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500 Bausch & Lomb Place
Rochester, NY 14604 P 855-227-5072
F 585-454-0302
Attorney's Email: KBolduc@woodsdefaultservices.com
August 2, 2023
via NYSCEF & FAX 646-963-6402
Hon. Brian D. Burns, JSC
Delaware County Supreme Court
3 Court Street
Delhi, NY 13753
Re: HSBC Bank USA, National Association As Trustee vs. Diane E.
Knight, et al.
Index No.: EF2015-901
Dear Your Honor:
Our office represents the Plaintiff in the above referenced action. We oppose Defendant's
Proposed Order to show cause to stay the foreclosure sale. Please contact me via telephone 585-
445-2776 or via email Kbolduc@woodsdefaultservices.com, if the Court intends to hold virtual
oral argument on this case matter.
We respectfully request the proposed Order to Show Cause to stay the sale be declined for
signature. Please be advised that the Defendant, Diane E. Knight, entered into a stipulation
whereby Diane E. Knight agreed that she consented to the Judgment of Foreclosure and Sale,
agreed to waive all defenses and objections to the foreclosure action, and agreed not to impede
the foreclosure sale of the property in any way. A copy of the Stipulation is annexed hereto for
the Court's convenience in Exhibit "A", and was duly filed with the Clerk's Office on May 12,
2023. See, NYSCEF Doc. No. 17. The Defendant already stipulated that she would not impede
the sale in exchange for a lump sum of $10,000.00 paid by the bank. The Defendant is not entitled
to request a stay of the sale or impede the sale in any way, and waived all defenses and objections
pursuant to the signed agreement.
Moreover, the Defendant's allegations are completely meritless. The fact that the notice
of sale does not include the words "with the buildings and improvements erected" does not make
{9000884: }103709-1
the notice of sale defective in any way. The Notice of Sale accurately describes the mortgaged
property and correctly describes the land as "All that land tract or parcel of land situated in the
Town of Roxbury, County of Delaware", and further states that the property subject to the sale is
known as 776 Autumn Breeze Road f/k/a 1 Autumn Breeze Road, Denver, NY 12421.
To be entitled to a temporary stay, Defendant is required to demonstrate the likelihood of
success on the merits, irreparable harm absent the preliminary injunction, and a balancing of the
equities in her favor. See Board of Dirs. of Exec. House Owners v. E.H. Assocs., L.P., 230 A.D.2d
816, 646 N.Y.S.2d 631 (2d Dep't Aug. 19, 1996). Defendant's supporting affidavit does not
demonstrate any likelihood of success or entitlement to a stay. The fact remains that she previously
stipulated to consent to the Judgment of Foreclosure, and the scheduled foreclosure sale, and waive
all future objections.
It is commonly known that a judgment of foreclosure and sale entered against a
defendant, even upon his or her default, is final as to all questions at issue between the parties, and
all matters of defense, which were or might have been litigated in the foreclosure action are
concluded. See Signature Bank v Epstein, 95 A.D.3d 1199, 1200, 945 N.Y.S.2d 347 (2d Dep't
2012); Wells Fargo Bank, N.A. v. Graziano, 192 A.D.3d 1192, 1193-1193, 141 N.Y.S.3d 336 (2d
Dep't 2021); Ciraldo v. JP Morgan Chase Bank, N.A., 140 A.D.3d 912, 913, 34 N.Y.S.3d 113
(2016). As such, Defendant is not entitled to raise any additional defenses at this time.
We respectfully request the Court deny the proposed Order to Show Cause. Should. you
have any questions, I can be reached directly at 585-445-2776 or via
Email Kbolduc@woodsdefaultservices.com. Thank you for your attention and consideration.
Sincerely,
Woods Oviatt Gilman LLP
Kristin Bolduc, Esq.
Attorney for Plaintiff
cc:
SENT VIA EMAIL AND NYSCEF
Sheldon Farber, Esq.
Attorney for Defendant
162 W 54th St, Apt 8F
New York, NY 10019
Email: AttorneyFarber@aol.com
{9000884: }103709-1
EXHIBIT A
{8122085: }
FILED: DELAWARE COUNTY CLERK 05/12/2023 12:18 PM INDEX NO. EF2015-901
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/12/2023
STATE OF NEW YORK
SUPREME COURT: COUNTY OF DELAWARE
HSBC BANK USA, NATIONAL ASSOCIATION AS
TRUSTEE FOR NOMURA ASSET ACCEPTANCE
CORPORATION, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2005-AP3,
Plaintiff, STIPULATION
v. INDEX #: 2015-901
DIANF E T(NIGHT A 'K /A DTANF KNIGHT. CITIRANK.
NA, MADISON HOME EQUITIES INC.,
and JOHN DOE,
Defendants.
WHEREAS, HSBC BANK USA, NATIONAL ASSOCIATION AS TRUSTEE FOR
NOMURA ASSET ACCEPTANCE CORPORATION, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2005-AP3 ("Plaintiff") has instituted the within action to foreclose
upon the premises known as 776 Autumn Breeze Road f/k/a 1 Autumn Breeze Road, Denver,
NY 12421 by the filing of an Amended Notice of Pendency, Summons, and Complaint on
October 21, 2015; it is now
STIPULATED AND AGREED, by and between the undersigned counsel for Defendant
Diane E. Knight a/k/a Diane Knight, ("Defendant") and counsel for the Plaintiff, that Defendant
hereby consents to the Judgment of Foreclosure and Sale in this Action duly entered an
December 12, 2019, with no contest or no impediment to the proceedings, agree to waive all
defenses and objections to the foreclosure action, and will not otherwise impede the foreclosure
sale of the Subject Premises in any way; and it is further
STIPULATED AND AGREED, that Plaintiff pays Ten Thousand Dollars ($10,000.00
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FILED: DELAWARE COUNTY CLERK 05/12/2023 12:18 PM INDEX NO. EF2015-901
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/12/2023
USD) to Defendant Diane E. Knight a/k/a Diane Knight, in exchange said Defendant will
vacate the mortgage premises no later than May 01, 2020, and the property be left in broom
swept condition; and it is further
STIPULATED AND AGREED, that forty-eighty (48) hours prior to the date that the
Defendant'
Defendant vacates the Subject Premises, counsel must contact counsel for the
Plaintiff so the Plaintiff may secure the Subject Premises and inspect the Subject Premises prior
to issuance of the check; and it is further
STIPUIATED ANE; AGREED, that upon cowfMustion tliat the Subject Pre=:sés k
vacant and in broom-swept condition, with all appliances remaining, Plaintiff will pay to
Defendant the amount of Ten Thousand Dollars ($10,000.00 USD) by certified check, payable to
Defendant and mailed to Defendant's Counsel's Office at the address specified below; and it is
further
STIPULATED AND AGREED, that Plaintiff hereby waives any claim or right to any
deficiency remaining against Defendant, and will not pursue a judgment for said deficiency; and
it is further
STIPULATED AND AGREED, that the borrower agrees he/she may receive periodic
statements showing information consistent with the terms of the Note and Mortgage through
issuance of the certificate of title and for a reasonable period thereafter and that such statements
are for informational purposes only; and it is further
[THIS SPACE LEFT INTENTIONALLY BLANK]
S'“IPULATED AND AGREED, that this stipulation may be filed without further notice
with the Clerk of Delaware County and that a fully executed copy or facsimile of this stipulation
{7965309:3 }20155235
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FILED: DELAWARE COUNTY CLERK 05/12/2023 12:18 PM INDEX NO. EF2015-901
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/12/2023
shall be deemed an original for purposes of filing the same with court.
'
Dated: C 2 (3 (g Ó 9620 WOODS_OYIAT N LLP
Rochester, New York -¬__ / //
Tammy L. Garcia-Klipfel, Esq.
Attorneys for Plaintiff
500 Bausch & Lomb Place
Rochester, NY 14604
855-227-5072
Dated:
Sheldon Farber, Esq.
Attorney for the Defendant
162 West 54th Street
New York, NY 10019
212-956-0881
{7965309:3 }20155235
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500 Bausch & Lomb Place Rochester, NY 14604 P 855-227-5072 F 585-454-0302 Attorney's Email: KBolduc@woodsdefaultservices.com August 2, 2023 via NYSCEF & FAX 646-963-6402 Hon. Brian D. Burns, JSC Delaware County Supreme Court 3 Court Street Delhi, NY 13753 Re: HSBC Bank USA, National Association As Trustee vs. Diane E. Knight, et al. Index No.: EF2015-901 Dear Your Honor: Our office represents the Plaintiff in the above referenced action. We oppose Defendant's Proposed Order to show cause to stay the foreclosure sale. Please contact me via telephone 585- 445-2776 or via email Kbolduc@woodsdefaultservices.com, if the Court intends to hold virtual oral argument on this case matter. We respectfully request the proposed Order to Show Cause to stay the sale be declined for signature. Please be advised that the Defendant, Diane E. Knight, entered into a stipulation whereby Diane E. Knight agreed that she consented to the Judgment of Foreclosure and Sale, agreed to waive all defenses and objections to the foreclosure action, and agreed not to impede the foreclosure sale of the property in any way. A copy of the Stipulation is annexed hereto for the Court's convenience in Exhibit "A", and was duly filed with the Clerk's Office on May 12, 2023. See, NYSCEF Doc. No. 17. The Defendant already stipulated that she would not impede the sale in exchange for a lump sum of $10,000.00 paid by the bank. The Defendant is not entitled to request a stay of the sale or impede the sale in any way, and waived all defenses and objections pursuant to the signed agreement. Moreover, the Defendant's allegations are completely meritless. The fact that the notice of sale does not include the words "with the buildings and improvements erected" does not make {9000884: }103709-1 the notice of sale defective in any way. The Notice of Sale accurately describes the mortgaged property and correctly describes the land as "All that land tract or parcel of land situated in the Town of Roxbury, County of Delaware", and further states that the property subject to the sale is known as 776 Autumn Breeze Road f/k/a 1 Autumn Breeze Road, Denver, NY 12421. To be entitled to a temporary stay, Defendant is required to demonstrate the likelihood of success on the merits, irreparable harm absent the preliminary injunction, and a balancing of the equities in her favor. See Board of Dirs. of Exec. House Owners v. E.H. Assocs., L.P., 230 A.D.2d 816, 646 N.Y.S.2d 631 (2d Dep't Aug. 19, 1996). Defendant's supporting affidavit does not demonstrate any likelihood of success or entitlement to a stay. The fact remains that she previously stipulated to consent to the Judgment of Foreclosure, and the scheduled foreclosure sale, and waive all future objections. It is commonly known that a judgment of foreclosure and sale entered against a defendant, even upon his or her default, is final as to all questions at issue between the parties, and all matters of defense, which were or might have been litigated in the foreclosure action are concluded. See Signature Bank v Epstein, 95 A.D.3d 1199, 1200, 945 N.Y.S.2d 347 (2d Dep't 2012); Wells Fargo Bank, N.A. v. Graziano, 192 A.D.3d 1192, 1193-1193, 141 N.Y.S.3d 336 (2d Dep't 2021); Ciraldo v. JP Morgan Chase Bank, N.A., 140 A.D.3d 912, 913, 34 N.Y.S.3d 113 (2016). As such, Defendant is not entitled to raise any additional defenses at this time. We respectfully request the Court deny the proposed Order to Show Cause. Should. you have any questions, I can be reached directly at 585-445-2776 or via Email Kbolduc@woodsdefaultservices.com. Thank you for your attention and consideration. Sincerely, Woods Oviatt Gilman LLP Kristin Bolduc, Esq. Attorney for Plaintiff cc: SENT VIA EMAIL AND NYSCEF Sheldon Farber, Esq. Attorney for Defendant 162 W 54th St, Apt 8F New York, NY 10019 Email: AttorneyFarber@aol.com {9000884: }103709-1 EXHIBIT A {8122085: } FILED: DELAWARE COUNTY CLERK 05/12/2023 12:18 PM INDEX NO. EF2015-901 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/12/2023 STATE OF NEW YORK SUPREME COURT: COUNTY OF DELAWARE HSBC BANK USA, NATIONAL ASSOCIATION AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-AP3, Plaintiff, STIPULATION v. INDEX #: 2015-901 DIANF E T(NIGHT A 'K /A DTANF KNIGHT. CITIRANK. NA, MADISON HOME EQUITIES INC., and JOHN DOE, Defendants. WHEREAS, HSBC BANK USA, NATIONAL ASSOCIATION AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-AP3 ("Plaintiff") has instituted the within action to foreclose upon the premises known as 776 Autumn Breeze Road f/k/a 1 Autumn Breeze Road, Denver, NY 12421 by the filing of an Amended Notice of Pendency, Summons, and Complaint on October 21, 2015; it is now STIPULATED AND AGREED, by and between the undersigned counsel for Defendant Diane E. Knight a/k/a Diane Knight, ("Defendant") and counsel for the Plaintiff, that Defendant hereby consents to the Judgment of Foreclosure and Sale in this Action duly entered an December 12, 2019, with no contest or no impediment to the proceedings, agree to waive all defenses and objections to the foreclosure action, and will not otherwise impede the foreclosure sale of the Subject Premises in any way; and it is further STIPULATED AND AGREED, that Plaintiff pays Ten Thousand Dollars ($10,000.00 {7965309:3 }20155235 1 of 3 FILED: DELAWARE COUNTY CLERK 05/12/2023 12:18 PM INDEX NO. EF2015-901 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/12/2023 USD) to Defendant Diane E. Knight a/k/a Diane Knight, in exchange said Defendant will vacate the mortgage premises no later than May 01, 2020, and the property be left in broom swept condition; and it is further STIPULATED AND AGREED, that forty-eighty (48) hours prior to the date that the Defendant' Defendant vacates the Subject Premises, counsel must contact counsel for the Plaintiff so the Plaintiff may secure the Subject Premises and inspect the Subject Premises prior to issuance of the check; and it is further STIPUIATED ANE; AGREED, that upon cowfMustion tliat the Subject Pre=:sés k vacant and in broom-swept condition, with all appliances remaining, Plaintiff will pay to Defendant the amount of Ten Thousand Dollars ($10,000.00 USD) by certified check, payable to Defendant and mailed to Defendant's Counsel's Office at the address specified below; and it is further STIPULATED AND AGREED, that Plaintiff hereby waives any claim or right to any deficiency remaining against Defendant, and will not pursue a judgment for said deficiency; and it is further STIPULATED AND AGREED, that the borrower agrees he/she may receive periodic statements showing information consistent with the terms of the Note and Mortgage through issuance of the certificate of title and for a reasonable period thereafter and that such statements are for informational purposes only; and it is further [THIS SPACE LEFT INTENTIONALLY BLANK] S'“IPULATED AND AGREED, that this stipulation may be filed without further notice with the Clerk of Delaware County and that a fully executed copy or facsimile of this stipulation {7965309:3 }20155235 2 of 3 FILED: DELAWARE COUNTY CLERK 05/12/2023 12:18 PM INDEX NO. EF2015-901 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/12/2023 shall be deemed an original for purposes of filing the same with court. ' Dated: C 2 (3 (g Ó 9620 WOODS_OYIAT N LLP Rochester, New York -¬__ / // Tammy L. Garcia-Klipfel, Esq. Attorneys for Plaintiff 500 Bausch & Lomb Place Rochester, NY 14604 855-227-5072 Dated: Sheldon Farber, Esq. Attorney for the Defendant 162 West 54th Street New York, NY 10019 212-956-0881 {7965309:3 }20155235 3 of 3