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FILED: ORANGE COUNTY CLERK 11/14/2023 11:43 PM INDEX NO. 008253-2012
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
Index No. 008253-2012
Wells Fargo Bank, National Association,
successor by merger to DEFENDANT COUNSEL’S
Wells Fargo Bank Minnesota, National Association, REPLY AFFIRMATION IN FURTHER
as Indenture Trustee for SUPPORT OF ORDER TO SHOW CAUSE
GMACM Home Equity Loan Trust 2002-HE3,
Plaintiff,
v.
JoAnn Russo, et al.,
Defendants.
Oliver Budde, an attorney duly admitted to practice law in the State of New York, affirms the
following under penalty of perjury pursuant to New York Civil Practice Law and Rules (“CPLR”)
2106:
1. I am the attorney for defendant JoAnn Russo (“Defendant”). I submit this affirmation:
• In further support of Defendant’s 10/23/23 application by order to show cause (NYSCEF
#57 et seq.; the “Reargument Application”), seeking a stay (issued on 10/25/23; see
NYSCEF #60) and thereafter an Order; and
• In reply to the 11/13/23 opposition to the Reargument Application submitted by the
plaintiff identified in the caption above (“Plaintiff”), as contained in an attorney
affirmation (NYSCEF #61; “P’s Affirmation”) and memorandum of law (“P's Memo
(NYSCEF #62)”).
2. This affirmation includes an integrated legal argument; there is no separate Memorandum
of Law. Capitalized terms used but not defined herein have the meanings ascribed to them
in my 10/23/23 affirmation in support of the Reargument Application (NYSCEF #58; “D’s
Initial Affirmation”).
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Reply Argument
I. Defendant’s Original Application for Dismissal Was Adequately Formed.
3. Eliciting a strong sense of déjà vu, Plaintiff’s Point I makes much of the fact that in
Defendant’s initial 5/31/23 application by order to show cause seeking dismissal based on
FAPA (NYSCEF #23 et seq.; the “Original Application”), Defendant moved under CPLR
5015(a) rather than CPLR 2221. But Plaintiff already made this argument in its counsel’s
6/7/23 memorandum of law in opposition to the Original Application; compare the instant
P's Memo at numbered pp3-5, pdf pp7-9 to Plaintiff’s earlier 6/7/23 memorandum of law
(NYSCEF #51) at numbered pp2-4, pdf pp6-8.
4. However, the Court’s subsequent 9/22/23 FAPA Order fully and completely ignored
Plaintiff’s 5015(a) versus 2221 argument, saying absolutely nothing about CPLR 2221 and
speaking only in terms of CPLR 5015(a). The Court should ignore this rehashed argument.
II. Defendant’s Prior Motions to Dismiss Based on CPLR 3211(a)(4) Do Not Prevent the
Court from Dismissing this Case Based on FAPA.
5. In a further recycling of a prior argument, Plaintiff once more argues at length that
Defendant’s prior motions to dismiss, each denied by the Court, are law of the case and the
last word as to dismissal, preventing this Court from now dismissing based on FAPA.
Compare Plaintiff’s Point II.B in P's Memo at numbered pp8-10, pdf pp12-14 to Plaintiff’s
earlier 6/7/23 memorandum of law (NYSCEF #51) at numbered pp5-6, pdf pp9-10.
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NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/14/2023
6. And just as with Plaintiff’s CPLR 5015(a) versus CPLR 2221 argument, the FAPA Order
essentially ignored Plaintiff’s law of the case argument,1 and the Court is urged to do the
same now.
III. While A Residential Foreclosure Case is Active, It Is Never Too Late for a Motion to
Dismiss Based on an RPAPL Article 13 Condition Precedent.
7. Plaintiff’s one argument that may have at least some colorable substance to it is buried at
the end of Plaintiff’s Point I: that because Defendant did not raise a FAPA-based argument
in her 1/9/23 cross-motion to dismiss (no NYSCEF link available), which was based on RPAPL
1304 and the now overruled Kessler holding that required strict compliance with such
notice statute, she cannot make a FAPA-based argument now. In Plaintiff’s words:
[T]he issue of whether RPAPL 1301(3) applies was not before the Court on
the prior motion sequence—Plaintiff’s December 21, 2022 motion for a
Judgment of Foreclosure and Sale and Defendant’s January 9, 2023 cross-
motion to renew summary judgment [and dismiss based on Kessler]. See [the
Court’s 3/23/23 Decision and Order at] NYSCEF Doc. No. 4. Defendant filed
her cross-motion to renew after FAPA’s December 30, 2022 enactment and
elected to raise a challenge to the foreclosure solely based on RPAPL 1304.
See id. In her June 2023 Order to Show Cause (upon which she now seeks
reargument), Defendant failed to address why she did not raise FAPA on the
prior cross-motion to renew summary judgment [and dismiss based on
Kessler]. Thus, because Defendant failed to preserve the issue of RPAPL
1301(3) in the prior motion practice, the Court need not consider it now.
P's Memo at numbered p4, pdf p8, middle of page.
1 The FAPA Order on p5 acknowledges that Plaintiff made a law of the case argument, but
does not further engage with it: “The Plaintiff argues, inter alia, that various relief is barred
by law of the case and that FAPA is not applicable to the facts[.]”
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8. For the Court’s information, Defendant’s counsel, a solo practitioner, did not have time to
first study and then incorporate into his various clients’ various arguments the import and
effect of newly enacted FAPA, particularly over a year-end holiday break where he was
already deep into drafting Defendant’s at-that-moment fully dispositive cross-motion based
on Kessler (which had not yet been overturned by the Court of Appeals), which cross-
motion was filed on 1/9/23, just ten days after FAPA was signed into law. FAPA
enlightenment came later.
9. But the speed of counsel’s uptake as to FAPA has no bearing here. When the Legislature
passed FAPA and amended the condition precedent requirements of RPAPL 1301, it
declared that all RPAPL Article 13 condition precedents are intended to be sacrosanct
(emphasis added):
The use of the imperative “shall” with respect to the requirement to
obtain prior leave of court connotes a mandatory requirement ….
Yet, the mandate of the subdivision has been whittled away by judicial
interpretation. The clarification of condition precedent language is to
ensure RPAPL 1301 (3) is afforded the same strict compliance standard
as its kindred RPAPL Article 13 condition precedents ….
Senate Memo, behind the FAPA law text attached as Exhibit O (NYSCEF #39) to Def.
Counsel’s FAPA Affirmation, pdf pp6-21, at numbered pp4-5.
10. Strict compliance with the condition precedent in RPAPL 1304 can be raised during a
foreclosure action at any time, and the condition precedent in RPAPL 1301(3) is intended to
enjoy the same privilege. As to RPAPL 1304, there are any number of appellate court
decisions holding that a defense under RPAPL 1304 may be raised at any time until the entry
of a final judgment of foreclosure and sale, even if the borrower did not raise RPAPL 1304 in
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an answer or prior motion practice. See, e.g., US Bank NA v Maioriello, 207 AD3d 428, 428
(1st Dept 2022); Wells Fargo Bank, NA v Davidson, 202 AD3d 880, 882 (2d Dept 2022); US
Bank NA v Krakoff, 199 AD3d 859, 862 (2d Dept 2021).
11. In similar fashion, the Legislature has expressed its clear intention for revised RPAPL 1301 to
be treated likewise (emphasis added):
Accordingly, this bill amends certain statutes and rules to clarify the
existing law and overturn certain court decisions to ensure the laws of
this state apply equally to all litigants, including those currently
involved in mortgage foreclosure actions, in order to ensure that parties
purporting to sue on mortgage debt are bound by the same statutes of
limitations that bind all other litigants.
…
The gravity of the aforementioned problem, and the legislature's
determination to remedy same, is illustrated by the determination of
the legislature in passing this bill to apply to all actions governed by
CPLR 213 (4) [including this action] in which a final judgment of
foreclosure and sale has not yet been enforced.
…
Section 10 contains the effective date and makes it clear that this
legislation will apply immediately, and will apply to all such actions
commenced where a final judgment of foreclosure and sale has not
been enforced.
Assembly Memo, behind the FAPA law text attached as Exhibit O (NYSCEF #39) to
Def. Counsel’s FAPA Affirmation, pdf pp22-23.
* * *
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FILED: ORANGE COUNTY CLERK 11/14/2023 11:43 PM INDEX NO. 008253-2012
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/14/2023
WHEREFORE, Defendant respectfully asks the Court to enter an Order granting the relief
requested.
Dated: 11/14/23
Oliver Budde
Law Office of Oliver Budde
Attorney for Defendant
600 Mamaroneck Ave Ste 400
Harrison, NY 10528-1613
646-491-0818
o_budde@live.com
To:
Attorneys for Plaintiff
Evan N. Soyer, Esq.
Hinshaw & Culbertson LLP
800 Third Avenue, 13th Floor
New York, NY 10022
212-655-3859
esoyer@hinshawlaw.com
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FILED: ORANGE COUNTY CLERK 11/14/2023 11:43 PM INDEX NO. 008253-2012
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/14/2023
Certification Pursuant to 22 NYCRR 202.8b(c)
1. The foregoing document was drafted in Microsoft Word format, then converted to a .pdf
file before being uploaded to NYSCEF.
2. A proportionally spaced typeface was used, as follows:
a. Typeface name: Calibri
b. Type size: 12-point
c. Line spacing: Double, except as otherwise permitted.
3. There are 1,454 words in this document (according to a computer count, and versus an
imposed maximum of 7,000 words (4,200 words for reply papers)), inclusive of any point
headings and footnotes, and here also inclusive of the caption, signature block, and this
certification.
Dated: 11/14/23
Oliver Budde
Law Office of Oliver Budde
Attorney for Defendant
600 Mamaroneck Ave Ste 400
Harrison, NY 10528-1613
646-491-0818
o_budde@live.com
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Preview
FILED: ORANGE COUNTY CLERK 11/14/2023 11:43 PM INDEX NO. 008253-2012 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE Index No. 008253-2012 Wells Fargo Bank, National Association, successor by merger to DEFENDANT COUNSEL’S Wells Fargo Bank Minnesota, National Association, REPLY AFFIRMATION IN FURTHER as Indenture Trustee for SUPPORT OF ORDER TO SHOW CAUSE GMACM Home Equity Loan Trust 2002-HE3, Plaintiff, v. JoAnn Russo, et al., Defendants. Oliver Budde, an attorney duly admitted to practice law in the State of New York, affirms the following under penalty of perjury pursuant to New York Civil Practice Law and Rules (“CPLR”) 2106: 1. I am the attorney for defendant JoAnn Russo (“Defendant”). I submit this affirmation: • In further support of Defendant’s 10/23/23 application by order to show cause (NYSCEF #57 et seq.; the “Reargument Application”), seeking a stay (issued on 10/25/23; see NYSCEF #60) and thereafter an Order; and • In reply to the 11/13/23 opposition to the Reargument Application submitted by the plaintiff identified in the caption above (“Plaintiff”), as contained in an attorney affirmation (NYSCEF #61; “P’s Affirmation”) and memorandum of law (“P's Memo (NYSCEF #62)”). 2. This affirmation includes an integrated legal argument; there is no separate Memorandum of Law. Capitalized terms used but not defined herein have the meanings ascribed to them in my 10/23/23 affirmation in support of the Reargument Application (NYSCEF #58; “D’s Initial Affirmation”). 1 of 7 FILED: ORANGE COUNTY CLERK 11/14/2023 11:43 PM INDEX NO. 008253-2012 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/14/2023 Reply Argument I. Defendant’s Original Application for Dismissal Was Adequately Formed. 3. Eliciting a strong sense of déjà vu, Plaintiff’s Point I makes much of the fact that in Defendant’s initial 5/31/23 application by order to show cause seeking dismissal based on FAPA (NYSCEF #23 et seq.; the “Original Application”), Defendant moved under CPLR 5015(a) rather than CPLR 2221. But Plaintiff already made this argument in its counsel’s 6/7/23 memorandum of law in opposition to the Original Application; compare the instant P's Memo at numbered pp3-5, pdf pp7-9 to Plaintiff’s earlier 6/7/23 memorandum of law (NYSCEF #51) at numbered pp2-4, pdf pp6-8. 4. However, the Court’s subsequent 9/22/23 FAPA Order fully and completely ignored Plaintiff’s 5015(a) versus 2221 argument, saying absolutely nothing about CPLR 2221 and speaking only in terms of CPLR 5015(a). The Court should ignore this rehashed argument. II. Defendant’s Prior Motions to Dismiss Based on CPLR 3211(a)(4) Do Not Prevent the Court from Dismissing this Case Based on FAPA. 5. In a further recycling of a prior argument, Plaintiff once more argues at length that Defendant’s prior motions to dismiss, each denied by the Court, are law of the case and the last word as to dismissal, preventing this Court from now dismissing based on FAPA. Compare Plaintiff’s Point II.B in P's Memo at numbered pp8-10, pdf pp12-14 to Plaintiff’s earlier 6/7/23 memorandum of law (NYSCEF #51) at numbered pp5-6, pdf pp9-10. 2 2 of 7 FILED: ORANGE COUNTY CLERK 11/14/2023 11:43 PM INDEX NO. 008253-2012 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/14/2023 6. And just as with Plaintiff’s CPLR 5015(a) versus CPLR 2221 argument, the FAPA Order essentially ignored Plaintiff’s law of the case argument,1 and the Court is urged to do the same now. III. While A Residential Foreclosure Case is Active, It Is Never Too Late for a Motion to Dismiss Based on an RPAPL Article 13 Condition Precedent. 7. Plaintiff’s one argument that may have at least some colorable substance to it is buried at the end of Plaintiff’s Point I: that because Defendant did not raise a FAPA-based argument in her 1/9/23 cross-motion to dismiss (no NYSCEF link available), which was based on RPAPL 1304 and the now overruled Kessler holding that required strict compliance with such notice statute, she cannot make a FAPA-based argument now. In Plaintiff’s words: [T]he issue of whether RPAPL 1301(3) applies was not before the Court on the prior motion sequence—Plaintiff’s December 21, 2022 motion for a Judgment of Foreclosure and Sale and Defendant’s January 9, 2023 cross- motion to renew summary judgment [and dismiss based on Kessler]. See [the Court’s 3/23/23 Decision and Order at] NYSCEF Doc. No. 4. Defendant filed her cross-motion to renew after FAPA’s December 30, 2022 enactment and elected to raise a challenge to the foreclosure solely based on RPAPL 1304. See id. In her June 2023 Order to Show Cause (upon which she now seeks reargument), Defendant failed to address why she did not raise FAPA on the prior cross-motion to renew summary judgment [and dismiss based on Kessler]. Thus, because Defendant failed to preserve the issue of RPAPL 1301(3) in the prior motion practice, the Court need not consider it now. P's Memo at numbered p4, pdf p8, middle of page. 1 The FAPA Order on p5 acknowledges that Plaintiff made a law of the case argument, but does not further engage with it: “The Plaintiff argues, inter alia, that various relief is barred by law of the case and that FAPA is not applicable to the facts[.]” 3 3 of 7 FILED: ORANGE COUNTY CLERK 11/14/2023 11:43 PM INDEX NO. 008253-2012 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/14/2023 8. For the Court’s information, Defendant’s counsel, a solo practitioner, did not have time to first study and then incorporate into his various clients’ various arguments the import and effect of newly enacted FAPA, particularly over a year-end holiday break where he was already deep into drafting Defendant’s at-that-moment fully dispositive cross-motion based on Kessler (which had not yet been overturned by the Court of Appeals), which cross- motion was filed on 1/9/23, just ten days after FAPA was signed into law. FAPA enlightenment came later. 9. But the speed of counsel’s uptake as to FAPA has no bearing here. When the Legislature passed FAPA and amended the condition precedent requirements of RPAPL 1301, it declared that all RPAPL Article 13 condition precedents are intended to be sacrosanct (emphasis added): The use of the imperative “shall” with respect to the requirement to obtain prior leave of court connotes a mandatory requirement …. Yet, the mandate of the subdivision has been whittled away by judicial interpretation. The clarification of condition precedent language is to ensure RPAPL 1301 (3) is afforded the same strict compliance standard as its kindred RPAPL Article 13 condition precedents …. Senate Memo, behind the FAPA law text attached as Exhibit O (NYSCEF #39) to Def. Counsel’s FAPA Affirmation, pdf pp6-21, at numbered pp4-5. 10. Strict compliance with the condition precedent in RPAPL 1304 can be raised during a foreclosure action at any time, and the condition precedent in RPAPL 1301(3) is intended to enjoy the same privilege. As to RPAPL 1304, there are any number of appellate court decisions holding that a defense under RPAPL 1304 may be raised at any time until the entry of a final judgment of foreclosure and sale, even if the borrower did not raise RPAPL 1304 in 4 4 of 7 FILED: ORANGE COUNTY CLERK 11/14/2023 11:43 PM INDEX NO. 008253-2012 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/14/2023 an answer or prior motion practice. See, e.g., US Bank NA v Maioriello, 207 AD3d 428, 428 (1st Dept 2022); Wells Fargo Bank, NA v Davidson, 202 AD3d 880, 882 (2d Dept 2022); US Bank NA v Krakoff, 199 AD3d 859, 862 (2d Dept 2021). 11. In similar fashion, the Legislature has expressed its clear intention for revised RPAPL 1301 to be treated likewise (emphasis added): Accordingly, this bill amends certain statutes and rules to clarify the existing law and overturn certain court decisions to ensure the laws of this state apply equally to all litigants, including those currently involved in mortgage foreclosure actions, in order to ensure that parties purporting to sue on mortgage debt are bound by the same statutes of limitations that bind all other litigants. … The gravity of the aforementioned problem, and the legislature's determination to remedy same, is illustrated by the determination of the legislature in passing this bill to apply to all actions governed by CPLR 213 (4) [including this action] in which a final judgment of foreclosure and sale has not yet been enforced. … Section 10 contains the effective date and makes it clear that this legislation will apply immediately, and will apply to all such actions commenced where a final judgment of foreclosure and sale has not been enforced. Assembly Memo, behind the FAPA law text attached as Exhibit O (NYSCEF #39) to Def. Counsel’s FAPA Affirmation, pdf pp22-23. * * * 5 5 of 7 FILED: ORANGE COUNTY CLERK 11/14/2023 11:43 PM INDEX NO. 008253-2012 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/14/2023 WHEREFORE, Defendant respectfully asks the Court to enter an Order granting the relief requested. Dated: 11/14/23 Oliver Budde Law Office of Oliver Budde Attorney for Defendant 600 Mamaroneck Ave Ste 400 Harrison, NY 10528-1613 646-491-0818 o_budde@live.com To: Attorneys for Plaintiff Evan N. Soyer, Esq. Hinshaw & Culbertson LLP 800 Third Avenue, 13th Floor New York, NY 10022 212-655-3859 esoyer@hinshawlaw.com 6 6 of 7 FILED: ORANGE COUNTY CLERK 11/14/2023 11:43 PM INDEX NO. 008253-2012 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/14/2023 Certification Pursuant to 22 NYCRR 202.8b(c) 1. The foregoing document was drafted in Microsoft Word format, then converted to a .pdf file before being uploaded to NYSCEF. 2. A proportionally spaced typeface was used, as follows: a. Typeface name: Calibri b. Type size: 12-point c. Line spacing: Double, except as otherwise permitted. 3. There are 1,454 words in this document (according to a computer count, and versus an imposed maximum of 7,000 words (4,200 words for reply papers)), inclusive of any point headings and footnotes, and here also inclusive of the caption, signature block, and this certification. Dated: 11/14/23 Oliver Budde Law Office of Oliver Budde Attorney for Defendant 600 Mamaroneck Ave Ste 400 Harrison, NY 10528-1613 646-491-0818 o_budde@live.com 7 of 7