Preview
FILED: NEW YORK COUNTY CLERK 04/12/2024 04:43 PM INDEX NO. 850662/2023
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DCR MORTGAGE 10 SUB 2, LLC, :
:
Plaintiff, : Index No. 850662/2023
:
-against- : Mot. Seq. No. 002
:
179 LUDLOW OWNERS LLC, SHARON SUTTON, :
JESSE SUTTON, BOARD OF MANAGERS OF 179 :
LUDLOWST STREET CONDOMINIUM, NEW YORK :
STATE DEPT. OF TAXATION & FINANCE, NEW :
YORK CITY DEPT. OF FINANCE, AND “JOHN DOE” :
NOS. 1-25, :
:
Defendants. :
-----------------------------------------x
Albert Laoui, Esq
Attorney for Defendant
246 Fifth Avenue
New York, NY 10001
(917) 724-7084
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TABLE OF AUTHORITIES
Cases Page
U.S. Bank Natl. Assn. v Vasquez,
47 Misc. 3d 1023...…………………………………………………………………….. 2
US Bank N.A. v Sarmiento,
121 A.D.3d 187………………………………………………………………………... 2
Onewest Bank FSB v. Berry,
25 Misc. 3d 1218(A)…………………………………………………………………… 2
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES……………………………………………..……………………. i
PRELIMINARY STATEMENT…………………………………………………………….…. 1
STATEMENT OF FACTS…………………………………………….……………………….. 1
LEGAL ARGUMENT…………………………………………………………………………. 2
CONCLUSION………………………………………………………………………………… 3
ATTORNEY CERTIFICATION REGARDING WORD LIMIT……………………………… 4
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PRELIMINARY STATEMENT
Defendant 179 LUDLOW OWNERS LLC (“Defendant” or “Borrower”), submits this
memorandum of law in opposition to the motion for an order i) pursuant to CPLR § 3215, granting
a judgment by default in favor of plaintiff DCR MORTGAGE 10 SUB 2, LLC (“Plaintiff” or
“Lender”) and against defendants 179 LUDLOW OWNERS LLC (“Borrower”), SHARON
SUTTON, JESSE SUTTON, BOARD OF MANAGERS OF THE 179 LUDLOW STREET
CONDOMINIUM, NEW YORK STATE DEPT. OF TAXATION & FINANCE, and NEW
YORK CITY DEPT. OF FINANCE (collectively, the “Defendants”); (ii) pursuant to RPAPL §
1321, appointing a referee to compute the amount due to Plaintiff for principal and interest, or
otherwise, on the note and mortgage set forth in the Verified Complaint; (iii) holding defendants
179 LUDLOW OWNERS LLC, SHARON SUTTON and JESSE SUTTON liable for any
deficiency that may remain after the sale of the mortgaged premises at public auction and
application of the proceeds pursuant to directions contained in the judgment of foreclosure.
STATEMENT OF FACTS
Plaintiff brought this action to foreclose on a mortgage secured by Defendant's property located at
179 Ludlow Street, New York, New York, 10002. Defendant has been engaged in good faith
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negotiations with Plaintiff to modify the terms of the loan and allow Defendant to avoid
foreclosure. These negotiations are still ongoing, and the parties anticipate reaching an agreement
soon. As such, Defendant 179 Ludlow LLC has retained the services of a foreclosure &
restructuring brokerage firm to facilitate the negotiations. Defendant’s brokerage firm has been in
contact with plaintiff running negotiations.
LEGAL ARGUMENT
In New York, the law requires parties involved in a foreclosure action to negotiate in good faith to
reach a mutually agreeable resolution. U.S. Bank Natl. Assn. v Vasquez, 47 Misc. 3d 1023. The
concept of good faith negotiation is defined by considering whether the totality of the
circumstances demonstrates that the party's conduct constituted a meaningful effort at reaching a
resolution. US Bank N.A. v Sarmiento, 121 A.D.3d 187.
In the context of ongoing negotiations, it is important to note that claims of ongoing settlement
negotiations between a defendant and a plaintiff to a pending action may, under certain
circumstances, constitute a reasonable excuse for a default in answering. Onewest Bank FSB v.
Berry, 25 Misc. 3d 1218(A).
In the case at hand, the defendant can demonstrate that the negotiations with the plaintiff were
conducted in good faith as it retained the services of a foreclosure brokerage firm to facilitate
negotiations. The plaintiff's motion for foreclosure is an attempt to hardball the negotiations.
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CONCLUSION
For the foregoing reasons, Defendant respectfully requests that the Court exercise its discretion to
deny Plaintiff's motion for summary judgment and allow the loan modification negotiations to
continue. Should the negotiations fail, Plaintiff can renew its motion. However, foreclosing now
while a mutually agreeable resolution is still possible would be an inequitable and premature result.
Dated: New York, New York
April 12, 2024
Albert Laoui, Esq
Attorney for Defendant
246 Fifth Avenue
New York, NY 10001
(917) 724-7084
3
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ATTORNEY CERTIFICATION REGARDING WORD LIMIT
I, Albert Laoui, an attorney duly admitted to practice law before the courts of the State of New
York, hereby certify that this Memorandum of Law in Opposition of Plaintiff’s motion for a default
judgment complies with the word count limit set forth in Rule 202.8-b(a) because it contains 478
words, excluding the parts of the Memorandum exempted by Rule 202.8-b(b). In preparing this
certification, I have relied on the word count of the word processing system used to prepare this
memorandum.
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JGR MAR VISTA, LLC VS OUIZMAN, LLC, ET AL.
Jul 15, 2024 |
23SMCV04355
Case Number:
23SMCV04355
Hearing Date:
July 15, 2024
Dept:
205
HEARING DATE:
July
15
, 2024
JUDGE/DEPT:
Moreton
/
Beverly Hills, 205
CASE NAME:
JGR Mar Vista v.
Tropez
Marcel
Aubour
, et al.
CASE NUMBER:
2
3
SMCV0
4355
COMP. FILED:
September 18
, 2023
PROCEEDINGS:
REQUEST FOR ENTRY OF DEFAULT JUDGMENT
MOVING
PARTY:
JGR Mar Vista
RESP
ONDING
PARTY:
Tropez Marcel Aubour dba Atmosphere Café
and
Ouizman
LLC
BACKGROUND
This
case
a
rises from a breach of a contract for commercial space
located
at 12034 Venice Blvd, Los Angeles, California (the Premises)
.
Plaintiff JGR Mar Vistas predecessor in interest entered into a written
commercial lease agreement
(Lease)
with Defendants Aubour Tropez Marcel and
Ouizman
, LLC
.
Plaintiff
acquired
the Premises
and
was assigned all rights and interest in the Lease under an Assignment and Assumption of Lease
.
Defendants
failed to
pay rent
.
Plaintiff caused Defendants to be served with a 3 Day Notice to Pay or Quit
.
Defendants
failed to
comply with
the Notice
,
and
Plaintiff filed
an unlawful detainer action
.
That action resulted in a judgment for possession only
.
After regaining possession, Plaintiff was able to re-
lease
the Premises to a new tenant
.
However, the
new tenants rent is less than Defendants rent
.
There is a shortfall of $1,533.02 per month
.
On September 18, 2023, Plaintiff filed the instant action, alleging a single claim for breach of
Lease
.
The Complaint seeks
$149,817.00 in damages, interest at the rate of 10% per annum, and costs of suit
.
Plaintiff filed a proof of service showing
Ouizman
was served by
substitute service
on
September 26, 2023, and Tropez was served by publication on April 12, 2024
.
Defendants were
obligated
to respond
.
They
did not do so
.
Plaintiff successfully requested the entry of
Defendants
default, which was entered by the Clerks Office on
June 12,
2024
and June 13, 2024
.
Plaintiff
requested a default judgment on
July 1, 2024
.
Plaintiff served
Defendants
by mail with both the Request for Entry of Default and Request for Default Judgment
.
Defendants have
not appeared.
RELIEF REQUESTED
Default judgment against
Defendants
for a total of
$
130,853.96
, which is
comprised
of: (1) $
130,
044.55
, for damages,
and
(2) $
809.41
, for costs.
ANALYSIS
Code Civ
.
Proc
.
§
585 sets forth the two options for obtaining a default judgment. First, where the plaintiff
s complaint¿seeks compensatory damages only, in a sum certain which is readily ascertainable from the allegations of the complaint or statement of
damages, the clerk may enter the default judgment for that amount. However, if the relief requested in the complaint is more complicated, consisting of either nonmonetary relief, or monetary relief in amounts which require either an accounting,
additional
evidence, or the exercise of judgment to
ascertain
, the plaintiff must request entry of judgment by the court. In such cases, the plaintiff must affirmatively
establish
his entitlement to the specific judgment
requested
.¿ (
Kim v.
Westmoore
Partners, Inc.
(2011) 201 Cal.App.4th 267, 287.)
Section 585 also allows for interest
,
costs
and attorney fees, where otherwise allowed by law. (Code Civ. Proc.
§
585(a).)
Multiple specific documents are required, such as
: (1) form CIV 100, (2) a brief summary of the case; (3) declarations or other admissible evidence in support of the judgment requested; (4) interest computations as necessary; (5) a memorandum of costs and disbursements; (6) a proposed form of judgment; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under C
ode
C
iv.
P
roc.
§ 579, supported by a showing of grounds for each judgment; (8) exhibits as necessary; and (9) a request for attorneys fees if allowed by statute or by the agreement of the parties. (CRC Rule 3.1800.)
Here, Plaintiff has properly
complied with
all the substantive and procedural requirements for a default judgment
.
Substantively, Plaintiff declares via declaration that there have been damages
in the amount of
$
1
30,853.96
, which includes
(1)
back rent due of $111,648.31
and
(2) the
difference in
Defendants
rent
and the new tenants rent of $18,396.24
.
A memorandum of
costs
in the amount of
$
80
9.41
is
set forth in
Item
7
of the CIV-10
0
form
.
The evidence (including the
accounting
statement) is authenticated by declaration
.
Procedurally, Plaintiff properly served Defendant
s
more than 30 days prior to requesting entry of default and default judgment, correctly completed JC Form CIV-10
0
in a manner that would not void or put at issue the entry of default,
provided a declaration of non-military status,
requested dismissal of the fictitious defendants,
requested damages in amounts supported by
the filings
and not in excess of the amount stated in the Complaint
,
and filed a proposed judgment (JUD-100).
As default has already been entered and there has been no appearance or filing whatsoever from Defendant
s
,
default judgment is
appropriate here
.
CONCLUSION AND ORDER
For the foregoing reasons, Plaintiff
JGR Mar Vistas
Request for Default Judgment is
GRANTED
as to Defendant
s
Tropez Marcel Aubour dba Atmosphere Café
and
Ouizman
LLC
.
Default judgment
in the amount of
$
130,853.96
is awarded in favor of Plaintiff.
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CGC24613682
Real Property/Housing Court Law and Motion Calendar for July 9, 2024 line 1. DEFENDANT JUSTIN LUU, XIAO WU DEMURRER TO 1ST AMENDED COMPLAINT is SUSTAINED with leave to amend to allege facts in support of each element of each cause of action as to the moving defendants. Plaintiff must also allege tender or facts supporting an exception from the tender rule. =(501/HEK) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.
Ruling
TIFFANY FABER (GUARDIAN AD LITEM), ET AL. VS 2018-1 IH BORROWER LP, A DELAWARE LIMITED PARTNERSHIP,, ET AL.
Jul 11, 2024 |
23NWCV02916
Case Number:
23NWCV02916
Hearing Date:
July 11, 2024
Dept:
C
FABER v. 2018-1 IH BORROWER LP
CASE NO.:
23NWCV02916
HEARING:
07/11/24
#5
I.
Defendants 2018-1 IH BORROWER LP and INVITATION HOMES REALTY CALIFORNIA, INC.s Demurrer to Plaintiffs; Complaint is
OVERRULED
.
II.
Defendants 2018-1 IH BORROWER LP and INVITATION HOMES REALTY CALIFORNIA, INC.s Motion to Strike Portions of Plaintiffs; Complaint is
DENIED
.
Opposing Party to give notice.
This action was filed by Plaintiffs TIFFANY FABER; KAREEM KELLY; SARAI HILL; SHILOH HARRIS; and ELIJAHALI KELLY (collectively Plaintiffs) on September 14, 2023 concerning their tenancy at the Subject Property. (Complaint ¶13.)
Plaintiffs allege that [t]hroughout Plaintiffs tenancies, the Subject Property lacked basic characteristics necessary for human habitation& and would be considered a substandard unit as described in Heath & Safety Code §17920.3. (Complaint ¶14.)
The Complaint asserts the following causes of action:
(1)
Breach of Covenant/Covenant of Quiet Enjoyment/Warranty of Habitability;
(2)
Tortious Breach of the Implied Warranty of Habitability;
(3)
Negligence;
(4)
Violation of Unfair Business Practices; and
(5)
IIED
Defendants 2018-1 IH BORROWER LP and INVITATION HOMES REALTY CALIFORNIA, INC. (collectively Defendants) generally demur to the fifth cause of action for IIED.
Demurrer
The elements of a cause of action for intentional infliction of emotional distress are: (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress. (
Wong v. Jing
(2010) 189 Cal.App.4th 1354, 1376.) The conduct alleged must be so extreme and outrageous as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. (
Coleman v. Republic Indemnity Ins. Co
. (2005) 132 Cal.App.4th 403, 416.)
Here, the Complaint alleges that Plaintiffs constantly and consistently complained to the Defendants& about& slum-housing and untenable conditions including: inadequate plumbing; inadequate ventilation; dampness and mold; health and safety code violations; unsanitary conditions; and the failure to maintain the premises in a good and safe condition. (Complaint ¶15.) Plaintiffs further allege that [d]ue to the untenable conditions at the Subject Property which Defendants have allowed to persist unabated, Plaintiffs have developed serious health issues&. Plaintiffs have all suffered from, and continue to suffer from severe emotional distress. (Id. ¶21.)
The Complaint alleges that Defendants acted with reckless disregard of the probability of causing emotional distress, and have caused Plaintiffs severe emotional distress. These allegations are sufficient to support claims for IIED at this stage in the litigation. The demurrer to the fifth cause of action is OVERRULED.
Motion to Strike
Defendants move to strike Plaintiffs prayer for punitive damages.
A motion to strike lies either when (1) there is irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP §436.)
Punitive damages must be pled with specificity. Plaintiff must allege specific facts showing that the defendants conduct was oppressive, fraudulent, or malicious. (
Smith v. Sup. Ct
. (1992) 10 Cal.App.4th 1033, 1041-42.) For corporations, the advance knowledge and conscious disregard, authorization, ratification, or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Cal. Civ. Code §3294(b).)
In a personal injury action the notion of conscious disregard of the safety of others logically may be substituted for that of disregard of the rights of others& [C]onscious disregard of safety as an appropriate description of the animus malus which may justify an exemplary damage award when nondeliberate injury is alleged. (
G.D. Searle & Co. v. Sup. Ct
. (1975) 49 Cal.App.3d 22, 29.)
Here, Plaintiff adequately alleges that Defendants were aware of but failed to cure severe mold infestations and plumbing leaks for years, which caused physical harm to Plaintiffs. (See Complaint ¶¶17-22.) The motion to strike punitive damages is DENIED. The Complaint pleads sufficient facts to support a recovery of punitive damages at this stage in a litigation.
Ruling
William Shaw vs Ruth Shaw
Jul 11, 2024 |
23CV02548
23CV02548
SHAW v. SHAW
(UNOPPOSED) PLAINTIFF’S MOTION TO APPOINT PARTITION REFEREE
The unopposed motion is granted. Mr. Singer will be appointed as the partition referee.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Case No. 19CV02702
RHOADS v. BECKLEY
APPLICATION FOR ORDER FOR SALE OF DWELLING/OSC FOR SALE OF
DWELLING
This application is continued as discussed below.
The original application, brought pursuant to Code of Civil Procedure sections 704.740
through 704.850, was filed on January 26, 2023. For a variety of reasons, the application was
continued and not ruled upon. When the application was filed, Mr. Beckley was without counsel
and the court noted procedural as well as notice issues with the application, resulting in
continuances. Mr. Beckley then retained counsel, Thornton Davidson, on June 29, 2023.
Mr. Davidson sought to be relieved as counsel on May 8, 2024. The declaration in
support of Mr. Davidson’s motion to be relieved noted the next court date as June 11, 2024. The
court issued a tentative ruling the day before the June 11 hearing, tentatively granting the motion
to be relieved and specifically continuing the application for sale of dwelling to allow defendant
to either retain new counsel or participate in a pro per capacity. The parties were ordered to
appear. At the June 11 hearing, attended by Mr. Davidson and plaintiff’s counsel, Mr. Eschen,
Page 1 of 2
the court granted Mr. Davidson’s motion to be relieved and set July 11, 2024 as the next hearing
date. Mr. Beckley did not attend the June 11, 2024 hearing, nor is there evidence before the court
that he was notified of the July 11, 2024 date. The order prepared by Mr. Davidson after the
hearing and served on Mr. Beckley stated that the tentative ruling became the order of the court.
While the order attached the tentative ruling, there is no mention in either the order or the
tentative ruling of the July 11, 2024 hearing date for the application. The tentative ruling
specified that the application hearing would be set at the next court date.
The court will issue an order to show cause pursuant to Code of Civil Procedure section
704.770, subdivision (a). “After the judgment creditor has filed an application for an order for
sale, the court sets a time and place for hearing and must order the judgment debtor to show
cause why an order for sale should not be made in accordance with the application. The hearing
must be set no later than 45 days after the application is filed, or such later time as the court
orders on a showing of good cause.” (2 MB Practice Guide: CA Debt Collection 17.36 (2024).)
After the OSC is set, Mr. Rhoads must serve on the judgment debtor, Mr. Beckley, a copy of the
OSC, a copy of the application, and a copy of the notice of hearing in the form required by the
Judicial Council. (See Code of Civ. Proc. § 704.770, subd. (b).)
Page 2 of 2
Ruling
MOHILL HOLDINGS, LP, A CALIFORNIA FAMILY LIMITED PARTNERSHIP, ET AL. VS LA-FIG PARKING LOT LESSEE, LLC, A DELAWARE LIMITED LIABILITY COMPANY,, ET AL.
Jul 10, 2024 |
23STCV28088
Case Number:
23STCV28088
Hearing Date:
July 10, 2024
Dept:
39
TENTATIVE RULING
DEPT
:
39
May 20
July 10, 2024
CASE NUMBER
:
23STCV28088
MOTION
:
Motion for Attorneys Fees
MOVING PARTY:
Defendant LA-Fig Parking Lot Lessee, LLC
OPPOSING PARTIES:
Plaintiffs Mohill Holdings, LP and MO Foundation Holdings, LLC
MOTIONS
Plaintiffs Mohill Holdings, LP and MO Foundation Holdings, LLC (Plaintiffs) dismissed their claims against Defendant LA-Fig Parking Lot Lessee, LLC (Defendant).
Now, Defendant seeks attorney fees
.
Plaintiff opposes the motion.
ANALYSIS
The parties disagree as to whether this case is a contract or tort action.
In a contract action, [w]here an action has been voluntarily dismissed . . . , there shall be no prevailing party . . . .
(Civ. Code, § 1717, subd. (b)(2).)
Plaintiffs complaint in this action is for unlawful detainer.
Plaintiffs voluntarily dismissed their complaint on February 21, 2024.
As such, Plaintiffs argue Defendant is not the prevailing party and is not entitled to attorney fees.
However, Plaintiffs claims do not constitute an action on the contract.
[T]he unlawful detainer statute encompasses breach of lease (arguably contract-type matters) and holdover possession after expiration of the lease (arguably a noncontract issue).
(
Drybread v. Chipain Chiropractic Corp
. (2007) 151 Cal.App.4th 1063, 1074.)
In the instant case, Plaintiffs claims are based on Defendants holdover possession and are, therefore, noncontractual.
Plaintiffs claim Defendant failed to surrender the premises after Plaintiffs served Defendant with a notice to quit.
The 30-day notice to quit attached to the complaint does not identify any breach of the lease, rather it informs Defendant the month-to-month tenancy is terminated, and Defendant is required to quit and surrender possession of the premises.
(See Complaint, filed November 13, 2023, Exhibit 2.)
As such, Plaintiffs claims did not sound in contract.
Thus, the prohibition on an award of attorney fees under Civil Code section 1777 for the voluntary dismissal of the complaint does not apply.
The court determines Defendant is a prevailing party pursuant to Code of Civil Procedure section 1032, subdivision (a)(4).
(
Drybread v. Chipain Chiropractic Corp.
(2007) 151 Cal.App.4th 1063, 1077.)
The prevailing party must seek an award of attorney fees through the filing of a noticed motion and bears the burden of proof to justify the amount sought. (Code Civ. Proc., § 1033.5, subd. (c)(5)(A).)
Defendant seeks an award of $50,000 in attorney fees.
Defendant has not, however, advanced any billing records to support this amount. The court considers a request for attorney fees based on careful compilation of the time spent and reasonable hourly compensation of each attorney involved.
(
Serrano v. Unruh
(1982) 32 Cal.3d 621, 626, fn. 6, internal quotations and citations omitted.)
Without such evidence, the court cannot grant Defendants request for attorney fees.
Defendant cites
Steiny & Co., Inc. v. California Electric Supply Co
. (2000) 79 Cal.App.4th 285, which is not on point.
In that case, the Court of Appeal stated, An attorney's testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.
(
Steiny & Co., Inc. v. California Electric Supply Co
. (2000) 79 Cal.App.4th 285, 293.)
The court also noted the attorneys declaration in that case included detailed evidence of hours spent, tasks concluded, and billing rates.
(
Ibid.
)
In the instant case, Defendant does not present any evidence of the number of hours Defendants attorneys billed on the matter, the specific nature of the services they provided, or the specific tasks that were completed.
Defendant advances a declaration of its attorney, Navi Signh Dhillon (Dhillon) who simply states, I reviewed the billing records for this matter and I am confident that the number of hours billed are commensurate with the tasks performed.
(Declaration of Navi Singh Dhillon, ¶ 7.)
Dhillon does not aver to the number of hours he and/or any other attorney worked on this case nor the specific tasks that were performed.
Although Dhillon suggests he has discounted the number of hours worked by as much as a half of the hours expended in the case and is, therefore, seeking only $50,000 for 50 hours of work at $1,000 an hour, that is not a sufficient accounting.
Moreover, he has not established a billing rate of $1000 an hour in an unlawful detainer action is a reasonable hourly rate that is in keeping with the industry standard in Los Angeles.
Defendant fails to present evidence to support the requested fees.
Accordingly, the motion for attorney fees is denied without prejudice.
Defendant is
ordered to provide notice of this order and to file proof of service of same.
Ruling
WAGNER VS. LLOYD
Jul 14, 2024 |
CVCV21-0198602
WAGNER VS. LLOYD
Case Number: CVCV21-0198602
This matter is on calendar for review regarding status of counsel. At the last hearing on May 20, 2024, both
parties represented that they were trying to obtain counsel. There was also a question of whether Plaintiff was
acting in her capacity as a Trustee. An appearance by both parties is required on today’s calendar. Plaintiff
should be prepared to address whether the property is held by a trust or as individuals.
Ruling
Jensen vs. Wells Fargo Realty Services Inc
Jul 10, 2024 |
22CV-0200623
JENSEN VS. WELLS FARGO REALTY SERVICES INC
Case Number: 22CV-0200623
This matter is on calendar for review regarding status of the case. Defendant has been defaulted
in this case. A default prove-up hearing has not occurred. At the prior hearing on April 8, 2024,
Plaintiff’s Counsel appeared to inform the Court she was speaking with a bond company and to
request a continuance. The matter was continued to today but no status report has been filed. An
appearance is necessary on today’s calendar to discuss the status of the case and, if
appropriate, to re-set this mater for a default prove-up hearing.
Document
Shanghai Commercial Bank Ltd., New York Branch, The Shanghai Commercial & Savings Bank, Ltd. v. New Tent, Llc, Neo Image Enterprises, Llc, A&H Installation Inc., Milestone Construction Corp., Colgate Rentals Corp., United States Small Business Administration, M & D Installers, Inc. d/b/a M&D Door and Hardware, New York City Environmental Control Board, New York City Department Of Finance, New York State Department Of Taxation And Finance, John Doe No. 1 To John Doe No. 100
Jul 10, 2024 |
Real Property - Mortgage Foreclosure - Commercial |
Real Property - Mortgage Foreclosure - Commercial |
850240/2024
Document
175 West 76th Street Llc, v. Lichter Real Estate Number One, L.L.C., Suzette Schwartz, Suzette Schwartz As Executor Of The Estate Of Claire Lichter, Joseph Schwartz As Executor Of The Estate Of Claire Lichter, City Of New York Environmental Control Board, New York City Department Of Finance, New York State Department Of Taxation And Finance, New York Smsa Limited Partnership D/B/A Verizon Wireless, John Doe #1 Through John Doe # 100 the last one hundred names being fictitious and unknown to Plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest upon the premises described in the Complaint
Jul 09, 2024 |
Real Property - Mortgage Foreclosure - Commercial |
Real Property - Mortgage Foreclosure - Commercial |
850233/2024
Document
U.S. Bank Trust National Association, Not In Its Individual Capacity But Solely As Owner Trustee For Vrmtg Asset Trust v. Lindsay Frimodt , if living and if any be dead, any and all the heirs at law, next of kin, distributees, devisees, grantees, trustees, lienors, creditors, assignees, and successors in interest of any of the aforesaid defendants, next of kin, distributees, devisees, New York State Department Of Taxation And Finance, United States Of America O/B/O Internal Revenue Service, Board Of Managers Of 72 A/K/A 72-74 East 3rd Street Condominium
May 28, 2019 |
Francis A. Kahn III
|
Real Property - Mortgage Foreclosure - Residential |
Real Property - Mortgage Foreclosure - Residential |
850114/2019
Preview
FILED: NEW YORK COUNTY CLERK 04/12/2024 04:43 PM INDEX NO. 850662/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DCR MORTGAGE 10 SUB 2, LLC, : : Plaintiff, : Index No. 850662/2023 : -against- : Mot. Seq. No. 002 : 179 LUDLOW OWNERS LLC, SHARON SUTTON, : JESSE SUTTON, BOARD OF MANAGERS OF 179 : LUDLOWST STREET CONDOMINIUM, NEW YORK : STATE DEPT. OF TAXATION & FINANCE, NEW : YORK CITY DEPT. OF FINANCE, AND “JOHN DOE” : NOS. 1-25, : : Defendants. : -----------------------------------------x Albert Laoui, Esq Attorney for Defendant 246 Fifth Avenue New York, NY 10001 (917) 724-7084 1 of 8 FILED: NEW YORK COUNTY CLERK 04/12/2024 04:43 PM INDEX NO. 850662/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2024 2 of 8 FILED: NEW YORK COUNTY CLERK 04/12/2024 04:43 PM INDEX NO. 850662/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2024 TABLE OF AUTHORITIES Cases Page U.S. Bank Natl. Assn. v Vasquez, 47 Misc. 3d 1023...…………………………………………………………………….. 2 US Bank N.A. v Sarmiento, 121 A.D.3d 187………………………………………………………………………... 2 Onewest Bank FSB v. Berry, 25 Misc. 3d 1218(A)…………………………………………………………………… 2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES……………………………………………..……………………. i PRELIMINARY STATEMENT…………………………………………………………….…. 1 STATEMENT OF FACTS…………………………………………….……………………….. 1 LEGAL ARGUMENT…………………………………………………………………………. 2 CONCLUSION………………………………………………………………………………… 3 ATTORNEY CERTIFICATION REGARDING WORD LIMIT……………………………… 4 i 3 of 8 FILED: NEW YORK COUNTY CLERK 04/12/2024 04:43 PM INDEX NO. 850662/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2024 ii 4 of 8 FILED: NEW YORK COUNTY CLERK 04/12/2024 04:43 PM INDEX NO. 850662/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2024 PRELIMINARY STATEMENT Defendant 179 LUDLOW OWNERS LLC (“Defendant” or “Borrower”), submits this memorandum of law in opposition to the motion for an order i) pursuant to CPLR § 3215, granting a judgment by default in favor of plaintiff DCR MORTGAGE 10 SUB 2, LLC (“Plaintiff” or “Lender”) and against defendants 179 LUDLOW OWNERS LLC (“Borrower”), SHARON SUTTON, JESSE SUTTON, BOARD OF MANAGERS OF THE 179 LUDLOW STREET CONDOMINIUM, NEW YORK STATE DEPT. OF TAXATION & FINANCE, and NEW YORK CITY DEPT. OF FINANCE (collectively, the “Defendants”); (ii) pursuant to RPAPL § 1321, appointing a referee to compute the amount due to Plaintiff for principal and interest, or otherwise, on the note and mortgage set forth in the Verified Complaint; (iii) holding defendants 179 LUDLOW OWNERS LLC, SHARON SUTTON and JESSE SUTTON liable for any deficiency that may remain after the sale of the mortgaged premises at public auction and application of the proceeds pursuant to directions contained in the judgment of foreclosure. STATEMENT OF FACTS Plaintiff brought this action to foreclose on a mortgage secured by Defendant's property located at 179 Ludlow Street, New York, New York, 10002. Defendant has been engaged in good faith 1 5 of 8 FILED: NEW YORK COUNTY CLERK 04/12/2024 04:43 PM INDEX NO. 850662/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2024 negotiations with Plaintiff to modify the terms of the loan and allow Defendant to avoid foreclosure. These negotiations are still ongoing, and the parties anticipate reaching an agreement soon. As such, Defendant 179 Ludlow LLC has retained the services of a foreclosure & restructuring brokerage firm to facilitate the negotiations. Defendant’s brokerage firm has been in contact with plaintiff running negotiations. LEGAL ARGUMENT In New York, the law requires parties involved in a foreclosure action to negotiate in good faith to reach a mutually agreeable resolution. U.S. Bank Natl. Assn. v Vasquez, 47 Misc. 3d 1023. The concept of good faith negotiation is defined by considering whether the totality of the circumstances demonstrates that the party's conduct constituted a meaningful effort at reaching a resolution. US Bank N.A. v Sarmiento, 121 A.D.3d 187. In the context of ongoing negotiations, it is important to note that claims of ongoing settlement negotiations between a defendant and a plaintiff to a pending action may, under certain circumstances, constitute a reasonable excuse for a default in answering. Onewest Bank FSB v. Berry, 25 Misc. 3d 1218(A). In the case at hand, the defendant can demonstrate that the negotiations with the plaintiff were conducted in good faith as it retained the services of a foreclosure brokerage firm to facilitate negotiations. The plaintiff's motion for foreclosure is an attempt to hardball the negotiations. 2 6 of 8 FILED: NEW YORK COUNTY CLERK 04/12/2024 04:43 PM INDEX NO. 850662/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2024 CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court exercise its discretion to deny Plaintiff's motion for summary judgment and allow the loan modification negotiations to continue. Should the negotiations fail, Plaintiff can renew its motion. However, foreclosing now while a mutually agreeable resolution is still possible would be an inequitable and premature result. Dated: New York, New York April 12, 2024 Albert Laoui, Esq Attorney for Defendant 246 Fifth Avenue New York, NY 10001 (917) 724-7084 3 7 of 8 FILED: NEW YORK COUNTY CLERK 04/12/2024 04:43 PM INDEX NO. 850662/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2024 ATTORNEY CERTIFICATION REGARDING WORD LIMIT I, Albert Laoui, an attorney duly admitted to practice law before the courts of the State of New York, hereby certify that this Memorandum of Law in Opposition of Plaintiff’s motion for a default judgment complies with the word count limit set forth in Rule 202.8-b(a) because it contains 478 words, excluding the parts of the Memorandum exempted by Rule 202.8-b(b). In preparing this certification, I have relied on the word count of the word processing system used to prepare this memorandum. 4 8 of 8