Preview
FILED: KINGS COUNTY CLERK 11/23/2022 01:40 AM INDEX NO. 12592/2008
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/23/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
_________________________________________Ç
MIDFIRST BANK,
Plaintiff
-against-
Index #: 12592/08
SOLOMON MCKENZIE; ELMONT EQUITY, INC.;
ASSOCIATES FIRST CAPITAL CORPORATION
SUCCESSOR BY MERGER TO ASSOCIATES
CONSUMER DISCOUNT COMPANY; SANDRA
AKESSON as Administrator of the Estate of
CALVIN TRAILOR; JOSEPH SIMONELLI; NEW AFFIRMATION IN
YORK CITY DEPARTMENT OF FINANCE; NEW OPPOSITION
YORK CITY ENVIRONMENTAL CONTROL BOARD;
NEW YORK CITY TRANSIT ADJUDICATION
BUREAU; PEOPLE OF THE STATE OF NEW YORK;
SIDNEY MCLANEY; JOHN DOE (Said name being
Fictitious, it being the intention of plaintiff to
Designate any and all occupants of premises being
Foreclosed herein and any parties, corporation or
Entities, if any,having or claiming an interest or
lien upon the mortgaged premises).
Defendants.
______________________..________________________Ç
SANDRA AKESSON as Administrator of the Estate
Of CALVIN TRAYLOR and SIDNEY McLANEY,
Third-Party Plaintiffs, THIRD-PARTY
against- ACTION
FIRST RESIDENTIAL MORTGAGE SERVICE CORP.; Index #: 75206/10
IRWIN MORTGAGE CORPORATION; and MORTGAGE
ELETRONIC REGISTRATION SYSTEM, INC.
Third-Party Defendants.
_______________________________________________________Ç
SANDRA AKESSON as Administrator of the Estate
Of CALVIN TRAYLOR and SIDNEY McLANEY,
SECOND
Third-Party Plaintiffs THIRD-PARTY
-against- ACTION
HELLER and VERDI PC., RICHARD VERDI, ESQ.
And CRAIG HELLER, ESQ.
Third-Party Defendants.
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G. Wesley Simpson, Esq., an attorney duly admitted to practice in the courts of the State of
New York affirms the following subject to the penalties of perjury.
1. That I am associated with the Law Firm of G. WESLEY SIMPSON PC, attorneys
for defendants/ Third-Party Plaintiffs/Second-Third-Party Plaintiff SANDRA AKESSON as
Administrator of the Estate of CALVIN TRAYLOR and former for defendants/ Third-
attorney
Party Plaintiffs/Second-Third-Party Plaintiff SIDNEY McLANEY, deceased; and as such I have
personal knowledge of the facts and circumstances of this matter as contained in the files
maintained by my office, from personal conversations with defendants and from participation in the
proceedings heretofore had herein.
2. That this affirmation is submitted in opposition to plaintiff's motion to lift the stay in
this case.
3. It is respectfully submitted that plaintiff's motion be denied in its entirety.
RELEVANT FACTS AND PROCEDURAL HISTORY
4. Contrary to plaintiff's contention, the material facts of this case are in dispute as
defendants SANDRA AKESSON, Administrator of the Estate of CALVIN TRAYLOR, and
SIDNEY McLANEY instituted two third party actions seeking distinct reliefs.
5. That contrary to plaintiff's contention defendants SANDRA AKESSON,
Administrator of the Estate of CALVIN TRAYLOR, did not grant title of the property in question
to 216 Hancock Corp, this transfer of the property, and the Mortgage at issue was achieved by
fraud, misrepresentation and undue influence. Moreover, there is an action commenced in Kings
County Supreme Court, Index # 513046/2019, relative to 216 Hancock Corp's fraudulent transfer
decedents'
of property. See Summons and Complaint for Kings County Index # 513046/2019
attached hereto as Exhibit "A".
6. It must be noted that defendant Sidney McLaney was a direct party to the fraudulent
transactions, contracts and agreements involving defendant, Solomon McKenzie. Mr. McLaney,
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during his lifetime, was the fee owner of the property in question. See copy of title between
"B"
Traylor and McLaney attached as Exhibit in plaintiff's motion. Solomon McKenzie acquired
the property by fraud, misrepresentation, undue influence and or duress. Calvin Traylor and Sidney
McLaney commenced an action against Solomon Mckenzie in Kings County Supreme Court, under
the Index Number 13391/2005, alleging same; Mckenzie defaulted and a default judgment order
was issued. See Summons and Complaint for Kings County Index # 13391/2005 and default
judgment order against Solomon Mckenzie attached hereto as Exhibit "B". That as a default
judgment was issued, Solomon McKenzie admitted all the allegations in the Summons and
Complaint. See Silberstein v Presbyterian Hosp. in NY, 96 AD2d 1096, 1096 [2d Dept 1983] ["a
default admits all factual allegations of the complaint and all reasonable inferences 1-
therefrom"];
21 Weinstein-Korn-Miller, CPLR Manual§ 21.09 ["When the defendant defaults, all the factual
allegations of the complaint, and the reasonable inferences to be drawn from them, are considered
admitted insofar as they relate to liability."].) This further legitimizes Sandra Akesson's,
Administrator for the Estate of Calvin Traylor, and Sidney McLaney's claims of fraud in their
third-party actions to the case at bar. The parties in the third party actions were involved in the same
fraudulent transaction covered in Index # 1339/2005. This also reinforces the argument that this
case must be stayed until a representative is appointed to prosecute Sidney McLaney's, deceased,
third-party action and protect the estate interest in this matter.
7. Therefore, as there are several questions of fact regarding the legitimacy of the
mortgage and transfer documents, involving Solomon Mckenzie, Calvin Traylor and Sidney
McLaney that are essential to defendant Melaney's claims. Defendants herein have always claimed
that these mortgage and transfer documents were fraudulent, however plaintiff has never provided
defendants a full unredacted copy of the document.
8. That furthermore plaintiff appeared for a deposition and produced witness Josh Mills
who testified that plaintiff has an acquisition department and has a separate file for this case that
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was never produced to defendants. See the 1/28/20 EBT of Plaintiff at pages 85-88 at NYSCEF
document # 64. That defendants requested these documents and requested to depose a witness who
has knowledge of the mortgage acquisition; however, plaintiff refused to provide the discovery and
produced the same witness who had no knowledge of: 1) MidFirst's mortgage acquisition process in
general, or specifically of this particular mortgage; 2) how MidFirst received information about the
subject mortgage; or 3) the investigation MidFirst conducted prior to acquiring the subject
defendants'
mortgage. This information is material and necessary to defense of the action, as
defendants are claiming mortgage fraud. Furthermore, defendants specifically requested that
plaintiff produce a witness with knowledge of the acquisition before the last deposition, however
plaintiff produced the same witness. Moreover, this information is crucial for defendant Sidney
McLaney's personal claims in defense of the main action and in the two third party actions where
defendant Sidney McLaney, deceased, is a plaintiff.
9. The parties brought several discovery motions regarding the above discovery
dispute, however this Court denied all motions and directed plaintiff to file the Note of Issue within
60 days. See Orders dated June 1, 2022 at NYSCEF document #s 82-23.
10. Defendants filed Notices of Appeal of the June 1, 2022 Orders on July 12, 2022, see
NYSCEF document #s 89-90.
11. That defendant Sidney McLaney passed away on May 20, 2022, and when the
undersigned received the death certificate a Notice of Demise was promptly filed on July 25, 2022
and this case was marked stayed. See NYSCEF document # 91.
PLAINTIFF'S MOTION IS PROCEDURALLY DEFECTIVE
12. Plaintiff's motion is procedurally defective as it does not include a certification
pursuant to Uniform Civil Rules 22 NYCRR Section 202.8-b(c).
13. 22 NYCRR Section 202.8-b(c) states:
(c) Every brief, memorandum, affirmation, and affidavit which was prepared by use
4 of 8
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of a computer shall include on a page attached to the end of the applicable document,
a certification by the counsel who has filed the document setting forth the number of
words in the document and certifying that the document complies with the word count
limit. The counsel compliance on the word count of the word-
certifying may rely
processing system used to prepare the document.
14. That plaintiff's motion did not contain such certification therefore it is procedurally
defective and this court should dismiss it in its entirety.
DEFENDANT SIDNEY MCLANEY DEATH AFFECTS THE MERITS OF THIS CASE
AND AS A RESULT HIS DEATH NECESSITATES AN AUTOMATIC STAY
15. Plaintiff contends that defendant Sidney Melaney's death does not affect the merits
of this case, therefore "there is no need for strict adherence to the requirement that proceedings be
stayed substitution". See Bova v Vinciguerra, 139 A.D.2d 526 N.Y.S.2d 673-
during 797, 799, 671,
74 (3rd Dept. 1988). Plaintiff's contention is false and without merit.
16. As stated above, there are several material facts in dispute that resolve around the
contracts, agreements and deed transfers defendants Calvin Traylor and Sidney McLaney allegedly
entered into. Specifically, Sidney McLaney's documents depicting the fraudulent transfer to
Solomon Mckenzie is material to the prosecution of Sidney McLaney's third-party action and the
defense of this action. That this case must be stayed so a representative can be appointed for Sidney
McLaney's Estate to ensure that his interest in his third party actions are preserved and vigorously
prosecuted and a defense to plaintiff's action mounted to prevent a judgment against decedent's
estate.
17. Furthermore, Sidney McLaney is the last legitimate owner of the property in
question and as such his heirs do have a legitimate interest in the property or to the equity illegally
taken by plaintiff and Solomon Mckenzie. Sidney McLaney also has an interest in the third-party
actions since he shares in any award with Sandra Akesson, Administrator for Calvin Traylor.
18. Additionally, death of a party revokes his or her attorney's authority to act on his/her
(1"
behalf. See, wisdom v Wisdom, 111 AD2d 13 Dept. 1985). The Appellate Court in Velasquez v
5 of 8
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(2nd
Katz, 42 AD3d 566 Dept. 200 7) ruled "death of a client automatically terminates the attorney
relationship."
client The court further ruled that the former attorney of decedent had neither the
Will."
obligation nor the authority to probate decedent's See also Gonzalez v Ford Motor Co., 295
(2nd
AD2d 474 Dept. 2002) in which the Appellate Court ruled "upon the father's death, the law
action."
firm representing him no longer had any authority to act on the father's behalf in this
Therefore, when Sidney McLaney passed the undersigned's attorney client relationship with him
automatically extinguished, thus if this case were to resume without a representative being
substituted and counsel retained to represent the estate in this matter then no one, including the
undersigned, will be able to advocate Sidney McLaney's claims, which would be deemed abandon
and dismissed. This is severely prejudicial to Sidney McLaney's estate and the Court should, thus,
deny plaintiff's motion in its entirety.
17. Moreover, plaintiff's contention that McLaney's death does not affect the merits of
the case because the property will not revert to him or his estate under any scenario is without
merit. As stated above, defendant McLaney was the legitimate owner of this property during the
fraudulent transfer to McKenzie. If it is shown that the McLaney to McKenzie deed is null and void
the premises lawfully reverts to McLaney. To protect this and other interests a representative of
decedent's estate is imperative. Also, the prosecution McLaney's fraud claims are essential to the
resolution of plaintiff's foreclosure action. By demonstrating the transfer was fraudulent, the
mortgage becomes detached from the premises which is no longer a legal security for the mortgage.
The mortgage itself also fails since it was obtained through misrepresentations.
18. That based on the foregoing, plaintiff's motion should be denied in its entirety.
WHEREFORE, it is respectfully submitted that the relief prayed for herein, be denied in all
respects and together with such additional and different relief as this court deems/to be just and
proper.
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Dated: Brooklyn, New York
November 22, 2022 ES Y SIMPSON PC
ttorn y for defendants: SANDRA AKESSON as
Administrator of the Estate Of CALVIN TRAYLOR and
former attorney for SIDNEY McLANEY
1016 Ralph Avenue
Brooklyn, New York 11236
718 345 8213
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NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/23/2022
Index Number 12592 Year 2008
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS:
MIDFIRST BANK,
Plaintiff,
-against-
SOLOMON MCKENZIE; ELMONT EQUITY, INC.; ASSOCIATES FIRST CAPITAL CORPORATION
SUCCESSOR BY MERGER TO ASSOCIATES CONSUMER DISCOUNT COMPANY; SANDRA
AKESSON as Administrator of the Estate of
CALVIN TRAILOR; JOSEPH SIMONELLI; NEW
Defendant(s).
AND THIRD-PARTY ACTIONS
AFFIRMATION IN OPPOSITION
G. WESLEY SIMPSON, P.C.
Attorney for plaintiff(s)
1016 Ralph Avenue
Brooklyn, New York 11236
(718) 345 8213
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney duly admitted to practice law in the
State of New York, certifies that, upon information and belief based upon reasonable inquiry, the
contents contained in the annexed document are not frivolous.
Dated: -----------------------------------------------
G. WESLEY SIMPSON, P.C.
Service of the within is hereby
Admitted.
Dated: -----------------------------------------------------
Attorney(s) for
PLEASE TAKE NOTICE
Notice of That the within is a (Certified) true copy of an Order entered in the office
Entry of the clerk of the within named Court on the day of
Notice of that an Order of which the within is a true copy will be presented for
Settlement settlement to the Hon. one of the judges of the within named Court, at
on the day of , at 9:30 a.m.
G. WESLEY SIMPSON, P.C.
Attorney for plaintiff(s)
1016 Ralph Avenue
Brooklyn, New York 11236
(718) 345 8213
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Preview
FILED: KINGS COUNTY CLERK 11/23/2022 01:40 AM INDEX NO. 12592/2008 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/23/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS _________________________________________Ç MIDFIRST BANK, Plaintiff -against- Index #: 12592/08 SOLOMON MCKENZIE; ELMONT EQUITY, INC.; ASSOCIATES FIRST CAPITAL CORPORATION SUCCESSOR BY MERGER TO ASSOCIATES CONSUMER DISCOUNT COMPANY; SANDRA AKESSON as Administrator of the Estate of CALVIN TRAILOR; JOSEPH SIMONELLI; NEW AFFIRMATION IN YORK CITY DEPARTMENT OF FINANCE; NEW OPPOSITION YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; PEOPLE OF THE STATE OF NEW YORK; SIDNEY MCLANEY; JOHN DOE (Said name being Fictitious, it being the intention of plaintiff to Designate any and all occupants of premises being Foreclosed herein and any parties, corporation or Entities, if any,having or claiming an interest or lien upon the mortgaged premises). Defendants. ______________________..________________________Ç SANDRA AKESSON as Administrator of the Estate Of CALVIN TRAYLOR and SIDNEY McLANEY, Third-Party Plaintiffs, THIRD-PARTY against- ACTION FIRST RESIDENTIAL MORTGAGE SERVICE CORP.; Index #: 75206/10 IRWIN MORTGAGE CORPORATION; and MORTGAGE ELETRONIC REGISTRATION SYSTEM, INC. Third-Party Defendants. _______________________________________________________Ç SANDRA AKESSON as Administrator of the Estate Of CALVIN TRAYLOR and SIDNEY McLANEY, SECOND Third-Party Plaintiffs THIRD-PARTY -against- ACTION HELLER and VERDI PC., RICHARD VERDI, ESQ. And CRAIG HELLER, ESQ. Third-Party Defendants. 1 of 8 FILED: KINGS COUNTY CLERK 11/23/2022 01:40 AM INDEX NO. 12592/2008 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/23/2022 G. Wesley Simpson, Esq., an attorney duly admitted to practice in the courts of the State of New York affirms the following subject to the penalties of perjury. 1. That I am associated with the Law Firm of G. WESLEY SIMPSON PC, attorneys for defendants/ Third-Party Plaintiffs/Second-Third-Party Plaintiff SANDRA AKESSON as Administrator of the Estate of CALVIN TRAYLOR and former for defendants/ Third- attorney Party Plaintiffs/Second-Third-Party Plaintiff SIDNEY McLANEY, deceased; and as such I have personal knowledge of the facts and circumstances of this matter as contained in the files maintained by my office, from personal conversations with defendants and from participation in the proceedings heretofore had herein. 2. That this affirmation is submitted in opposition to plaintiff's motion to lift the stay in this case. 3. It is respectfully submitted that plaintiff's motion be denied in its entirety. RELEVANT FACTS AND PROCEDURAL HISTORY 4. Contrary to plaintiff's contention, the material facts of this case are in dispute as defendants SANDRA AKESSON, Administrator of the Estate of CALVIN TRAYLOR, and SIDNEY McLANEY instituted two third party actions seeking distinct reliefs. 5. That contrary to plaintiff's contention defendants SANDRA AKESSON, Administrator of the Estate of CALVIN TRAYLOR, did not grant title of the property in question to 216 Hancock Corp, this transfer of the property, and the Mortgage at issue was achieved by fraud, misrepresentation and undue influence. Moreover, there is an action commenced in Kings County Supreme Court, Index # 513046/2019, relative to 216 Hancock Corp's fraudulent transfer decedents' of property. See Summons and Complaint for Kings County Index # 513046/2019 attached hereto as Exhibit "A". 6. It must be noted that defendant Sidney McLaney was a direct party to the fraudulent transactions, contracts and agreements involving defendant, Solomon McKenzie. Mr. McLaney, 2 of 8 FILED: KINGS COUNTY CLERK 11/23/2022 01:40 AM INDEX NO. 12592/2008 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/23/2022 during his lifetime, was the fee owner of the property in question. See copy of title between "B" Traylor and McLaney attached as Exhibit in plaintiff's motion. Solomon McKenzie acquired the property by fraud, misrepresentation, undue influence and or duress. Calvin Traylor and Sidney McLaney commenced an action against Solomon Mckenzie in Kings County Supreme Court, under the Index Number 13391/2005, alleging same; Mckenzie defaulted and a default judgment order was issued. See Summons and Complaint for Kings County Index # 13391/2005 and default judgment order against Solomon Mckenzie attached hereto as Exhibit "B". That as a default judgment was issued, Solomon McKenzie admitted all the allegations in the Summons and Complaint. See Silberstein v Presbyterian Hosp. in NY, 96 AD2d 1096, 1096 [2d Dept 1983] ["a default admits all factual allegations of the complaint and all reasonable inferences 1- therefrom"]; 21 Weinstein-Korn-Miller, CPLR Manual§ 21.09 ["When the defendant defaults, all the factual allegations of the complaint, and the reasonable inferences to be drawn from them, are considered admitted insofar as they relate to liability."].) This further legitimizes Sandra Akesson's, Administrator for the Estate of Calvin Traylor, and Sidney McLaney's claims of fraud in their third-party actions to the case at bar. The parties in the third party actions were involved in the same fraudulent transaction covered in Index # 1339/2005. This also reinforces the argument that this case must be stayed until a representative is appointed to prosecute Sidney McLaney's, deceased, third-party action and protect the estate interest in this matter. 7. Therefore, as there are several questions of fact regarding the legitimacy of the mortgage and transfer documents, involving Solomon Mckenzie, Calvin Traylor and Sidney McLaney that are essential to defendant Melaney's claims. Defendants herein have always claimed that these mortgage and transfer documents were fraudulent, however plaintiff has never provided defendants a full unredacted copy of the document. 8. That furthermore plaintiff appeared for a deposition and produced witness Josh Mills who testified that plaintiff has an acquisition department and has a separate file for this case that 3 of 8 FILED: KINGS COUNTY CLERK 11/23/2022 01:40 AM INDEX NO. 12592/2008 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/23/2022 was never produced to defendants. See the 1/28/20 EBT of Plaintiff at pages 85-88 at NYSCEF document # 64. That defendants requested these documents and requested to depose a witness who has knowledge of the mortgage acquisition; however, plaintiff refused to provide the discovery and produced the same witness who had no knowledge of: 1) MidFirst's mortgage acquisition process in general, or specifically of this particular mortgage; 2) how MidFirst received information about the subject mortgage; or 3) the investigation MidFirst conducted prior to acquiring the subject defendants' mortgage. This information is material and necessary to defense of the action, as defendants are claiming mortgage fraud. Furthermore, defendants specifically requested that plaintiff produce a witness with knowledge of the acquisition before the last deposition, however plaintiff produced the same witness. Moreover, this information is crucial for defendant Sidney McLaney's personal claims in defense of the main action and in the two third party actions where defendant Sidney McLaney, deceased, is a plaintiff. 9. The parties brought several discovery motions regarding the above discovery dispute, however this Court denied all motions and directed plaintiff to file the Note of Issue within 60 days. See Orders dated June 1, 2022 at NYSCEF document #s 82-23. 10. Defendants filed Notices of Appeal of the June 1, 2022 Orders on July 12, 2022, see NYSCEF document #s 89-90. 11. That defendant Sidney McLaney passed away on May 20, 2022, and when the undersigned received the death certificate a Notice of Demise was promptly filed on July 25, 2022 and this case was marked stayed. See NYSCEF document # 91. PLAINTIFF'S MOTION IS PROCEDURALLY DEFECTIVE 12. Plaintiff's motion is procedurally defective as it does not include a certification pursuant to Uniform Civil Rules 22 NYCRR Section 202.8-b(c). 13. 22 NYCRR Section 202.8-b(c) states: (c) Every brief, memorandum, affirmation, and affidavit which was prepared by use 4 of 8 FILED: KINGS COUNTY CLERK 11/23/2022 01:40 AM INDEX NO. 12592/2008 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/23/2022 of a computer shall include on a page attached to the end of the applicable document, a certification by the counsel who has filed the document setting forth the number of words in the document and certifying that the document complies with the word count limit. The counsel compliance on the word count of the word- certifying may rely processing system used to prepare the document. 14. That plaintiff's motion did not contain such certification therefore it is procedurally defective and this court should dismiss it in its entirety. DEFENDANT SIDNEY MCLANEY DEATH AFFECTS THE MERITS OF THIS CASE AND AS A RESULT HIS DEATH NECESSITATES AN AUTOMATIC STAY 15. Plaintiff contends that defendant Sidney Melaney's death does not affect the merits of this case, therefore "there is no need for strict adherence to the requirement that proceedings be stayed substitution". See Bova v Vinciguerra, 139 A.D.2d 526 N.Y.S.2d 673- during 797, 799, 671, 74 (3rd Dept. 1988). Plaintiff's contention is false and without merit. 16. As stated above, there are several material facts in dispute that resolve around the contracts, agreements and deed transfers defendants Calvin Traylor and Sidney McLaney allegedly entered into. Specifically, Sidney McLaney's documents depicting the fraudulent transfer to Solomon Mckenzie is material to the prosecution of Sidney McLaney's third-party action and the defense of this action. That this case must be stayed so a representative can be appointed for Sidney McLaney's Estate to ensure that his interest in his third party actions are preserved and vigorously prosecuted and a defense to plaintiff's action mounted to prevent a judgment against decedent's estate. 17. Furthermore, Sidney McLaney is the last legitimate owner of the property in question and as such his heirs do have a legitimate interest in the property or to the equity illegally taken by plaintiff and Solomon Mckenzie. Sidney McLaney also has an interest in the third-party actions since he shares in any award with Sandra Akesson, Administrator for Calvin Traylor. 18. Additionally, death of a party revokes his or her attorney's authority to act on his/her (1" behalf. See, wisdom v Wisdom, 111 AD2d 13 Dept. 1985). The Appellate Court in Velasquez v 5 of 8 FILED: KINGS COUNTY CLERK 11/23/2022 01:40 AM INDEX NO. 12592/2008 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/23/2022 (2nd Katz, 42 AD3d 566 Dept. 200 7) ruled "death of a client automatically terminates the attorney relationship." client The court further ruled that the former attorney of decedent had neither the Will." obligation nor the authority to probate decedent's See also Gonzalez v Ford Motor Co., 295 (2nd AD2d 474 Dept. 2002) in which the Appellate Court ruled "upon the father's death, the law action." firm representing him no longer had any authority to act on the father's behalf in this Therefore, when Sidney McLaney passed the undersigned's attorney client relationship with him automatically extinguished, thus if this case were to resume without a representative being substituted and counsel retained to represent the estate in this matter then no one, including the undersigned, will be able to advocate Sidney McLaney's claims, which would be deemed abandon and dismissed. This is severely prejudicial to Sidney McLaney's estate and the Court should, thus, deny plaintiff's motion in its entirety. 17. Moreover, plaintiff's contention that McLaney's death does not affect the merits of the case because the property will not revert to him or his estate under any scenario is without merit. As stated above, defendant McLaney was the legitimate owner of this property during the fraudulent transfer to McKenzie. If it is shown that the McLaney to McKenzie deed is null and void the premises lawfully reverts to McLaney. To protect this and other interests a representative of decedent's estate is imperative. Also, the prosecution McLaney's fraud claims are essential to the resolution of plaintiff's foreclosure action. By demonstrating the transfer was fraudulent, the mortgage becomes detached from the premises which is no longer a legal security for the mortgage. The mortgage itself also fails since it was obtained through misrepresentations. 18. That based on the foregoing, plaintiff's motion should be denied in its entirety. WHEREFORE, it is respectfully submitted that the relief prayed for herein, be denied in all respects and together with such additional and different relief as this court deems/to be just and proper. 6 of 8 FILED: KINGS COUNTY CLERK 11/23/2022 01:40 AM INDEX NO. 12592/2008 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/23/2022 Dated: Brooklyn, New York November 22, 2022 ES Y SIMPSON PC ttorn y for defendants: SANDRA AKESSON as Administrator of the Estate Of CALVIN TRAYLOR and former attorney for SIDNEY McLANEY 1016 Ralph Avenue Brooklyn, New York 11236 718 345 8213 7 of 8 FILED: KINGS COUNTY CLERK 11/23/2022 01:40 AM INDEX NO. 12592/2008 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/23/2022 Index Number 12592 Year 2008 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: MIDFIRST BANK, Plaintiff, -against- SOLOMON MCKENZIE; ELMONT EQUITY, INC.; ASSOCIATES FIRST CAPITAL CORPORATION SUCCESSOR BY MERGER TO ASSOCIATES CONSUMER DISCOUNT COMPANY; SANDRA AKESSON as Administrator of the Estate of CALVIN TRAILOR; JOSEPH SIMONELLI; NEW Defendant(s). AND THIRD-PARTY ACTIONS AFFIRMATION IN OPPOSITION G. WESLEY SIMPSON, P.C. Attorney for plaintiff(s) 1016 Ralph Avenue Brooklyn, New York 11236 (718) 345 8213 Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney duly admitted to practice law in the State of New York, certifies that, upon information and belief based upon reasonable inquiry, the contents contained in the annexed document are not frivolous. Dated: ----------------------------------------------- G. WESLEY SIMPSON, P.C. Service of the within is hereby Admitted. Dated: ----------------------------------------------------- Attorney(s) for PLEASE TAKE NOTICE Notice of That the within is a (Certified) true copy of an Order entered in the office Entry of the clerk of the within named Court on the day of Notice of that an Order of which the within is a true copy will be presented for Settlement settlement to the Hon. one of the judges of the within named Court, at on the day of , at 9:30 a.m. G. WESLEY SIMPSON, P.C. Attorney for plaintiff(s) 1016 Ralph Avenue Brooklyn, New York 11236 (718) 345 8213 8 of 8