, 2023, NYSCEF notified re Index Number: 508445/2015: The following case which you have subscribed to in eTrack has been updated. Changes from the last update are shown in red and are annotated. February 9, 2023 - Notice from NYSCEF: Motions: Motion Number: 6 Date Filed: 03/21/2022 Filed By: Relief Sought: Dismiss Submit Date: 01/12/2023 -15- 15 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 Answer Demanded: Yes Status: Decided: 01/13/2023 - Information updated Denied --- Information updated Martin, Hon. Larry D. --- Information updated Decision: Memorandum --- Information updated Order Signed Date: 01/13/2023 --- Information updated But the NYSCEF docket shows that no order was signed on January 13, 2023! Moreover, the notice referred to above dated February 9, 2023 has been expunged from NYSCEF notification system!??? 35. Did NYSCEF notify the Brodwith Family of a decision that doesn't exist? 36. It appears that if this decision exists, it is being hidden from the Brodwiths. IT APPEARS THE COURT RECORDS WERE TAMPERED WITH AGAIN: 37. The same February 9, 2023 NYSCEF notice continued: Index Number: 508445/2015 The following case which you have subscribed to in eTrack has been updated. Changes from the last update are shown in red and are annotated. Status: Decided: 01/13/2023 --- Information updated Denied --- Information updated Martin, Hon. Larry D. --- Information updated Decision: Memorandum --- Information updated Order Signed Date: 01/13/2023 --- Information updated Motion Number: 5 Date Filed: 01/19/2022 Filed By: -16- 16 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 Relief Sought: Compel Submit Date: 01/12/2023 Answer Demanded: No Status: Decided: 01/13/2023 --- Information updated Decided --- Information updated Martin, Hon. Larry D. Decision: Memorandum Order Signed Date: 01/13/2023 Ex 4 But again, there was no such decision on January 13, 2023. 38. It appears from NYSCEF that Judge Martin and Joseph Etra either made and withdrew decisions after announcing them, or somehow had the decision later expunged, or are hiding decisions from the Brodwith family. Such conduct requires that each be recused from all matter affecting the Brodwith Family. 39. It is respectfully submitted that the Brodwith Family has been treated disgracefully by Kings Supreme, in particular, by Judge Martin, Joseph Etra, Dustin Mansoor and all the Bank Lawyers. RECUSAL AS A REAL ESTATE EXPERT 40. The Bank has offered to pay the Brodwiths $3,000 for their ownership of the property which is now worth $700,000. 41. It is respectfully submitted that something is dreadfully wrong with how the Brodwith Family's case has treated. The Bank, as it has historically, has here treated the Brodwith Family as if Black Lives Don't Matter: -17- 17 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 "Here you Black folks, take $3,000 for your ownership of your $700,000 home"! Indeed, Judge Martin ruled that in his own personal experience in real estate, its perfectly fair to offer Black folks $3,000 for a $700,000 residence. 42. The Brodwith Family respectfully submits that Judge Martin needs to be recused so he can testify under oath as to his expertise in real estate values and the facts he relied on in ruling $3,000 is a fair offer for the Brodwith’s $700,000 property. BLACK LIVES DON'T MATTER TO BANK OF NEW YORK 43. The slogan "Black Lives Matter" was born out of the institutional racism that lingers on inside the American justice system and in American society as well. 44. Many Americans were taken by surprise by the explosive and sometimes violent response to the police murder of a black man in Minneapolis two years ago. 45. But the widespread uprising of Black communities across the entire country - far from Minneapolis - was stunning! Why were Black citizens all across America rising up in burning anger? 46. Racist mistreatment toward Black Citizens pervades all walks of life-not only in policing. The scandalous, racist treatment Plaintiff Bank of New York (and now the Kings Foreclosure Department) has meted out to Leroy Brodwith and his -18- 18 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 estate, as set forth in this motion, sadly reflects the Bank's attitude that Black Lives DON'T matter! BACKGROUND OF BANK OF NEW YORK'S RACIST BEHAVIOR 47. In 2000, the Bank lent Leroy Brodwith $105,000. 48. Today, the Bank claims the Estate of Brodwith owes it nearly $700,000! 49. Leroy Brodwith (Leroy) was Defendant Theresa Brodwith's brother. He lived at the mortgaged premises in question at 561 New Jersey Avenue, in Brooklyn (the "Premises"). 50. According to Plaintiff, on or about November 9, 2000, Leroy Brodwith took out a mortgage loan in the amount of $105,000. (See Affidavit of Indebtedness, NYSCEF 63) 51. LeRoy died on November 8, 2003. 52. Yet, the Bank did not default the dead man for five (5) years - Did the Bank charge interest on the loan for all those years???? The Bank refuses to say. 53. Something is fishy. Indeed, it appears that Bank personnel rented out the dead mortgagor's property for their own personal account(s)! 54. Indeed, it would appear the Plaintiff earned substantial revenue by secretly renting out the deceased mortgagor 's premises to persons or parties unknown - for five years! This can be seen from the Bank's own Affidavit of Indebtedness! (NYSCEF 63) -19- 19 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 55. The Court has permitted the Bank to refuse to disclose to whom it rented the decedent's property. Why? 56. The Bank refuses to disclose the amount of revenue it received from the five years it rented out decedent's property for its own account. 57. The Bank refuses to disclose why it rented out the Decedent's property. 58. It is respectfully submitted that no computation of the amount due the mortgage can be made without knowing how much revenue was paid to the Bank on the mortgage between Borrower's 2003 death and the Bank's delayed 2008 declaration of default. 59. Yet, the Bank refuses to itemize its calculation as to why $$700,000 is owed! 60. Plaintiff let 15 years elapse since Leroy's death and made money on the dead man in four ways. Borrower's death was 11/2003 - this foreclosure was commenced 12/2015! 61. First, Plaintiff is unconscionably seeking nearly $700,000 for a $99,426. outstanding loan balance. From a dead black man, yet! 62. Second, Plaintiff, by trick and deception, ran up the interest balance in this Mafia-like manner by pretending for 14 years - not to know the Borrower was dead! -20- 20 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 63. Plaintiff intentionally sent its notices to the wrong addresses - despite there being an Estate and an administrator. 64. Next, by bringing an expensive legal action seeking all the expenses possible, when this proceeding was never necessary. The only beneficiaries of all the expensive litigation are all the greedy palms of sundry lawyers, accountants and others the Bank works with. RACISM- Home "Inequality" Loans 65. It is likely that the unfair and illegal conduct described about is par for Plaintiff's course, especially in the minority community. 66. A study co-authored by Robert Bartlett finds that lenders charge Latino and African-American borrowers 7.9 and 3.6 basis points more for purchase and refinance mortgages respectively - an aggregate $766 million per year in extra interest. 67. The study shows that these results persist despite controlling for a borrower's credit score and loan-to-value ratio. 68. It is respectfully submitted that this Court should insure the integrity of the government-regulated lending industry and force discovery on this and other lenders. 69. These are legitimate concerns. Depositions must be held to find out what -21- 21 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 took the Bank so long to commence foreclosure? Were Bank personnel renting the deceased mortgagor's property for their friends for five years between 2003 and 2008? Its not like the Bank couldn't afford a couple of days of depositions. 70. Brodwith duly filed an answer to the summons and complaint. But the Bank wanted the Judge to establish a non-existent"default" because the Bank's case is corrupt - and cannot stand the light of depositions! 71. Had the Judge not wrongfully blocked depositions, The Bank would have to drop the case, or settle it fairly. The Bank cannot stand discovery herein. 72. Indeed, the Bank's conduct in this case vindicates the attitude of Earl Warren, late Chief Justice of the United States: "I hate banks. They do nothing positive for anybody except take care of themselves. They're first in with their fees and first out when there's trouble. " Here, a Bank gets off scot-free from its misconduct because a local Judge sua sponte - finds an unidentified and non-existent "default in answering" 73. In summary, the Bank cheated Leroy Williams and his Estate and Theresa Brodwith, individually and as Administrator of Leroy Brodwith Estate. 74. To hide misconduct and fraudulent behavior of the Bank, the Bank engaged in a wrongful and corrupt course of conduct, possibly involving Joseph Etra to arrange for Judge Dear to deny Leroy Williams and his Estate and Theresa -22- 22 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 Brodwith, individually and as Administrator of Leroy Brodwith Estate their lawful day in court and to deprive them of their civil rights under the Constitution of the United States of America. CONCLUSION 75. Some 20 years ago, Leroy Brodwith took out a $105,000 mortgage. Although he died soon after, THE BANK OF NEW YORK MELLON is trying to cheat Mr. Brodwith's family on this mortgage for nearly $700,000! This is not justice. 76. As Martin Luther King, Jr., one of America's greatest leaders, proclaimed: "Justice denied anywhere, diminishes justice everywhere." This Honorable Court should guarantee to Ms. Brodwith and the Brodwith Estate the just treatment that the Constitution of the United States of America promises them. 77. According to Wikipedia, the Plaintiff Bank of New York has a reported U.S.Total Equity of some $40.74 billion (2018) with $1.7 trillion in assets under management; its employees number 51,300 (2018). 78. Defendant respectfully calls on this Honorable Court to put an end to the financial oppression, lying, cheating and case-fixing that has come to characterize Supreme Kings treatment of the Brodwith Family. 79. The undeniable truth: Joseph Etra and the Bank created the Defendants -23- 23 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 Defaulted fraud in order to defeat and cheat the Brodwith family: "They defaulted in answering, so they lose!" This was just a lie! There was no default! A Fraud! At 360 Adams Street! THERE WAS NO DEFAULT! 80. Respectfully, its time for this Court to do justice! Wherefore, Defendants-Appellants respectfully request this Court to make an enter an order: (1) Requiring this Court to acknowledge and give effect to the February 10, 2021 Opinion of the Supreme Court of the State of New York, Appellate Division: Second Judicial Department, rather than pretending no such order was made or is binding. (2) Denying Court Attorney Joseph Etra the right to author any opinion herein or any part of any such opinion despite his announced intention to do so. (3) effecting the recusal of Joseph Etra from any role whatsoever herein, upon the following grounds: (a) Joseph Etra has an interest in this matter; (b) that Joseph Etra appears to have had ex parte communications with Plaintiff herein: (c) that Joseph Etra may have improperly influenced the prior decision of Judge Noach Dear: -24- 24 of 27 FILED: KINGS COUNTY CLERK 03/14/2023 07:32 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/14/2023 (d) that Joseph Etra has announced that he intends not to abide by the prior DECISION & ORDER of the Appellate Division in this matter; (e) that Joseph Etra has announced that he intends not to abide by the prior DECISION & ORDER of Justice Lawrence Knipel in this matter; and (e) that Joseph Etra will not consider sanctioning the Plaintiff for making material false allegations of fact herein in its motion papers herein which the Appellate Division determined were false; (3) ordering the deposition of Joseph Etre on the subject of any relationship or communications on his part with attorneys for Plaintiff Bank or their representatives. (4) effectuating the recusal of Judge Larry D Martin any role whatsoever herein, upon the grounds: A. That Judge Larry D Martin steadfastly refuses to acknowledge and give effect to the February 10, 2021 Opinion of the Supreme Court of the State of New York, Appellate Division: Second Judicial Department and is ignoring that order. B. That Judge Martin continues to insert into his decisions arguments he would have made to the Appellate Division had he opposed Defendants’ appeal of the phony Defendants Default scam.