Preview
FILED: KINGS COUNTY CLERK 06/30/2023 09:52 AM INDEX NO. 522945/2021
NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 06/30/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
X
U.S. BANK TRUST NATIONAL ASSOCIATION, et al.
Index No.: 522945/2021
Plaintiff,
-against-
AFFIRMATION IN
REPLY AND OPPOSITION
TO PLAINTIFF'S CROSS-
19"
215 STREET, LLC MOTION TO STAY ACTION
Defendant.
X
Jerald J. DeSocio, an attorney duly admitted to practice law before the Courts of the State
of New York, hereby affirms the following to be true under penalties of perjury:
1. I am a member of the firm Jerald J. DeSocio & Associates, P.C., attorneys for the
Plaintiff, and as such I am fully familiar with all of the facts and circumstances herein:
19th
2. I make this affirmation in further support of the Defendant, 215 Street, LLC's
"19th
(hereinafter eetn) Motion for Summary Judgment and in Opposition to Plaintiff, U.S.
Banl's Cross Motion that requests for the Court to stay the action pending a determination on its
Order to Show Cause to Vacate a 2019 quiet title action.
3. U.S. Bank's request should be denied due to the absence of sufficient grounds to vacate
the default judgment entered against its predecessor in interest, Bank of America in the 2019 quiet
title action to warrant this Court to stay the current action. The Motion for Judgment
Summary
19th
filed by Street should be granted as the mortgage being foreclosed is null and void and the
statute of limitations to foreclose same has expired and as a result there are no issues of material
fact presented by the Plaintiff to overcome Defendant's motion for summary judgment.
4. The facts of this case are clear: (1) the mortgage foreclosed has been declared null
being
and void; (2) U.S. Bank cannot demonstrate an excusable default as is required to vacate a default
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19th
judgment in Street's 2019 quiet title action; (3) even if the Court were to determine that U.S.
Bank has a basis for excusable default in the quiet title action, it would still lack a meritorious
defense as the statute of limitations to foreclose on the premises has expired under the newly
enacted Foreclosure Abuse Prevention Act which applies retroactively and prevents the unilateral
de-acceleration of a debt with respect to the statute of limitations; (4) to allow Plaintiff more time
to relitigate an action in which a default judgment was issued over 3 years ago would be a waste
19th
ofjudicial resources and serve only to prejudice Street; (5) and on June 28, 2023 Hon. Charon
19th
Bourne-Clarke, J.S.C., declined to sign Plaintiff's Order to Show Cause in Street's 2019 quiet
title action. A copy of the declined Order to Show Cause is annexed hereto as Exhibit "A".
ARGUMENT
L Motion to stay action should be denied.
5. Plaintiff's motion to stay the action should be denied because it is unlikely it will be able
to vacate a default judgment in the 2019 quiet title action
6. Even if such application is made, U.S. Bank will be unable vacate the default judgment
that was entered against its predecessor in interest Bank of America in the 2019 quiet title action.
It is axiomatic that to vacate a default judgment or Order the party requesting relief must prove
both excusable default and meritorious defense. "A defendant seeking to vacate a default under
statute providing that party may be relieved from judgment on the ground of, among others,
default"
"excusable must demonstrate a reasonable excuse for its delay in appearing and answering
action."
the complaint and a meritorious defense to the McKinney's CPLR 5015(a). Eugene Di
Lorenzo, Inc. v. A.C. Dutton LumberCo., 67 N.Y.2d 138, 492 N.E.2d 116 (1986).
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U.S. BANK DOES NOT HAVE AN EXCUSABLE DEFAULT
The assignment of mortgage to U.S. Bank was recorded after the 2019 quiet title action was
commenced.
7. In an Order dated March 11, 2020, entered August 11, 2020, Hon. Richard J. Montelione,
19th
J.S.C., granted street's motion, ordering the cancellation and discharge of the Mortgage in
question. A copy of the Order is annexed hereto as Exhibit "B".
19th
8. There is no question that the March 11, 2020 Order is well founded as Street served
19th
the proper defendant in the 2019 quiet title action. Street commenced the quiet title action on
July 18, 2019 by the e-filing of the summons and complaint and the purchase of an index number.
9. Notably, prior to the filing of the Summons and Complaint a title search revealed that
Bank of America was still the holder of the Note and Mortgage. The report did not reveal an
assignment of mortgage to U.S. Bank. A search of the New York City Department of Finance
Office of the City Register shows that the assignment of mortgage to U.S. bank was not recorded
until August 9, 2019, which is three weeks after filing the summons and complaint and after said
documents were sent out to be served on the Defendant. Therefore, the proper Defendant was
served. A copy of the ACRIS search by Parcel Identifier is annexed hereto as Exhibit "C".
Letter of Assignment of Mortgage sent to Original borrower.
10. U.S. Bank tries to substantiate its claim as to an excusable default by first claiming that
its servicer, LSF11 Master Participation Trust, through Caliber Home Loans, sent notice of the
assignment of the Note and Mortgage via letter sent to the borrower on January 14, 2019. U.S.
Bank argues that since it sent said letter notifying of the assignment it should have been named a
Defendant in the action and should have been served since the action commenced on July 18, 2019.
A copy of the letter dated January 14, 2019 is annexed hereto as Exhibit "D".
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11. U.S. Bank fails to mention that the purported letter notifying of the assignment was
19th
sent to Steven Greco, the original borrower, and not 215 Street LLC. Not only did it send the
letter advising of the assignment to the wrong person but said letter fails to identify U.S. Bank as
the new owner of the loan. This is an essential piece of information a borrower is entitled to know
and in which it should not have to investigate. Without clear identification of the owner of the loan
it would make it hard for the average debtor to comprehend or understand the significance of the
letter.
12. The reason behind the letter being sent to Steven Greco is still unclear as a simple
search of the records of the Office of the City Register would reveal that the deed to the premises
19th
in question was transferred on October 19, 2018 to 215 Street, LLC, and said Deed was
recorded on November 1, 2018, over 70 days before U.S. Bank sent said letter. See Exhibit "C".
13. The above clearly shows that the Plaintiff had no way of knowing of the Assignment
since U.S. Bank did not record assignment until after the 2019 quiet title action commenced and
U.S. Bank sent the letter notifying of the assignment to the wrong party and said letter failed to
disclose U.S. Bank as the owner of the loan.
Bank of America took 19th
no steps or actions to notify Street that they no longer had any
interest in the mortgage.
14. The fact is that Bank of America, N.A., should have notified U.S. Bank as to the
pending action since they were given notices several times the litigation of the 2019 quiet
during
title action.
TIMELINE OF NOTICES GIVEN TO DEFENDANT
Affirmation of Service of S& C 8/28/2019
Affirmation of Service of Notice of Motion 12/13/2019
Affirmation of Service of Notice of Settlement 02/11/2020
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Notice of Entry 08/17/2020
15. U.S. Bank either wasn't notified by the Defendant Bank of America or failed to
respond appropriately after being put on notice by Bank of America. Regardless this should not
serve to prejudice the Plaintiff who has taken all the appropriate steps to litigate the matter on the
merits and notified the appropriate Defendant.
U.S. BANK DOES NOT HAVE A MERITORIOUS DEFENSE
16. If the Court in the 2019 quiet title action decides to entertain the Plaintiff's request and
finds that U.S. Bank had an excusable default of lack of notice (it does not, as the Plaintiff has
served the correct party and U.S. Bank at the very minimum had constructive notice of the action)
it would still fail to show they have any meritorious defense as the statute of limitations to foreclose
has expired under the newly enacted Foreclosure Abuse Prevention Act. Given the likelihood of
the Court's denial of a request to vacate the default judgement and because the judge declined to
sign the order to show cause a stay of the action will not be required.
The De-acceleration letter.
17. U.S. Bank erroneously argues that its predecessor in interest sent a letter to the original
borrower which stopped the statute of limitations from running and as such serves as a meritorious
defense in the quiet title action.
18. Said de-acceleration letter dated December 15, 2014, was sent to the original borrower,
Steven Greco, in an attempt to unilaterally revoke the acceleration of the Mortgage in Question
and stop the statute of limitations from expiring. Said letter which was titled "Lender's Notice of
Accelerate" lenders'
Revocation Regarding Prior Election to references the foreclosure action
under Index No.: 33551/08 and claims that the action was commenced on December 16, 2008. The
letter states, inter alia, "... the lender revokes it's prior election to accelerate all sums
hereby due
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and under the aforementioned loan documents". It is very important to note that the de-
owing
limitations.1
acceleration letter was dated one day before the expiration of the six year statute of
Action #2 2016 Quiet title action
19th
19. Unknown by street until now is the fact that the original borrower/prior owner of
the premises, Steven Greco started a quiet title action on March 29, 2016 in the Supreme Court
County of Kings. On May 3, 2016, said action was removed to the U.S. District Court for the
Eastern District of New York under Index No. 16-CV-2196. In an Order dated April 25, 2017,
Chief United States Magistrate Judge, Roanne L. Mann, granted Bank of America, N.A.'s Motion
for Summary Judgment dismissing the action, holding that U.S. Bank's predecessor in interest,
Bank of America, timely de-accelerated the mortgage due before the expiration of the statute of
limitations. A copy of the Order Dated April 25, 2017 is annexed hereto as Exhibit "E".
Noteworthy in this matter is that: (1) the motion granting summary judgment was unopposed for
reasons unknown; (2) as discussed in the April 25, 2017 Order, the sole contention in the matter
was whether the letter purportedly de-accelerating was mailed on a particular date thereby allowing
lender to timely deaccelerate; (3) the Order was based on preceding judicial precedents that have
been completely changed and overruled by the Foreclosure Abuse Prevention Act which applies
retroactively and as discussed in further detail below said action does not affect any ruling by this
Court or the Court in the 2019 quiet title action.
Motion for Summary Judgment
20. In Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986), the Court
1
The issue as to whether the lender timely deaccelerated via the de-acceleration letter was litigated in Steven Greco's quiet title
action of Greco v. Bank of America. Notably under the FAPA, which applies retroactively and amends CPLR Section 203(h), A
lender cannot unilaterally stop the statute of limitations from running via de-acceleration letter.
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of Appeals held:
"[T]he proponent of a summary judgment motion must make a
prima facie showing of entitlement to judgment as a matter of
law, tendering sufficient evidence to demonstrate the absence of
any material issues of fact... Once this showing has been
made..., the burden shifts to the party opposing the motion for
summary judgment to produce evidentiary proof in admissable
form sufficient to establish the existence of material issues of
action."
fact which require a trial of the
21. The Court of Appeals in Zuckerman v. City of New York, 49 N.Y.2d 557, 427
N.Y.S.2d 595 (1980), held: "one opposing a motion for summary judgment must produce
evidentiary proof in admissible form sufficient to require a trial of material questions of fact on
which he rests his claim or must demonstrate acceptable excuse for his failure to meet the
requirement of tender in admissible form; mere conclusions, expressions of hope or
unsubstantiated allegations or assertions are insufficient".
22. "It is incumbent upon a [party] who opposes a motion for summary judgment to
assemble, lay bare and reveal his proofs, in order to show that the matters set up in his [complaint]
trial"
are real and are capable of being established upon a Nel Taxi Corp. v. Eppingen 203 A.D.2d
438, 610 N.Y.S.2d 323 (2nd Dept. 1994)
23. An attorney affirmation of an attorney with no personal knowledge is without
evidentiary value and thus unavailing. (Zuckerman v. City of New York, supra).
The Foreclosure Abuse Prevention Act.
24. The Plaintiff cannot establish that it has a meritorious defense in the quiet title action
as is required to vacate a default judgment because the statute of limitations to foreclose on the
mortgage in question expired. Consequently, Defendant's motion for Judgment should
Summary
be granted on the same grounds.
25. The FAPA was designed to put an end to abusive practices by lenders such as multiple
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foreclosures, and a disregard for judicial rulings, orders and calendar calls. Several existing
statutes were amended, modified and/or substituted.
2.6 Additionally:said Act specifically states as follows in Section 10 of the act:
this a t shall take effect immediately and shall apply to all actions
commeiÃced bn aii instrument described under subdivision four of
section tw hundi·ed thirteen of the civil practice laws and rules_1_n
which a final judgment of foreclosure and sale has not been
nforced. N LHGIS LEG. MEMO 821 (2022), 2022 Sess. Law
News of NElegis. Memo Ch. 821 (McK1NNEY'S)
27. Such is the case here. No judgment of foreclosure and sale has as yet been sought or
obtained. As such, these laws as amended clearly apply to this case.
28. The newly amended sections that are relevaut to this case are CPLR §§ 205(a) and
203(h).
29. Civil Practice law and Rules §205-(a) was added to read as follows:
Termination of certain actions related to real property.
(a) If an action upon an instrument described under
subdivision four of section two hundred thirteen of this
article is timely commenced and is terminated in any
manner other than...for violation of any court order or
individual part rules, for failure to comply with any
court orders or by default due to non-
scheduling
appearance for a conference or at a calendar call...
the original plaintiff... may commence a new action
upon the same transaction... within six months
following the termination...(emphasis supplied)
30. It is respectfully submitted that this section was added to stop lenders from violating,
disregarding or failing to abide by court orders and scheduling dates, have their action dismissed
and then just simply begin a new action and start over.
intervenors'
31. A review of the public record reveals that is exactly what the proposed
predecessor in interest did in this matter.
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Preview
FILED: KINGS COUNTY CLERK 06/30/2023 09:52 AM INDEX NO. 522945/2021 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 06/30/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X U.S. BANK TRUST NATIONAL ASSOCIATION, et al. Index No.: 522945/2021 Plaintiff, -against- AFFIRMATION IN REPLY AND OPPOSITION TO PLAINTIFF'S CROSS- 19" 215 STREET, LLC MOTION TO STAY ACTION Defendant. X Jerald J. DeSocio, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under penalties of perjury: 1. I am a member of the firm Jerald J. DeSocio & Associates, P.C., attorneys for the Plaintiff, and as such I am fully familiar with all of the facts and circumstances herein: 19th 2. I make this affirmation in further support of the Defendant, 215 Street, LLC's "19th (hereinafter eetn) Motion for Summary Judgment and in Opposition to Plaintiff, U.S. Banl's Cross Motion that requests for the Court to stay the action pending a determination on its Order to Show Cause to Vacate a 2019 quiet title action. 3. U.S. Bank's request should be denied due to the absence of sufficient grounds to vacate the default judgment entered against its predecessor in interest, Bank of America in the 2019 quiet title action to warrant this Court to stay the current action. The Motion for Judgment Summary 19th filed by Street should be granted as the mortgage being foreclosed is null and void and the statute of limitations to foreclose same has expired and as a result there are no issues of material fact presented by the Plaintiff to overcome Defendant's motion for summary judgment. 4. The facts of this case are clear: (1) the mortgage foreclosed has been declared null being and void; (2) U.S. Bank cannot demonstrate an excusable default as is required to vacate a default 1 of 19 FILED: KINGS COUNTY CLERK 06/30/2023 09:52 AM INDEX NO. 522945/2021 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 06/30/2023 19th judgment in Street's 2019 quiet title action; (3) even if the Court were to determine that U.S. Bank has a basis for excusable default in the quiet title action, it would still lack a meritorious defense as the statute of limitations to foreclose on the premises has expired under the newly enacted Foreclosure Abuse Prevention Act which applies retroactively and prevents the unilateral de-acceleration of a debt with respect to the statute of limitations; (4) to allow Plaintiff more time to relitigate an action in which a default judgment was issued over 3 years ago would be a waste 19th ofjudicial resources and serve only to prejudice Street; (5) and on June 28, 2023 Hon. Charon 19th Bourne-Clarke, J.S.C., declined to sign Plaintiff's Order to Show Cause in Street's 2019 quiet title action. A copy of the declined Order to Show Cause is annexed hereto as Exhibit "A". ARGUMENT L Motion to stay action should be denied. 5. Plaintiff's motion to stay the action should be denied because it is unlikely it will be able to vacate a default judgment in the 2019 quiet title action 6. Even if such application is made, U.S. Bank will be unable vacate the default judgment that was entered against its predecessor in interest Bank of America in the 2019 quiet title action. It is axiomatic that to vacate a default judgment or Order the party requesting relief must prove both excusable default and meritorious defense. "A defendant seeking to vacate a default under statute providing that party may be relieved from judgment on the ground of, among others, default" "excusable must demonstrate a reasonable excuse for its delay in appearing and answering action." the complaint and a meritorious defense to the McKinney's CPLR 5015(a). Eugene Di Lorenzo, Inc. v. A.C. Dutton LumberCo., 67 N.Y.2d 138, 492 N.E.2d 116 (1986). 2 of 19 FILED: KINGS COUNTY CLERK 06/30/2023 09:52 AM INDEX NO. 522945/2021 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 06/30/2023 U.S. BANK DOES NOT HAVE AN EXCUSABLE DEFAULT The assignment of mortgage to U.S. Bank was recorded after the 2019 quiet title action was commenced. 7. In an Order dated March 11, 2020, entered August 11, 2020, Hon. Richard J. Montelione, 19th J.S.C., granted street's motion, ordering the cancellation and discharge of the Mortgage in question. A copy of the Order is annexed hereto as Exhibit "B". 19th 8. There is no question that the March 11, 2020 Order is well founded as Street served 19th the proper defendant in the 2019 quiet title action. Street commenced the quiet title action on July 18, 2019 by the e-filing of the summons and complaint and the purchase of an index number. 9. Notably, prior to the filing of the Summons and Complaint a title search revealed that Bank of America was still the holder of the Note and Mortgage. The report did not reveal an assignment of mortgage to U.S. Bank. A search of the New York City Department of Finance Office of the City Register shows that the assignment of mortgage to U.S. bank was not recorded until August 9, 2019, which is three weeks after filing the summons and complaint and after said documents were sent out to be served on the Defendant. Therefore, the proper Defendant was served. A copy of the ACRIS search by Parcel Identifier is annexed hereto as Exhibit "C". Letter of Assignment of Mortgage sent to Original borrower. 10. U.S. Bank tries to substantiate its claim as to an excusable default by first claiming that its servicer, LSF11 Master Participation Trust, through Caliber Home Loans, sent notice of the assignment of the Note and Mortgage via letter sent to the borrower on January 14, 2019. U.S. Bank argues that since it sent said letter notifying of the assignment it should have been named a Defendant in the action and should have been served since the action commenced on July 18, 2019. A copy of the letter dated January 14, 2019 is annexed hereto as Exhibit "D". 3 of 19 FILED: KINGS COUNTY CLERK 06/30/2023 09:52 AM INDEX NO. 522945/2021 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 06/30/2023 11. U.S. Bank fails to mention that the purported letter notifying of the assignment was 19th sent to Steven Greco, the original borrower, and not 215 Street LLC. Not only did it send the letter advising of the assignment to the wrong person but said letter fails to identify U.S. Bank as the new owner of the loan. This is an essential piece of information a borrower is entitled to know and in which it should not have to investigate. Without clear identification of the owner of the loan it would make it hard for the average debtor to comprehend or understand the significance of the letter. 12. The reason behind the letter being sent to Steven Greco is still unclear as a simple search of the records of the Office of the City Register would reveal that the deed to the premises 19th in question was transferred on October 19, 2018 to 215 Street, LLC, and said Deed was recorded on November 1, 2018, over 70 days before U.S. Bank sent said letter. See Exhibit "C". 13. The above clearly shows that the Plaintiff had no way of knowing of the Assignment since U.S. Bank did not record assignment until after the 2019 quiet title action commenced and U.S. Bank sent the letter notifying of the assignment to the wrong party and said letter failed to disclose U.S. Bank as the owner of the loan. Bank of America took 19th no steps or actions to notify Street that they no longer had any interest in the mortgage. 14. The fact is that Bank of America, N.A., should have notified U.S. Bank as to the pending action since they were given notices several times the litigation of the 2019 quiet during title action. TIMELINE OF NOTICES GIVEN TO DEFENDANT Affirmation of Service of S& C 8/28/2019 Affirmation of Service of Notice of Motion 12/13/2019 Affirmation of Service of Notice of Settlement 02/11/2020 4 of 19 FILED: KINGS COUNTY CLERK 06/30/2023 09:52 AM INDEX NO. 522945/2021 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 06/30/2023 Notice of Entry 08/17/2020 15. U.S. Bank either wasn't notified by the Defendant Bank of America or failed to respond appropriately after being put on notice by Bank of America. Regardless this should not serve to prejudice the Plaintiff who has taken all the appropriate steps to litigate the matter on the merits and notified the appropriate Defendant. U.S. BANK DOES NOT HAVE A MERITORIOUS DEFENSE 16. If the Court in the 2019 quiet title action decides to entertain the Plaintiff's request and finds that U.S. Bank had an excusable default of lack of notice (it does not, as the Plaintiff has served the correct party and U.S. Bank at the very minimum had constructive notice of the action) it would still fail to show they have any meritorious defense as the statute of limitations to foreclose has expired under the newly enacted Foreclosure Abuse Prevention Act. Given the likelihood of the Court's denial of a request to vacate the default judgement and because the judge declined to sign the order to show cause a stay of the action will not be required. The De-acceleration letter. 17. U.S. Bank erroneously argues that its predecessor in interest sent a letter to the original borrower which stopped the statute of limitations from running and as such serves as a meritorious defense in the quiet title action. 18. Said de-acceleration letter dated December 15, 2014, was sent to the original borrower, Steven Greco, in an attempt to unilaterally revoke the acceleration of the Mortgage in Question and stop the statute of limitations from expiring. Said letter which was titled "Lender's Notice of Accelerate" lenders' Revocation Regarding Prior Election to references the foreclosure action under Index No.: 33551/08 and claims that the action was commenced on December 16, 2008. The letter states, inter alia, "... the lender revokes it's prior election to accelerate all sums hereby due 5 of 19 FILED: KINGS COUNTY CLERK 06/30/2023 09:52 AM INDEX NO. 522945/2021 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 06/30/2023 and under the aforementioned loan documents". It is very important to note that the de- owing limitations.1 acceleration letter was dated one day before the expiration of the six year statute of Action #2 2016 Quiet title action 19th 19. Unknown by street until now is the fact that the original borrower/prior owner of the premises, Steven Greco started a quiet title action on March 29, 2016 in the Supreme Court County of Kings. On May 3, 2016, said action was removed to the U.S. District Court for the Eastern District of New York under Index No. 16-CV-2196. In an Order dated April 25, 2017, Chief United States Magistrate Judge, Roanne L. Mann, granted Bank of America, N.A.'s Motion for Summary Judgment dismissing the action, holding that U.S. Bank's predecessor in interest, Bank of America, timely de-accelerated the mortgage due before the expiration of the statute of limitations. A copy of the Order Dated April 25, 2017 is annexed hereto as Exhibit "E". Noteworthy in this matter is that: (1) the motion granting summary judgment was unopposed for reasons unknown; (2) as discussed in the April 25, 2017 Order, the sole contention in the matter was whether the letter purportedly de-accelerating was mailed on a particular date thereby allowing lender to timely deaccelerate; (3) the Order was based on preceding judicial precedents that have been completely changed and overruled by the Foreclosure Abuse Prevention Act which applies retroactively and as discussed in further detail below said action does not affect any ruling by this Court or the Court in the 2019 quiet title action. Motion for Summary Judgment 20. In Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986), the Court 1 The issue as to whether the lender timely deaccelerated via the de-acceleration letter was litigated in Steven Greco's quiet title action of Greco v. Bank of America. Notably under the FAPA, which applies retroactively and amends CPLR Section 203(h), A lender cannot unilaterally stop the statute of limitations from running via de-acceleration letter. 6 of 19 FILED: KINGS COUNTY CLERK 06/30/2023 09:52 AM INDEX NO. 522945/2021 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 06/30/2023 of Appeals held: "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact... Once this showing has been made..., the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissable form sufficient to establish the existence of material issues of action." fact which require a trial of the 21. The Court of Appeals in Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980), held: "one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient". 22. "It is incumbent upon a [party] who opposes a motion for summary judgment to assemble, lay bare and reveal his proofs, in order to show that the matters set up in his [complaint] trial" are real and are capable of being established upon a Nel Taxi Corp. v. Eppingen 203 A.D.2d 438, 610 N.Y.S.2d 323 (2nd Dept. 1994) 23. An attorney affirmation of an attorney with no personal knowledge is without evidentiary value and thus unavailing. (Zuckerman v. City of New York, supra). The Foreclosure Abuse Prevention Act. 24. The Plaintiff cannot establish that it has a meritorious defense in the quiet title action as is required to vacate a default judgment because the statute of limitations to foreclose on the mortgage in question expired. Consequently, Defendant's motion for Judgment should Summary be granted on the same grounds. 25. The FAPA was designed to put an end to abusive practices by lenders such as multiple 7 of 19 FILED: KINGS COUNTY CLERK 06/30/2023 09:52 AM INDEX NO. 522945/2021 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 06/30/2023 foreclosures, and a disregard for judicial rulings, orders and calendar calls. Several existing statutes were amended, modified and/or substituted. 2.6 Additionally:said Act specifically states as follows in Section 10 of the act: this a t shall take effect immediately and shall apply to all actions commeiÃced bn aii instrument described under subdivision four of section tw hundi·ed thirteen of the civil practice laws and rules_1_n which a final judgment of foreclosure and sale has not been nforced. N LHGIS LEG. MEMO 821 (2022), 2022 Sess. Law News of NElegis. Memo Ch. 821 (McK1NNEY'S) 27. Such is the case here. No judgment of foreclosure and sale has as yet been sought or obtained. As such, these laws as amended clearly apply to this case. 28. The newly amended sections that are relevaut to this case are CPLR §§ 205(a) and 203(h). 29. Civil Practice law and Rules §205-(a) was added to read as follows: Termination of certain actions related to real property. (a) If an action upon an instrument described under subdivision four of section two hundred thirteen of this article is timely commenced and is terminated in any manner other than...for violation of any court order or individual part rules, for failure to comply with any court orders or by default due to non- scheduling appearance for a conference or at a calendar call... the original plaintiff... may commence a new action upon the same transaction... within six months following the termination...(emphasis supplied) 30. It is respectfully submitted that this section was added to stop lenders from violating, disregarding or failing to abide by court orders and scheduling dates, have their action dismissed and then just simply begin a new action and start over. intervenors' 31. A review of the public record reveals that is exactly what the proposed predecessor in interest did in this matter. 8 of 19 FILED: KINGS COUNTY CLERK 06/30/2023 09:52 AM INDEX NO. 522945/2021 NYSCEF DOC. NO. 76