Preview
SEQUENCENO.
At IAS Part _ of the Supreme Court of
the State of New York, held in and for
the County of Queens at the Courthouse
thereof, 88-11 Sutphin Blvd, Jamaica,
New York, of the _ day of __, 20____.
PRESENT, HON Maurice E. Muir
Justice of the Supreme Court
ASHMEEN MODIKHAN Index No. 706339/2015
Plaintiff,
v. ORDER TO SHOW CAUSE WITH TRO IN
GOLDEN TOUCH TRANSPORTATION OF CIVIL ACTION
NEW YORK, INC., et al.,
Defendant(s).
Upon reading and filing the affidavit of Ashmeen Modikhan sworn to on the / day of
// g//... , 2023 and upon the exhibits attached to the affidavit, and
1. Letter to Honorable Maurice Muir dated April 7, 2023 (unable to file) (Exhibit ("A")
2. Honorable Judge Eric Komitee's Order (Appeals Court) (Exhibit "B")
3. Appeal Brief Filed on January 13, 2023 (Exhibit "C")
4. Motion for Stay dated January 18, 2023 (unable to file in State Court) (Exhibit "D")
5. Retainer agreement in my possession("E")
6. Retainer agreement filed in Bankruptcy Court Eastern District (Exhibit "F")
7. Document filed on State Court with Matthew Maloney Signatures (Exhibit "G")
Queens Counts Clerk's Of f ice
Pasm 2972072
04/10/2023 9:26a
Cashier ZASHRAF Resister ¾ 4
Tr.3670734
$45.00
Documents Pas At Court E-f ile
706339/2015
OTSC
Total:
$45.00
Cash
$45.00
8. Termination of Frank Cassisi filed on September 16, 2022(Exhibit "H")
9. Trustee's Nisselson's "Answer to my Eastern District Appeal (Exhibit "I")
Let the Plaintiff show cause at the IAS Part, Room of this Court, to be held at the
Courthouse, 88-11 Sutphin Boulevard, Jamaica, NY 11435 /25-10 Court Square, Long Island
10"'
City, NY 11101 on the day of April, 2023, at 10:00 o'clock in the /pm or as soon as
counsel may be heard why an order should not be made for consent to remove Frank Cassisi,
Esq. as Plaintiff's counsel in this case and to deny Frank Cassisi's Motion for Substitution of
Plaintiff-with Plaintiff's Chapter 7 Trustee, Alan Nisselson in Chapter 7 Bankruptcy Case No:
(19-46591-jmm) in the US Bankruptcy Court Eastern District of New York., as the new Plaintiff.
I filed my Appeal Brief on January 13, 2023(Case No: 22-cv-06434-EK) of the rulings of Judge
Jil Mazer-Marino in my Chapter 7 case. In the event the Appeal is successful, it would grant my
original motion to withdraw from the Chapter 7 proceedings and immediately remove Nisselson
as trustee, and make hiring of my former attorney Frank Cassisi null and void. At the very least
this Honorable Court should stay proceedings. Should my appeal be succeed, I would also be
able to terminate Cassisi for the second time, and proceed with my personal injury case to a jury
trial. In other words if there is no Chapter 7 proceeding, there is no trustee (Nisselson) and there
is no counsel for Nisselson (Cassisi). In any case, Cassisi should be disqualified as an officer of
this Honorable Court for having filed a forged retainer agreement in the Eastern District, as part
of the process for him to represent the trustee Nisselson, which is a criminal offense. The
agreement"
purported "retainer remains on the court docket. In conducting additional
investigation a newspaper reporter has also discovered that signatures attributed to Cassisi's
former associates, Matthew Maloney, on various documents filed in the State Court, may have
been forged since, at least six of them don't resemble each other- a matter which I hope this
2
Honorable Court will also investigate. I have referred the matter of the forged "retainer
agreement"
in the Eastern District to the Department of Justice. It is for these reason outlined
that Cassisi's Motion to Substitute Plaintiff and edit caption should be denied. At least it is
premature, pending outcome of my appeal on the decision in the Eastern District which decision
allowed Cassisi to become trustee Nisselson counsel in the first place.
Ashmeen Modikhan, the Plaintiff, should have such other and further relief as may be |
just, proper or equitable.
Pending the hearing and determination of this motion is ORDERED that Frank Cassisi is
terminated as counsel for the plaintiff and his motion to substitute plaintiff and edit caption is
also denied.
Sufficient cause appearing therefore, let personal service of a copy of this order, and the
other papers upon which this order is granted, upon the defendants by on or
before the day of , 2023, be deemed good and sufficient. An affidavit
or other proof of service shall be presented to this Court on the return date directed in the second
paragraph of this order.
ENTER
JSC
3
Ashmeen Modikhan
94-22 Magnolia Court, Unit IB
Ozone Park, NY 11417
Email: aakl123@aol.com
April 7, 2023
Hon. Maurice E. Muir
2510 Court Square
Long Island City, NY 11101-4335
Email: QSCPart42@nycourts.gov
Re: STAY OF PROCEEDINGS
(Modikhan v. Golden Touch, et al., Case No. 706339/2015)
Respectfully,
I am the Plaintiff in the referenced case. This letter serves as my humble request for you to address
my need for a stay of the proceedings in the said case.
I write this letter because my former attorney in this case, Frank Cassisi, was hired by the Trustee in
my Bankruptcy case at the United States Bank.ruptcy Court, Eastern District of New York, (Case No.
19-46591-jmm). Ever since the Trustee retained my former attorney, the Trustee has been seeking to
take over the referenced case.
Please note that I filed an Appeal at the United States District Court, Eastern District of New York
(Case No. 22-cv-06434-EK), challenging the decisions of the Court. The Appeal concerns my
application to withdraw the Bankruptcy case. The Appeal also raised well-documented cases of fraud
in the case including: the filing of false proofs of claim which legally led the court to recognize the
creditors as parties of interest; the filing of a forged retainer agreement by Cassisi, which remains on
the docket in the Eastern District.
Therefore, the decision issued by the Appeal Court would directly affect this case. Notably, the
Trustee can only claim to represent me if there 1s an ongoing .Bankruptcy case. If the Appeal Court
grants my appeal, the Trustee will have no standing to represent me in this case.
In light of the foregoing, I previously sought to file a Motion to Stay the Proceedings in this case
pursuant to N.Y. C.P.L.R. Law § 2201. However, the clerk refused to accept my motion because my
former attorney Frank Cassisi has not yet removed himself from this case.
I am therefore respectfully requesting your Honor to consider my request to stay this matter for the
foresaid reason(s). In the event this matter is not stayed, I am prone to suffer disastrously since the
Trustee would unjustly take over my case even though there is a pending appeal whose decision may
instantly remove their standing to represent me in this case.
Finally, a Stay would allow the authorities to investigate the forged retainer agreement filed by
Cassisi in the Bankruptcy court, which I understand is a criminal offense and I pray the State Supreme
Court will take seriously. I have also referred the Cassisi matter to the Department of Justice. The
attached newspaper article and copy of the letter I sent to the Department of Justice elaborates.
I am preparing to also file an emergency order to show case on Monday 10, 2023. I have already
notified Frank Cassisi via email.
I have attached a copy of the M.otion for Stay that I tried to file in this Court on January 18, 2023.
Respectfully,
úshmeen Modil h n
Cc:
Lewis Brisbois (Attorneys for Defendant)
naomi.skura@lewisbrisbous.com
Frank J. Cassisi (Plaintiff's former attorney)
fcassisi@ccpclaw.net
Tim Tenke
ttenke@ccpclaw.net
Alan Nisselson (Bankruptcy Trustee)
anisselson@windelsmarz.com
Honorable Marguerite Grays
QSCOart4( nycourts.gov
TSP@nycourts.gov
efox ----r-¬
U.S. District Court
Eastern District of New York
Notice of Electronic Filing
The following transaction was entered on 12/14/2022 at 9:59 AM EST and filed on 12/13/2022
Case Name: Modikhan v. Aronow et al
Case Number: 1:22-cv-06434-EK
Filer:
Document Numbeir:9
Docket Text:
Notice of Bankruptcy Record Received. Second Transmission of Additional Record on Appeal
to District Court. Notice to all parties, in accordance with Federal Rule of Bankruptcy
- been received or-is available electronically.
Procedure 8010(b)(3); that the record has Parties
shall now follow briefing schedule as set forth in Federal Rule of Bankruptcy Procedure 8018.
Specifically, appellant must serve and file a brief within 30 days of this notice, the appellee
must serve and file a brief within 30 days after service of the appellants brief, and the
appellant may serve and file a reply brief within 14 days after service of the appellees brief, but
a reply brief must be filed at least 7 days before scheduled argument. (Attachments: # (1) Part
2, # (2) Part 3, # (3) Part 4, # (4) Part 5, # (5) Part 6, # (6) Trans of Add Rec on Appeal (BK, # (7)
Trans of Add Rec on Appeal (BK: Notice Recipients) (copy of NEF mailed to pro se appellant)
(TL)
1:22-ev-06434-EK Notice has been electronically mailed to:
. .
Marianne DeRosa derosa@chl3mdr.com
. .
Frank J. Cassisi fcassisi@cepclaw.net
Matthew Maloney mmaloney@sjdfirm.com, yquesada@sjdfirm.com
Alan Nisselson anisselson@windelsmarx.com
Krista M. Preuss kristap@chl3mdr.com
Jonathan M. Robbin jonathan.robbin@jrobbinlaw.com, teresa.maldonado@jrobbinlaw.com
Darren Arthur Aronow darren@dalawpe.com, 1182942420@filings.docketbird.com,
Amanda.B@aronowlaw.com, Dennis.M@AronowLaw.com, aronowlaw@aol.com, jessica.m@aronowlaw.com
Andrea Marie Roberts andrea.roberts@blankrome.com, edocketing@blankrome.com
Edmund B. Troya etroya@windelsmarx.com, etroya@gmail.com
Jacquelyn Alena Dicicco jacquelyn.dicicco@jrobbinlaw.com, teresa.maldonado@jrobbinlaw.com
Aleksandra Krasimirova Fugate afugate@woodsoviatt.com
. .
1 of 3 9:59 A
12/14/2022,
https://nyed-ecf.sso.den/cgi-bin/Dispatch.pl?10250785217422
Nicholas John Bebirian nbebirian@silvermanacampora.com
Hanin R Shadood hanin.s@aronowlaw.com, darren@dalawpc.com
Katherine Heidbrink kheidbrink@ecf.courtdrive.com
Marie Theresa Nicholson mnicholson@grosspolowy.com
1:22-cv-06434-EK Notice will not be electronically mailed to:
Ashmeen Modikhan
94-22 Magnolia Court
Unit IB
Ozone Park, NY 11417
.... -
.Marylou Martin
Office of U.S. Trustee - Region 2
U.S. Federal Office Building
201 Varick Street
Ste. 1006
New York, NY 10014
The following document(s) are associated with this transaction:
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Original filename:n/a
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Electronic document Stamp:
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] [78d267d6d9b6c8e0d83af9e5f5dee2c74bc1d9967b41b89adb4689cc94197123e53
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Electronic document Stamp:
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Electronic document Stamp:
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· -
Document-description Trans of Add·Rec on Appeal (BK:-Notice Recipients
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Electronic document Stamp:
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of 3 12/14/2022, 9:59 AM
EXHIBIT
No: 22-cv-06434-EK
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ASHMEEN MODIKHAN,
Appellant (Debtor),
v.
DARREN ARONOW, ESQ., HANIN R. SHADOOD,
COURTNEY R. WILLIAMS, ESQ., FAY SERVICING
LLC, RUSHMORE LOAN MANAGEMENT SERVICES,
LLC. MARIANNE DEROSA et al,
Appellees.
Appeal from the United States Bankruptcy Court, Eastern District of New York
Case No. 19-46591-jmm
APPEAL BRIEF
Ashmeen Modikhan
94-22 Magnolia Court, Unit 1B
Ozone Park, NY 11417
Appellant, in pro per
TABLE OF CONTENTS
TABLE OF CONTENTS..........................................................................................1
TABLE OF AUTHORITIES.....................................................................................3
JURISDICTIONAL STATEMENT..........................................................................5
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW.............................5
STATEMENT OF THE CASE.................................................................................6
SUMMARY OF THE ARGUMENT......................................................................15
THE APPLICABLE STADARD OF REVIEW.....................................................16
ARGUMENTS........................................................................................................17
A. The Trial Court failed to address the concern that the Proofs of Claim were
false.......................................................................................................................17
B. The Trial Court abused its discretion when it failed to address the $63,000
that was entered in the schedule falsely; the Court also failed to order an
accounting 22
C. The Trial Court failed to address the Trustee's breach of fiduciary duty .....25
D. Appellant is entitled to withdraw the case..................................................... 27
E. The Trial Court erred when it failed to consider the fraud in the foreclosure
proceeding(s) in state court..................................................................................28
F. There was a conflict of interest......................................................................29
G. The Trustee unlawfully and/or unjustly increased fees.................................33
t
1
CONCLUSION .................................................
CERTIFICATE OF COMPLIANCE ....................................·········.····....................37
2
TABLE OF AUTHORITIES
Cases
In re C. Keffas & Son Florist, Inc., 240 B.R. 466 (Bankr. E.D.N.Y. 1999)...........23
In re C. Keffas Son Florist, Inc., 240 B.R. 466 (Bankr. E.D.N.Y. 1999)...............24
In re Isaacson, 478 B.R. 763, 792 (Bankr.E.D.Va.2012)....................................... 15
In re Salander-O'Reilly Galleries, LLC, 475 B.R. 9, 19 (S.D.N.Y. 2012).............20
Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928)............................................29
Merchants Bank v. Goodyear, 228 B.R. 87, 880 (2d Cir.2003).............................14
Overbaugh v. Household Bank N.A. ( In re Overbaugh ), 559 F.3d 125, 129 (2d
Cir.2009)............................................................................................................... 14
Parmalat Capital Fin. Ltd. v. Bank of Am. Corp., 639 F.3d 572, 580 (2d Cir.2011)
.............................................................................................................................. 14
Santa Bosa Mall, LLC v. Sears Holdings Corp., No. 20-CV-03923, 2021 WL
4429507, at *2 (S.D.N.Y. Sept. 27, 2021)...........................................................19
Scheidelman v. Henderson (In re Henderson), 423 B.R. 598, 619
(Bankr.N.D.N.Y.2010).........................................................................................15
United States ex rel. Grubea v. Rosicki, Rosicki & Assocs., 12-cv-7199...............25
United States v. Levy, 25 F.3d 146, 153 (2d Cir. 1994)..........................................26
Statutes
11 U.S. Code § 707(b)(1)........................................................................................24
3
11 U.S.C. 727 ........................................................................................ 14
11 USC. 704 1 & ........................................................................................... 22
28 U.S. 158 .......................................................................................... 4
UCC §§ 3-104 and 3-804 ........................................................................................ 25
Other Authorities
6 Collier on Bankruptcy, (15th Ed. Revised), ¶ 704.02[3] at 704-12..................... 23
Rules
. R.
dFe Bankr. P. 8 13 ............................................................................................ 14
Rule 1.7 of the Model Rules of Professional Conduct............................................ 26
JURISDICTIONAL STATEMENT
Appellant ASHMEEN MODIKHAN hereby appeals the order issued by
Judge Jill Mazer-Marino on August 25, 2022 and September 1, 2022 (hereinafter
"order"), pursuant to 28 U.S. Code § 158(a)(3). Notably, the orders are an
interlocutory order issued by a bankruptcy judge of the United States Bankruptcy
Court, Eastern District of New York. Further, Appellant files this Appeal in the
judicial district of the Trial Court.
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1. WHETHER THE TRIAL COURT FAILED TO ADDRESS THE
CONCERN THAT THE PROOFS OF CLAIM WERE FALSE
2. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
FAILED TO ADDRESS THE $63,000 THAT WAS ENTERED IN THE
SCHEDULE FALSELY; THE COURT ALSO FAILED TO ORDER AN
ACCOUNTING
3. WHETHER THE TRIAL COURT FAILED TO ADDRESS THE
TRUSTEE'S BREACH OF FIDUCIARY DUTY
4. WHETHER APPELLANT IS ENTITLED TO WITHDRAW THE CASE
5. WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO
CONSIDER THE FRAUD IN THE FORECLOSURE PROCEEDING (S)
6. WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO
ADDRESS THE CONFLICT OF INTEREST IN THE CASE
7. WHETHER THE TRIAL COURT ERRED IN FAILING TO ADDRESS
THE TRUSTEE'S INCREASE OF FEES
STATEMENT OF THE CASE
On or about June 28, 2012, the Appellant, through her attorney,
commenced a case under Chapter 7 of the Bankruptcy Code (the "First
Bankruptcy Case") by filing a voluntary petition for relief with the Clerk of the
US Bankruptcy Court for the Eastern District of New York). In the case,
Appellant filed Schedule A which disclosed her fee simple ownership of the
Investment Property and the Residential Property. She also filed a Schedule of
Creditors Holding Secured Claims, listed BAC Home Loans Servicing LP as a
secured creditor with claims secured by mortgages on the Residential Property
and the Investment Property. BAC Home Loans Servicing, LP was not the
originating lender for either property. It was stated in the Appellant's Statement
of Intention she would retain the properties and enter into a loan modification
with Bank of America for the Residential Property. On October 10, 2012, the
Case."
Appellant was granted a discharge in the "First Bankruptcy The Appellant
abided her intentions filed with the court by attempting to modify her loan .
by
Un re Modikhan, Case No. 12-44750 (Bankr. E.D.N.Y), ECF No. 1
6
with Bank of America with resistance by the company. A loan modification was
never completed due to the resistance of Bank of America.
The MERS Identification Number (MIN) 1000157-0005860385-9 located on
both the subject mortgage and note for the Residential Property denotes in MERS
database that Bank of America, NA is the servicer of the loan for the investor,
Fannie Mae.
On October 11, 2016, Fannie Mae announced a Non-Performing Loan Sale
FNMA 2016 NPL5. On November 10, 2016, FNMA announced that MTGLQ
Investors, LP (Goldman Sachs) won the bid and expected the deal to close on
December 23, 2016.
On January 20, 2017, MTGLQ Investors, L.P. sent a Notice of
Assignment, Sale or Transfer of Ownership of Mortgage Loan (15 U.S.C. §
1641(g)) to the Appellant's then foreclosure attorney. This letter states that
MTGLQ Investors, L.P. had purchased the Appellant's mortgage loan on
December 22, 2016, and Nationstar would be the Mortgage Loan Servicer.
On Februar
Preview
SEQUENCENO. At IAS Part _ of the Supreme Court of the State of New York, held in and for the County of Queens at the Courthouse thereof, 88-11 Sutphin Blvd, Jamaica, New York, of the _ day of __, 20____. PRESENT, HON Maurice E. Muir Justice of the Supreme Court ASHMEEN MODIKHAN Index No. 706339/2015 Plaintiff, v. ORDER TO SHOW CAUSE WITH TRO IN GOLDEN TOUCH TRANSPORTATION OF CIVIL ACTION NEW YORK, INC., et al., Defendant(s). Upon reading and filing the affidavit of Ashmeen Modikhan sworn to on the / day of // g//... , 2023 and upon the exhibits attached to the affidavit, and 1. Letter to Honorable Maurice Muir dated April 7, 2023 (unable to file) (Exhibit ("A") 2. Honorable Judge Eric Komitee's Order (Appeals Court) (Exhibit "B") 3. Appeal Brief Filed on January 13, 2023 (Exhibit "C") 4. Motion for Stay dated January 18, 2023 (unable to file in State Court) (Exhibit "D") 5. Retainer agreement in my possession("E") 6. Retainer agreement filed in Bankruptcy Court Eastern District (Exhibit "F") 7. Document filed on State Court with Matthew Maloney Signatures (Exhibit "G") Queens Counts Clerk's Of f ice Pasm 2972072 04/10/2023 9:26a Cashier ZASHRAF Resister ¾ 4 Tr.3670734 $45.00 Documents Pas At Court E-f ile 706339/2015 OTSC Total: $45.00 Cash $45.00 8. Termination of Frank Cassisi filed on September 16, 2022(Exhibit "H") 9. Trustee's Nisselson's "Answer to my Eastern District Appeal (Exhibit "I") Let the Plaintiff show cause at the IAS Part, Room of this Court, to be held at the Courthouse, 88-11 Sutphin Boulevard, Jamaica, NY 11435 /25-10 Court Square, Long Island 10"' City, NY 11101 on the day of April, 2023, at 10:00 o'clock in the /pm or as soon as counsel may be heard why an order should not be made for consent to remove Frank Cassisi, Esq. as Plaintiff's counsel in this case and to deny Frank Cassisi's Motion for Substitution of Plaintiff-with Plaintiff's Chapter 7 Trustee, Alan Nisselson in Chapter 7 Bankruptcy Case No: (19-46591-jmm) in the US Bankruptcy Court Eastern District of New York., as the new Plaintiff. I filed my Appeal Brief on January 13, 2023(Case No: 22-cv-06434-EK) of the rulings of Judge Jil Mazer-Marino in my Chapter 7 case. In the event the Appeal is successful, it would grant my original motion to withdraw from the Chapter 7 proceedings and immediately remove Nisselson as trustee, and make hiring of my former attorney Frank Cassisi null and void. At the very least this Honorable Court should stay proceedings. Should my appeal be succeed, I would also be able to terminate Cassisi for the second time, and proceed with my personal injury case to a jury trial. In other words if there is no Chapter 7 proceeding, there is no trustee (Nisselson) and there is no counsel for Nisselson (Cassisi). In any case, Cassisi should be disqualified as an officer of this Honorable Court for having filed a forged retainer agreement in the Eastern District, as part of the process for him to represent the trustee Nisselson, which is a criminal offense. The agreement" purported "retainer remains on the court docket. In conducting additional investigation a newspaper reporter has also discovered that signatures attributed to Cassisi's former associates, Matthew Maloney, on various documents filed in the State Court, may have been forged since, at least six of them don't resemble each other- a matter which I hope this 2 Honorable Court will also investigate. I have referred the matter of the forged "retainer agreement" in the Eastern District to the Department of Justice. It is for these reason outlined that Cassisi's Motion to Substitute Plaintiff and edit caption should be denied. At least it is premature, pending outcome of my appeal on the decision in the Eastern District which decision allowed Cassisi to become trustee Nisselson counsel in the first place. Ashmeen Modikhan, the Plaintiff, should have such other and further relief as may be | just, proper or equitable. Pending the hearing and determination of this motion is ORDERED that Frank Cassisi is terminated as counsel for the plaintiff and his motion to substitute plaintiff and edit caption is also denied. Sufficient cause appearing therefore, let personal service of a copy of this order, and the other papers upon which this order is granted, upon the defendants by on or before the day of , 2023, be deemed good and sufficient. An affidavit or other proof of service shall be presented to this Court on the return date directed in the second paragraph of this order. ENTER JSC 3 Ashmeen Modikhan 94-22 Magnolia Court, Unit IB Ozone Park, NY 11417 Email: aakl123@aol.com April 7, 2023 Hon. Maurice E. Muir 2510 Court Square Long Island City, NY 11101-4335 Email: QSCPart42@nycourts.gov Re: STAY OF PROCEEDINGS (Modikhan v. Golden Touch, et al., Case No. 706339/2015) Respectfully, I am the Plaintiff in the referenced case. This letter serves as my humble request for you to address my need for a stay of the proceedings in the said case. I write this letter because my former attorney in this case, Frank Cassisi, was hired by the Trustee in my Bankruptcy case at the United States Bank.ruptcy Court, Eastern District of New York, (Case No. 19-46591-jmm). Ever since the Trustee retained my former attorney, the Trustee has been seeking to take over the referenced case. Please note that I filed an Appeal at the United States District Court, Eastern District of New York (Case No. 22-cv-06434-EK), challenging the decisions of the Court. The Appeal concerns my application to withdraw the Bankruptcy case. The Appeal also raised well-documented cases of fraud in the case including: the filing of false proofs of claim which legally led the court to recognize the creditors as parties of interest; the filing of a forged retainer agreement by Cassisi, which remains on the docket in the Eastern District. Therefore, the decision issued by the Appeal Court would directly affect this case. Notably, the Trustee can only claim to represent me if there 1s an ongoing .Bankruptcy case. If the Appeal Court grants my appeal, the Trustee will have no standing to represent me in this case. In light of the foregoing, I previously sought to file a Motion to Stay the Proceedings in this case pursuant to N.Y. C.P.L.R. Law § 2201. However, the clerk refused to accept my motion because my former attorney Frank Cassisi has not yet removed himself from this case. I am therefore respectfully requesting your Honor to consider my request to stay this matter for the foresaid reason(s). In the event this matter is not stayed, I am prone to suffer disastrously since the Trustee would unjustly take over my case even though there is a pending appeal whose decision may instantly remove their standing to represent me in this case. Finally, a Stay would allow the authorities to investigate the forged retainer agreement filed by Cassisi in the Bankruptcy court, which I understand is a criminal offense and I pray the State Supreme Court will take seriously. I have also referred the Cassisi matter to the Department of Justice. The attached newspaper article and copy of the letter I sent to the Department of Justice elaborates. I am preparing to also file an emergency order to show case on Monday 10, 2023. I have already notified Frank Cassisi via email. I have attached a copy of the M.otion for Stay that I tried to file in this Court on January 18, 2023. Respectfully, úshmeen Modil h n Cc: Lewis Brisbois (Attorneys for Defendant) naomi.skura@lewisbrisbous.com Frank J. Cassisi (Plaintiff's former attorney) fcassisi@ccpclaw.net Tim Tenke ttenke@ccpclaw.net Alan Nisselson (Bankruptcy Trustee) anisselson@windelsmarz.com Honorable Marguerite Grays QSCOart4( nycourts.gov TSP@nycourts.gov efox ----r-¬ U.S. District Court Eastern District of New York Notice of Electronic Filing The following transaction was entered on 12/14/2022 at 9:59 AM EST and filed on 12/13/2022 Case Name: Modikhan v. Aronow et al Case Number: 1:22-cv-06434-EK Filer: Document Numbeir:9 Docket Text: Notice of Bankruptcy Record Received. Second Transmission of Additional Record on Appeal to District Court. Notice to all parties, in accordance with Federal Rule of Bankruptcy - been received or-is available electronically. Procedure 8010(b)(3); that the record has Parties shall now follow briefing schedule as set forth in Federal Rule of Bankruptcy Procedure 8018. Specifically, appellant must serve and file a brief within 30 days of this notice, the appellee must serve and file a brief within 30 days after service of the appellants brief, and the appellant may serve and file a reply brief within 14 days after service of the appellees brief, but a reply brief must be filed at least 7 days before scheduled argument. (Attachments: # (1) Part 2, # (2) Part 3, # (3) Part 4, # (4) Part 5, # (5) Part 6, # (6) Trans of Add Rec on Appeal (BK, # (7) Trans of Add Rec on Appeal (BK: Notice Recipients) (copy of NEF mailed to pro se appellant) (TL) 1:22-ev-06434-EK Notice has been electronically mailed to: . . Marianne DeRosa derosa@chl3mdr.com . . Frank J. Cassisi fcassisi@cepclaw.net Matthew Maloney mmaloney@sjdfirm.com, yquesada@sjdfirm.com Alan Nisselson anisselson@windelsmarx.com Krista M. Preuss kristap@chl3mdr.com Jonathan M. Robbin jonathan.robbin@jrobbinlaw.com, teresa.maldonado@jrobbinlaw.com Darren Arthur Aronow darren@dalawpe.com, 1182942420@filings.docketbird.com, Amanda.B@aronowlaw.com, Dennis.M@AronowLaw.com, aronowlaw@aol.com, jessica.m@aronowlaw.com Andrea Marie Roberts andrea.roberts@blankrome.com, edocketing@blankrome.com Edmund B. Troya etroya@windelsmarx.com, etroya@gmail.com Jacquelyn Alena Dicicco jacquelyn.dicicco@jrobbinlaw.com, teresa.maldonado@jrobbinlaw.com Aleksandra Krasimirova Fugate afugate@woodsoviatt.com . . 1 of 3 9:59 A 12/14/2022, https://nyed-ecf.sso.den/cgi-bin/Dispatch.pl?10250785217422 Nicholas John Bebirian nbebirian@silvermanacampora.com Hanin R Shadood hanin.s@aronowlaw.com, darren@dalawpc.com Katherine Heidbrink kheidbrink@ecf.courtdrive.com Marie Theresa Nicholson mnicholson@grosspolowy.com 1:22-cv-06434-EK Notice will not be electronically mailed to: Ashmeen Modikhan 94-22 Magnolia Court Unit IB Ozone Park, NY 11417 .... - .Marylou Martin Office of U.S. Trustee - Region 2 U.S. Federal Office Building 201 Varick Street Ste. 1006 New York, NY 10014 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP NYEDStamp_ID=875559751 [Date=12/14/2022] [FileNumber=17447081-0 ] [cd179f556ddaaf2e31ba25de4fa8ec715elbf311cb907f89184c72a3d31f3fdd625 416afd82bfa248fib5c76f2a75e721el39461d21f4d224d4c1744467d220c]] Document description: Part 2 Original filename:n/a Electronic document Stamp: [STAMP NYEDStamp_ID=875559751 [Date=12/14/2022] [FileNumber=17447081-1 . . ]_[c90c820fba04293b81cb2744dfb6426764e602d640c91859def5898_535.7ce4eb901 cb71633444f487640b488c1779d5aclf5344b333b3e7210e029626a1073c0]] Document description: Part 3 Original filename:n/a Electronic document Stamp: [STAMP NYEDStamp_ID=875559751 [Date=12/14/2022] [FileNumber=17447081-2 ] [8f0b479301723c3f9c0e7f0525e8ca501f689de1c6fee0f6a82af1370b754f17bf2 552d439aeb4f56d8ab3f5022baccff0c31ba0f5a39b0a7f875f3a28ad113a]] Document description: Part 4 Original filename:n/a Electronic document Stamp: [STAMP NYEDStamp__ID=875559751 [Date=12/14/2022] [FileNumber=17447081-3 [11aa78f116454f03da9a45a84967ed3f12cd4cdf376a603elee744af8352463a417 ] 1c8f28d7f165fa848ccc3930a30325c2e2c700add86c6a685a991ef5e0907]] Document description: Part 5 Original filename:n/a Electronic document Stamp: [STAMP NYEDStamp_ID=875559751 [Date=12/14/2022] [FileNumber-17447081-4 ] [78d267d6d9b6c8e0d83af9e5f5dee2c74bc1d9967b41b89adb4689cc94197123e53 4f8f49f9270f3fb7660e086dd481672a4048dff64217beece5814c80bf834]] Document description: Part 6 Original filename:n/a Electronic document Stamp: [STAMP NYEDStamp. ID=875559751 [Date=12/14/2022] [FileNumber=17447081-5 ] [954240e5488b715c54a0b3b449825cae84924d6d4564d478a34fb6a3418b40b661a f053fa73284d5f3ed647cbf8f273def05d782e561a0b854c3bb7595f3bdaa]] Document description: Trans of Add Rec on Appeal (BK Original filename:n/a Electronic document Stamp: [STAMP NYEDStamp_ID=875559751 (Date=12/14/2022] [FileNumber=17447081-6 ] [47bd5c769eaf274da4ca6d96d5d654deabl92e68efclad4b222aff2c54114f7262c f45f01bdce823f9f056cc3ed0976816673e72360c51291f2cec8240343e22]] · - Document-description Trans of Add·Rec on Appeal (BK:-Notice Recipients Original filename:n/a Electronic document Stamp: [STAMP NYEDStamp_ID=875559751 [Date=12/14/2022] [FileNumber=17447081-7 ] [70350fdeaaa390976b7952f32fa524e3d05a2a739e707d7246df5e4828004fle7fe e3edddaa091a1173c70976632839d015eae7d883dle3c905fdleef009ff42]] of 3 12/14/2022, 9:59 AM EXHIBIT No: 22-cv-06434-EK UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ASHMEEN MODIKHAN, Appellant (Debtor), v. DARREN ARONOW, ESQ., HANIN R. SHADOOD, COURTNEY R. WILLIAMS, ESQ., FAY SERVICING LLC, RUSHMORE LOAN MANAGEMENT SERVICES, LLC. MARIANNE DEROSA et al, Appellees. Appeal from the United States Bankruptcy Court, Eastern District of New York Case No. 19-46591-jmm APPEAL BRIEF Ashmeen Modikhan 94-22 Magnolia Court, Unit 1B Ozone Park, NY 11417 Appellant, in pro per TABLE OF CONTENTS TABLE OF CONTENTS..........................................................................................1 TABLE OF AUTHORITIES.....................................................................................3 JURISDICTIONAL STATEMENT..........................................................................5 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW.............................5 STATEMENT OF THE CASE.................................................................................6 SUMMARY OF THE ARGUMENT......................................................................15 THE APPLICABLE STADARD OF REVIEW.....................................................16 ARGUMENTS........................................................................................................17 A. The Trial Court failed to address the concern that the Proofs of Claim were false.......................................................................................................................17 B. The Trial Court abused its discretion when it failed to address the $63,000 that was entered in the schedule falsely; the Court also failed to order an accounting 22 C. The Trial Court failed to address the Trustee's breach of fiduciary duty .....25 D. Appellant is entitled to withdraw the case..................................................... 27 E. The Trial Court erred when it failed to consider the fraud in the foreclosure proceeding(s) in state court..................................................................................28 F. There was a conflict of interest......................................................................29 G. The Trustee unlawfully and/or unjustly increased fees.................................33 t 1 CONCLUSION ................................................. CERTIFICATE OF COMPLIANCE ....................................·········.····....................37 2 TABLE OF AUTHORITIES Cases In re C. Keffas & Son Florist, Inc., 240 B.R. 466 (Bankr. E.D.N.Y. 1999)...........23 In re C. Keffas Son Florist, Inc., 240 B.R. 466 (Bankr. E.D.N.Y. 1999)...............24 In re Isaacson, 478 B.R. 763, 792 (Bankr.E.D.Va.2012)....................................... 15 In re Salander-O'Reilly Galleries, LLC, 475 B.R. 9, 19 (S.D.N.Y. 2012).............20 Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928)............................................29 Merchants Bank v. Goodyear, 228 B.R. 87, 880 (2d Cir.2003).............................14 Overbaugh v. Household Bank N.A. ( In re Overbaugh ), 559 F.3d 125, 129 (2d Cir.2009)............................................................................................................... 14 Parmalat Capital Fin. Ltd. v. Bank of Am. Corp., 639 F.3d 572, 580 (2d Cir.2011) .............................................................................................................................. 14 Santa Bosa Mall, LLC v. Sears Holdings Corp., No. 20-CV-03923, 2021 WL 4429507, at *2 (S.D.N.Y. Sept. 27, 2021)...........................................................19 Scheidelman v. Henderson (In re Henderson), 423 B.R. 598, 619 (Bankr.N.D.N.Y.2010).........................................................................................15 United States ex rel. Grubea v. Rosicki, Rosicki & Assocs., 12-cv-7199...............25 United States v. Levy, 25 F.3d 146, 153 (2d Cir. 1994)..........................................26 Statutes 11 U.S. Code § 707(b)(1)........................................................................................24 3 11 U.S.C. 727 ........................................................................................ 14 11 USC. 704 1 & ........................................................................................... 22 28 U.S. 158 .......................................................................................... 4 UCC §§ 3-104 and 3-804 ........................................................................................ 25 Other Authorities 6 Collier on Bankruptcy, (15th Ed. Revised), ¶ 704.02[3] at 704-12..................... 23 Rules . R. dFe Bankr. P. 8 13 ............................................................................................ 14 Rule 1.7 of the Model Rules of Professional Conduct............................................ 26 JURISDICTIONAL STATEMENT Appellant ASHMEEN MODIKHAN hereby appeals the order issued by Judge Jill Mazer-Marino on August 25, 2022 and September 1, 2022 (hereinafter "order"), pursuant to 28 U.S. Code § 158(a)(3). Notably, the orders are an interlocutory order issued by a bankruptcy judge of the United States Bankruptcy Court, Eastern District of New York. Further, Appellant files this Appeal in the judicial district of the Trial Court. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 1. WHETHER THE TRIAL COURT FAILED TO ADDRESS THE CONCERN THAT THE PROOFS OF CLAIM WERE FALSE 2. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO ADDRESS THE $63,000 THAT WAS ENTERED IN THE SCHEDULE FALSELY; THE COURT ALSO FAILED TO ORDER AN ACCOUNTING 3. WHETHER THE TRIAL COURT FAILED TO ADDRESS THE TRUSTEE'S BREACH OF FIDUCIARY DUTY 4. WHETHER APPELLANT IS ENTITLED TO WITHDRAW THE CASE 5. WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO CONSIDER THE FRAUD IN THE FORECLOSURE PROCEEDING (S) 6. WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO ADDRESS THE CONFLICT OF INTEREST IN THE CASE 7. WHETHER THE TRIAL COURT ERRED IN FAILING TO ADDRESS THE TRUSTEE'S INCREASE OF FEES STATEMENT OF THE CASE On or about June 28, 2012, the Appellant, through her attorney, commenced a case under Chapter 7 of the Bankruptcy Code (the "First Bankruptcy Case") by filing a voluntary petition for relief with the Clerk of the US Bankruptcy Court for the Eastern District of New York). In the case, Appellant filed Schedule A which disclosed her fee simple ownership of the Investment Property and the Residential Property. She also filed a Schedule of Creditors Holding Secured Claims, listed BAC Home Loans Servicing LP as a secured creditor with claims secured by mortgages on the Residential Property and the Investment Property. BAC Home Loans Servicing, LP was not the originating lender for either property. It was stated in the Appellant's Statement of Intention she would retain the properties and enter into a loan modification with Bank of America for the Residential Property. On October 10, 2012, the Case." Appellant was granted a discharge in the "First Bankruptcy The Appellant abided her intentions filed with the court by attempting to modify her loan . by Un re Modikhan, Case No. 12-44750 (Bankr. E.D.N.Y), ECF No. 1 6 with Bank of America with resistance by the company. A loan modification was never completed due to the resistance of Bank of America. The MERS Identification Number (MIN) 1000157-0005860385-9 located on both the subject mortgage and note for the Residential Property denotes in MERS database that Bank of America, NA is the servicer of the loan for the investor, Fannie Mae. On October 11, 2016, Fannie Mae announced a Non-Performing Loan Sale FNMA 2016 NPL5. On November 10, 2016, FNMA announced that MTGLQ Investors, LP (Goldman Sachs) won the bid and expected the deal to close on December 23, 2016. On January 20, 2017, MTGLQ Investors, L.P. sent a Notice of Assignment, Sale or Transfer of Ownership of Mortgage Loan (15 U.S.C. § 1641(g)) to the Appellant's then foreclosure attorney. This letter states that MTGLQ Investors, L.P. had purchased the Appellant's mortgage loan on December 22, 2016, and Nationstar would be the Mortgage Loan Servicer. On Februar