Preview
FILED: SUFFOLK COUNTY CLERK 07/10/2019 11:13 AM INDEX NO. 611202/2019
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/10/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
--------------------------------------------------------------------x Index No.: 611202/2019
WILMINGTON SAVINGS FUND SOCIETY, FSB, AS
TRUSTEE OF STANWICH MORTGAGE LOAN TRUST A
Plaintiff, VERIFIED ANSWER AND
AFFIRMATIVE DEFENSES
-against-
LISA J. MOHRMAN
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,
INC. AS NOMINEE FOR CASTLE POINT MORTGAGE INC.;
SHINNECOCK SHORES ASSOCIATION, INC.; BOARD OF
DIRECTORS OF SHINNECOCK SHORES ASSOCIATION, INC.;
PEOPLE OF THE STATE OF NEW YORK; UNITED STATES
OF AMERICA-INTERNAL REVENUE SERVICE
#12"
"JOHN DOE #1 through "JOHN DOE the last
twelve 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
in or lien upon the premises, described in the complaint,
Defendants
--------------------------------------------------------------------x
Defendant, LISA J. MOHRMAN, by her attorneys, AHERN & AHERN, Attorneys &
Counselors at Law, PLLC, as and for her Verified Answer to the Complaint of the Plaintiff
herein, respectfully alleges and states, upon information and belief as follows:
1. The Defendant, LISA J. MOHRMAN, denies knowledge or information,
sufficient to form a belief as to the allegations contained in paragraphs numbered "1", "2", "3",,
"6" "7"
"4", "5", and of the Plaintiff's Complaint.
2. The Defendant, LISA J. MOHRMAN, denies each and every allegation contained
"9" and"10"
in paragraphs numbered "8", of the Plaintiff's Complaint.
3. The Defendant, LISA J. MOHRMAN, denies knowledge or information,
"11"
sufficient to form a belief as to the allegations contained in paragraph number of the
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Plaintiff's Complaint.
4. The Defendat, LISA J. MOHRMAN, denies each and every allegation contained
"12"
in paragraph number of the Plaintiff's Complaint.
5. The Defendant, LISA J. MOHRMAN, denies knowledge or information,
sufficient to form a belief as to the allegations contained in paragraphs numbered "13", "14",
"15"
and "16", of the Plaintiff's Complaint.
6. The Defendant, LISA J. MOHRMAN, denies each and every allegation contained
"17"
in paragraphs numbered and "18", of the Plaintiff's Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
That the defendants did not receive a ninety day notice required by RPAPL Section 1304
and 1306. As such, the plaintiff may not proceed. Therefore, the court must dismiss this case on
this fact alone. Furthermore, the defendants did not receive a thirty day acceleration notice. This
is a condition precedent to foreclosure.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
That the plaintiff is attempting to charge the defendants legal fees and costs for this
action. However, the plaintiff does not even attach a copy of the note and mortgage showing that
plaintiff is entitled to legal fees. As such, this court must not award legal fees to the plaintiff
unless the plaintiff can prove that they are entitled to same.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
That the plaintiff has not given proof that they are registered to do business and make
mortgage loans in the State of New York. That the plaintiff should be barred from commencing
this action until the plaintiff proves that they are licensed by the banking department to issue
mortgage loans.
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AS AND FOR A FOURTH AFFIRMATIVE DEFE}{SE
That the plaintiff fails to state a cause of action upon which relief can be granted. To wit,
the plaintiff has not proven that they have standing to bring this action as they have not provided
proof of ownership of the mortgage and note. To wit, the plaintiff does not appear to be the
originator the mortgage loan. The plaintiff may not proceed until the prove standing. Please see
Campaigñ v. Barba, 23 AD 327, 805 N.Y.S.2d 86 (2d Dept). To establish a prima facie case in
an action to foreclose a mortgage, the plaintiff must establish the existence of the mortgage and
mortgage note, ownership of the mortgage and the defendant's default in payment. Also see,
Household Finance Realty Corp of New York v. Winn, 19 AD3d 545, 706 N.Y.S.2d 533
(2d Dept 2005), Sears Mortgage Corp v. Taghabi, 19AD3d 402, 796 N.Y.S2d 392( 2d Dept
2005), Ocwen Federal Bank FSB v. Miller , 18 Ad3d 527, 794 N.Y.S. 2d 650 ( 2d Dept 2005);
US Bank Trust Nat. Ass'n v. Butti, 16 AD 3d 408, 792 N.Y.S.2d 505 (2d Dept 2005), First
Union Mortgage Corp v. Fern , 298 AD2d 490 , 740 N.Y.S2d 42
(2d Dept 2002.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
That the defendants do not believe that they have been credited with all payments
made. As such, the defendants request a payment history.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
That the defendants were not qualified to obtain this mortgage loan and as such the
plaintiff should not be permitted to proceed with this foreclosure action.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
That the Complaint fails to state a cause of action upon which relief can be granted.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
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The Court has improper subject matter jurisdiction over the claims between the parties.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
Improper personal service upon the Defendants, personal jurisdiction defective
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
The Defendants have set offs and claims against any and all alleged amounts due to
Plaintiff.
AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE
Plaintiff has failed to mitigate its damages
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
Plaintiff's claims are barred, in whole or in part, by the doctrines of laches, waiver and
estoppel.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiff's claims are barred to the extent that Plaintiff's claimed damages were not
proximately caused by any acts or omissions of the Defendants.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiff's claim for damages are barred because they are speculative and because of
the impossibility of ascertaining any such damages
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
That the alleged cause of action on behalf of the Plaintiff stated in the Complaint in
the above action did not accrue within the time for the commencement of the action and is
therefore barred by the statute of limitations.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
That the Verified Complaint violates the statutes of fraud
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
Defendant reserves the right to assert other Affirmative Defenses as may be
warranted as discovery proceeds as well as any Counterclaims or Cross-claims.
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WHEREFORE, Defendant, LISA J. MOHRMAN, demands judgment dismissing the
Plaintiff's Complaint, together with the costs and disbursements of this action and for such other
and further relief as to this Court deems just and proper.
Dated: (A , 2019
Ahern & Ahern
Attorneys for Defendant, LISA J. MOHRMAN
One Main Street
Kings Park, New York 11754
(631) 269-9500
To: ROACH & L1N, PC
Attorneys for Plaintiff
6901 Jericho Turnpike - Suite 240
Syosset, New York 11791
(516) 938-3100
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STATE OF NEW YORK, COUNTY OF SUF FOLK
I, the undersigned, being duly sworn, depose and say: we are the Ddandanto
L Individual Verification
I am the Defendant LISA J. MOHRMAN in the within action; we have read the foregoing and
same is true to our own knowledge, except as to the matters therein stated to be alleged on inform
matters we believe it to be true.
_ Corporate Verification
I am the of , a domestic carporation and a party in the within action; I hav
contents thereof; the same
is true to my own knowledge, except as to the matters therein stated
belief, and as to those matters I believe it to be true. This verification is made by me because t
I am an officer thereof. The grounds of my belief as to all matters not stated upon my own knõw
rn to befo me on July , 2019 n
EfS J. piÈRMAN
V.TEPEDINO
NorARY PUBLIC STATEOFWW
QUÁUFl£Dm SUFFOLK COUNTY
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6 of 6
Related Content
in Suffolk County
Ruling
KEITH HERNANDEZ VS DANIEL LOPEZ, ET AL.
Jul 09, 2024 |
24NWCV00960
Case Number:
24NWCV00960
Hearing Date:
July 9, 2024
Dept:
C
Hernandez v. Lopez, et al., Case No. 24NWCV00960
This is an unlawful detainer action. Defendants Daniel Lopez and Nidelvia Yah move ex parte to vacate and set aside the default and default judgment entered against them on June 17, 2024, quash any writ, and stay the execution in the instant case.
On April 11, 2024, Defendants demurred to the complaint.
On May 31, 2024, Defendants answered.
On June 4, 2024, the Court overruled Defendants demurrer.
Because Defendants both demurred and answered, the motion for default is vacated and the ex parte motion is MOOT.
Ruling
GARCIA vs STAMP
Jul 12, 2024 |
CVRI2303859
MOTION FOR INTERLOCUTORY
JUDGMENT OF PARTITION BY SALE
CVRI2303859 GARCIA VS STAMP
AND APPOINTMENT OF PARTITION
REFEREE BY KIMBERLY STAMP
Tentative Ruling: Defendant’s Motion for Interlocutory Judgment and Appointment of Referee is
denied.
Defendant seeks an interlocutory judgment for partition under CCP § 872.720. However, a
regularly noticed motion is not the appropriate procedural mechanism for said relief. The right to
a partition is determined at trial. CCP § 872.710(a). “No partition can be had until the interests of
all the parties have been ascertained and settled by a trial.” Bacon v. Wahrhaftig (1950) 97
Cal.App.2d 599, 603. “If the court finds that the plaintiff is entitled to partition, it shall make an
interlocutory judgment that determines the interest of the parties in the property and orders the
partition of the property and, unless it is to be later determined, the manner of partition.” CCP §
872.720(a).
Here, trial in this matter has not been conducted. There has been no motion for summary
judgment heard. The Court has not yet determined at trial or summary judgment that there is a
right to partition. Defendant treats this motion as a dispositive motion where none exists. Under
CCP § 872.030, the rules of civil procedure apply to partition actions unless they are inconsistent
with the partition statutes. As such, it is procedurally improper for the court to issue an order for
partition through a regularly noticed “motion.” Defendant has provided no authority, other than
singled out partition statutes, that nonetheless precludes a motion for such an interlocutory
judgment.
3.
MOTION FOR PRELIMINARY
INJUNCTION AGAINST KLEIN
CVRI2305855 HEWITT VS KLEIN DEFENDANTS AND TO APPOINT
PROVISIONSAL CORPORATE
DIRECTOR
Tentative Ruling: In light of Defendant’s conduct June 24-26, Plaintiff’s Motion for Preliminary
Injunction is granted; the injunction shall follow the restrictions delineated in the June 28th
Temporary Restraining Order.
Motion for Provisional Director to run the Corporation is granted; Each party is to submit a list of
three names subject to Corp. C. §308(c).
A motion for preliminary injunction must show (1) a probability of prevailing on the merits, and (2)
that the balance of hardships favors issuance of the injunction. (O’Connell v. Superior Court
(2006) 141 Cal.App.4th 1452, 1463.) However, “[t]he applicant must demonstrate a real threat of
immediate and irreparable injury.” (Triple A. Machine Shop, Inc. v. State of California (1989) 213
Cal.App.3d 131, 138.)
“[A]n injunction is an unusual or extraordinary equitable remedy which will not be granted if the
remedy at law (usually damages) will adequately compensate the injured plaintiff.” (Department
of Fish & Game v. Anderson-Cottonwood Irrigation District (1992) 8 Cal.App.4th 1554, 1565
(quoting Witkin).) Plaintiff merely argues that his ownership interest has been devalued—but fails
to explain why that cannot be compensated with damages. Nor does the 14th-15th causes of
action support an injunction as the UCL claim seeks restitution and declaratory relief is another
form of equitable relief.
The 11th cause of action (Corporations Code §308) and the 16th cause of action (corporate
dissolution). Under Corporations Code §1800(a), 50% or more of the directors in office, or a
shareholder who holds shares representing not less than 33.3% of outstanding shares, or any
shareholder if the ground for dissolution is that the period for which the corporation was formed
has terminated without extension, or any person expressly authorized to do so in the articles of
incorporation may file a complaint for involuntary dissolution. The grounds for involuntary
dissolution are that the corporation has abandoned its business for more than one year, the
corporation has an even number of directors who are equally divided and cannot agree to the
management of its affairs, there is internal dissension and two or more factions of shareholders
in the corporation are deadlocked such that the business can no longer be conducted, those in
control are guilty or have engaged in persistent and pervasive fraud, mismanagement or abuse
of authority or waste, in corporations with 35 of fewer shareholders, liquidation is reasonably
necessary for the protection of the rights or interests of the complaining shareholder(s), or the
period for which the corporation has formed has terminated without extension of such period.
(Corp. C. §1800(b).) After hearing, the court may grant orders or injunctions as justice and equity
requires. (Corp. C. §1804.)
Plaintiff is a shareholder of at least 33.3%. While the parties dispute whether or not Plaintiff sold
an interest of 4%, that remains that he still has at least a 33.3% share. The next issue is grounds
for involuntary dissolution. Plaintiff has asserted all the statutory grounds but the last. (FAC ¶195-
198.)
The issue here is the formation process of the corporation. To start, the articles of incorporation
must be personally signed by each of the incorporator, and each initial director (if any) along with
a duly acknowledgment. (Corp. C. §§ 17.1, 149, 200.) The articles do not require the initial
directors to be named. (Corp. C. §204.) If the articles do not identify the number of directors, the
corporation must adopt bylaws that specify the number of directors. (Corp. C. § 212(a).) In this
situation, the incorporators must adopt the bylaws and designate the directors prior to the first
meeting of the board of directors. (Friedman, California Practice Guide: Corporations §§4:398
(Rutter Group 2023).)
The articles of incorporation have not been provided. The only evidence of its existence is
attached to the original verified complaint—but even then, it is the electronic filing certificate
indicating a filing date of 1/31/22. It is unclear if there is a signed version. Plaintiff states that
there was no meeting for the articles or bylaws, and was unaware of the copy of the bylaws.
(Plaintiff’s Decl. ¶18-21.) Defendant Wesley states that he discussed with Plaintiff the corporate
directors, and advised Landis to name Plaintiffs and Defendants as directors on the statement of
information. (Wesley Decl. ¶7.) A corporation must file within 90 days after filing of the original
articles and annually therefore, information about the corporation. (Corp. C. §1502.)
But, he provides no information as to how the bylaws were approved—only a conclusory
statement of discussions. The bylaws provided by Wesley are confusing. First, it states that it
amends and restates the bylaws of the unincorporated association of the dispensary created on
8/19/16. (Wesley Decl., Ex. E.) At the top heading of each page, it states “Last updated May 5,
2021” but was then effective 5/5/21 by Wesley, but a document history indicates that the
agreement was not e-signed and completed until 1/21/22. The articles were not effective until
1/31/22, so bylaws were created before the articles were submitted to the Secretary of State. It
is not until the filing date of the articles that the corporation begins to exist. (Corp. C. §200(c).)
Thus, it is unclear how the bylaws were created before the corporation existed. At this point, it
appears that there are no valid directors for the corporation.
Under Corporation Code §308(b), if shareholders are deadlocked such that directors cannot be
elected, upon petition of a shareholder holding 50% of the voting power may petition the court to
appoint a provisional director or directors. A provisional director is neither a shareholder nor
creditor of the corporation. (Corp. C. §308(c).) Here, appearing to the court to be the most
appropriate remedy as it is akin to a receiver. Both sides accuse each other of wrong doing. On
the one hand, Plaintiff has provided evidence that Wesley is interfering in daily business
operations. On the other hand, Defendant has provided evidence that under Plaintiff’s operation,
there were outstanding taxes and evidence of some financial accounting issues—even if a full
audit is not performed.
Plaintiff points to Corporations Code §2003, which provides: “When the identity of the directors or
their right to hold office is in doubt, or if they are dead or unable to act, or they fail or refuse to act
or their whereabouts cannot be ascertained, any interested person may petition the superior court
of the proper county to determine the identity of the directors or, if there are no directors, to appoint
directors to wind up the affairs of the corporation, after hearing upon such notice to such persons
as the court may direct.” However, the court has yet to order dissolution. This is premature.
The court finds the most appropriate remedy is to appoint a provisional director. The parties
should each submit a list of three persons to act as the proposed provisional director.
Ruling
William Shaw vs Ruth Shaw
Jul 14, 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
Andrew Muray et al vs Karen Lantz et al
For Plaintiffs Andrew Muray and Kerri Marshall: Richard I. Wideman
For Defendants Karen Lantz and Andrew Farkas: James B. Devine
RULING
For the reasons set forth below, a preliminary injunction will issue pending final determination of this action or further order of the Court.
Background
This action commenced on May 29, 2024, by the filing of the complaint by Plaintiffs Andrew Muray and Kerri Marshall against Defendants Karen Lantz and Andrew Farkas. The complaint is for injunction and damages for forcible entry and trespass, self-help, and quiet title based on adverse possession.
As alleged in the complaint:
Plaintiffs are the owners of real property known as 922 Roble Lane in Santa Barbara. Defendants are the owners of real property known as 916 Roble Lane in Santa Barbara, adjacent to Plaintiffs’ property.
On May 20, 2024, while Plaintiffs were away from their property, Defendants used bulldozers and other heavy construction equipment to remove a portion of Plaintiffs’ property, claiming that that portion of Plaintiffs’ property trespassed on Defendants’ property. Defendants removed a portion of the balcony, fencing, and foundation footings that had been present for approximately 40 years.
Sometime between 1979 and 1982, the prior owners of Plaintiffs’ property had made permitted additions to the property including the potions removed by Defendants. Defendants plan to construct improvements on the property including the area formerly occupied by the portions of Plaintiffs’ property that was removed by Defendants.
On June 7, 2024, Plaintiffs were granted a temporary restraining order prohibiting Defendants from entering onto or constructing any improvements on property that Plaintiffs claim was formerly occupied by 922 Roble Lane prior to Defendants’ removal of the wall, portions of the balcony, and footings. At that time, the current order to show cause re: preliminary injunction was scheduled.
Analysis
As an initial matter, all of Defendants’ evidentiary objections are overruled. The Court notes that, other than the photographs, maps, and plans (which are sufficiently authenticated), none of the statements objected to have any bearing on the Court’s ruling. Also, Defendants themselves have submitted photographs, maps, and plans showing substantially similar conditions of the disputed property. Likewise, Plaintiffs’ objections to Defendants’ statements and evidence are overruled.
“A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor. No preliminary injunction shall be granted without notice to the opposing party.” (Code Civ. Proc., § 527, subd. (a).)
The purpose of the preliminary injunction is to preserve the status quo until a final determination of the merits of the action. (Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 832.) The burden is on the Plaintiff to show that it is entitled to the relief sought. (Id. at p. 838.)
A preliminary injunction requires “a complaint which states a sufficient cause of action for injunctive relief of the character embraced in the preliminary injunction.” (Handyspot Co. of Northern Cal. v. Buegeleisen (1954) 128 Cal.App.2d 191, 194.) A cause of action is based on the invasion of a primary right. (Bay Cities Paving & Grading, Inc. v. Lawyers’ Mut. Ins. Co. (1993) 5 Cal.4th 854, 860–861.)
The grant or denial of an injunction does not amount to an adjudication of the ultimate rights in a controversy, and merely determines that the Court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, exercise of the right claimed by the Defendant should or should not be restrained. (Jamison v. Department of Transportation (2016) 4 Cal.App.5th 356, 361.)
In deciding whether to issue a preliminary injunction, a trial Court must evaluate two interrelated factors: (1) the likelihood that the Plaintiff will prevail on the merits at trial, and (2) the interim harm that the Plaintiff would be likely to sustain if the injunction were denied, as compared to the harm the Defendant would be likely to suffer if the preliminary injunction were issued. (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729,749.) The trial Court's determination must be guided by a mix of the potential-merit and interim-harm factors; the greater the Plaintiffs’ showing on one, the less that must be shown on the other to support an injunction. (Butt v. State of California (1992) 4 Cal.4th 668, 678.) However, a trial Court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the Plaintiff would ultimately prevail on the merits of the claim. (Ibid.)
“The likelihood of Plaintiffs’ ultimate success on the merits “ ‘does affect the showing necessary to a balancing-of-hardships analysis. That is, the more likely it is that Plaintiffs will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue. This is especially true when the requested injunction maintains, rather than alters, the status quo. [Citation.] . . . [I]t is the mix of these factors that guides the trial Court in its exercise of discretion.’ ” [Citations.] The presence or absence of these interrelated factors “ ‘is usually a matter of degree, and if the party seeking the injunction can make a sufficiently strong showing of likelihood of success on the merits, the trial Court has discretion to issue the injunction notwithstanding that party's inability to show that the balance of harms tips in his favor. [Citation.]’ ” [Citation.]” (Right Site Coalition v. Los Angeles Unified School Dist. (2008) 160 Cal.App.4th 336, 342.)
Plaintiffs have provided legal argument and evidence in support of their claims that Defendants engaged in self-help, forcible entry, trespass, and adverse possession. Defendants, on the other hand, argue that Plaintiffs are “unlikely to succeed on the merits.” (Opp., p. 13, ll. 8-13.)
The Court has reviewed all of the evidence submitted by the parties, as well as considered the legal arguments made by the parties. The Court finds that there is a strong likelihood that Plaintiffs will ultimately prevail on at least some of their causes of action.
Defendants also argue that Plaintiffs have not provided any evidence of imminent, irreparable harm. The Court disagrees. Photographs, survey maps, and plans have been submitted. The photographs show fairly extensive damage alleged to have been done to 922 Roble Lane by Defendants already. Defendants do not appear to dispute that they caused the removal of the wall and portions of the balcony. The plans appear to indicate that Defendants intend to make improvements to areas that were previously occupied by portions of 922 Roble Lane. If Defendants are not enjoined, and Plaintiffs ultimately prevail in the action, Plaintiffs will have been irreparably harmed by, among other things, being deprived of their use and enjoyment of the property, their personal property would potentially be destroyed or altered, and they would suffer continued trespass. Monetary, or other legal remedies are inadequate.
Plaintiffs argue “Defendants are obviously planning to construct [a] portion of their development on the land that was occupied by the improvements to the Plaintiffs’ residence they removed. That must be stopped to prevent the need for tearing down portions of Defendants’ new residence and restoring Plaintiffs’ residence.” (Ex Parte Application for TRO, p. 8, ll. 5-10.)
Finally, Defendants argue that because the fence has already been removed, there is no need for a preliminary injunction because the act has already taken place. (Opp., p. 11, l. 21.) This would imply that Defendants do not intend to do any more demolition, or construction, on the disputed portions of the property. If this is truly the case, Defendants should have absolutely no objection to a legal prohibition from doing so. Defendants are essentially conceding that they would suffer no harm if the preliminary injunction were issued.
The Court finds that the status quo should be maintained pending the final determination of this action or further order of the Court.
“On granting an injunction, the Court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the Court finally decides that the applicant was not entitled to the injunction. Within five days after the service of the injunction, the person enjoined may object to the undertaking. If the Court determines that the applicant's undertaking is insufficient and a sufficient undertaking is not filed within the time required by statute, the order granting the injunction must be dissolved.” (Code Civ. Proc., § 529, subd. (a).)
“Notwithstanding rule 3.1312, whenever an application for a preliminary injunction is granted, a proposed order must be presented to the judge for signature, with an undertaking in the amount ordered, within one Court day after the granting of the application or within the time ordered. Unless otherwise ordered, any restraining order previously granted remains in effect during the time allowed for presentation for signature of the order of injunction and undertaking. If the proposed order and the undertaking required are not presented within the time allowed, the TRO may be vacated without notice. All bonds and undertakings must comply with rule 3.1130.” (Cal. Rules of Court, rule 3.1150 (f).)
By way of their reply brief, Plaintiffs request that the bond be in the amount of $10,000.00. Defendants do not argue that it should be in a larger amount. As such, the undertaking will be in the amount of $10,000.00.
Plaintiffs will be given two Court days, or July 12, 2024, to file a proposed order and undertaking.
NOTICE: We may not have a court reporter for the trial of your case. We do have a court reporter for CMC and L&M Calendars. Check with the Court before you hire your own court reporter. If counsel wants to hire a court reporter, it will be your obligation to retain one for the trial. There can only be one official record of Court proceedings, and only a reporter appointed by the Court may report a Court proceeding. Only one reporter will be allowed to report a Court proceeding at any given time. If the parties cannot agree on a reporter, the Court will make the selection after you submit the name and address of the court reporter each counsel has engaged. Counsel will notify the Court 10 days in advance of the trial date if you are going to provide a court reporter. You may request that the electronic recording system that is already installed in the Courtroom be used. Information about that may be obtained from the Court’s website.
Ruling
KALE FREDHOLM, ET AL. VS R.E.C. DEVELOPMENT, INC.
Jul 10, 2024 |
22STCV09833
Case Number:
22STCV09833
Hearing Date:
July 10, 2024
Dept:
40
Superior Court of California
County of Los Angeles
Department 40
KALE FREDHOLM, an individual; MARIA FREDHOLM, individually and as Guardian Ad Litem for Minor PELESTENE FREDHOLM, an individual; ALICIA GILLILAND, individually and as Guardian Ad Litem for Minor RYAN NAEMARK, an individual; DANA GILLILAND, an individual; ANDREA CUTSHALL, individually and as Guardia Ad Litem for Minor MATTHEW ERICK CUTSHALL, an individual, and Minor JASON ALLEN CUTSHALL, an individual; ROSA MONTOYA, an individual; AMBER WASHINGTON, an individual; and ANGELA DADE, an individual,
Plaintiffs,
v.
R.E.C. DEVELOPMENT, INC., also known as Real Estate Connection; LAN, A LIMITED PARTNERSHIP; and DOES 1 through 50 inclusive,
Defendants.
Case No.:
22STCV09833
Hearing Date:
07/10/24
Trial Date:
07/16/24
[TENTATIVE] RULING RE:
Petitioner Guardian Ad Litem Maria Fredholms Expedited Petition to Approve Compromise of Pending Action for Minor of Person with a Disability.
T
he named Plaintiffs bring this breach of habitability suit against their landlords or former landlordsDefendants R.E.C. Development, Inc. and LANbased on allegations that the Defendants rented to the Plaintiffs four different rental units with numerous alternate uninhabitable conditions and that the Defendants faileddespite numerous complaints by the Plaintiffsto remediate these conditions in the Plaintiffs respective rental units, all located at 22307 Kent Avenue, Torrance, CA 90505 (Subject Premises). These conditions include(d): cockroach and rodent infestations; lack of adequate control of infestations; resulting health problems to tenants; water leaks and intrusion; toxic mold causing mold spores to float in the air and be inhaled by plaintiffs; holes and cracks in the ceilings and/or interior walls; damaged and deteriorated carpeting/flooring; inoperable heating; lack of air conditioning; lack of sanitary plumbing; lack of fixtures in bathrooms; inoperable stoves or ovens; broken kitchen cabinets; an unsanitary and unsafe pool; and extensive trash strewn across the common areas.
On May 21, 2024, Guardian Ad Litem Maria Fredholm filed with the Court an unopposed Expedited Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability (the Petition) in favor of Plaintiff Pelestene Fredholm. The Petition details a gross $50,000.00 Settlement between the Parties, with a distribution of gross distribution $45,100.00 to each Maria Fredholm and $4,900.00 for Pelestene Fredholm, and a final net settlement of $3,551.41 for Pelestene Fredholm.
Expedited Petition to Approve Compromise for Minor or Person with Disability: GRANTED
Legal Standard
: Under Code of Civil Procedure section 372, any settlement of a claim made by a minor or adult with a disability must be approved by the Court.
(See also Prob. Code § 3600, subd. (b) [a compromise or covenant for a disputed claim or damages, money, or other property of a minor or person who lacks legal capacity is valid only after it has been approved by the superior court].) ¿A petition for court approval of a compromise of a minor or disabled adults compromise or settlement of a pending action or proceeding to which this person is a party must be verified by the petitioner and must contain a full disclosure of all information that has any bearing upon the reasonableness of the compromise, covenant, settlement, or disposition.
(Cal. Rules of Court, rule 7.950; see also Cal. Rules of Court, rules 7.951-52.)
The petition is generally submitted on a completed
Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability
(form MC-350).
(Cal. Rules of Court, rule 7.950.)
If the Court is satisfied that the settlement is in the best interest of the¿person, then the Court should approve the settlement.¿¿(See
Pearson v. Superior Ct.
¿(2012) 202 Cal.App.4th 1333, 1338.)¿¿¿¿
Procedural Requirements
: A review of the instant Petition shows that it meets the requirements of California Rules of Court, rules 7.950 to 7.955.
The Petitions satisfy California Rules of Court, rule 7.950.
Petitioner Maria Fredholm submits a verified Civil Form MC-350EX seeking a settlement between R.E.C. Development, Inc. also known as Real Estate Connection (R.E.C., Development, Inc.) and Pelestene Fredholm. (See Petition, p. 7 [Petitioner verification].)
Further, the Petition contains a full disclosure of all information that has any bearing upon the reasonableness of the compromise, covenant, settlement, or disposition, in satisfaction of California Rules of Court, rule 7.950.
The Petition details $50,000.00 in gross settlement funds to be distributed to the Fredholm family.
(Petition, ¶ 3.)
Plaintiff Maria Fredholm is set to receive the gross settlement of $45,100.00.
(Petition, Attach. 12.)
Pelestene Fredholm is set to receive a gross settlement of $4,900.00 and net compromise of $3,551.41.
(Petition, ¶ 17(f), Attach. 12; Attach. 19(b)(4).)
Additionally, $1,225.00 of the Pelestene Fredholms net settlement will be used to pay attorneys fees.
(Petition, ¶ 17(c), 14(a).) Moreover, the remaining $123.59 will be used to pay the expenses which include mediation and filing fees. (Petition 17(e), see also Ohn Decl. ¶ 8 [limiting its cost reimbursement request as to the Minor Plaintiff in the amount of $123.59].)
The Petition satisfies California Rules of Court, rule 7.951.
This requirement provides that where a petitioner that has been represented or assisted by an attorney in preparing the petition to compromise the claim or in any other respect with regard to the claim, the petition must disclose specific information, which the Petition contains as follows:
(1) The name, state bar number, law firm, if any, and business address of the attorney. (Ohn Decl. p.1) [Gerald S. Ohn, SBN 217382, The Law
Offices of Gerald S. Ohn, APC, 800 South Figueroa Street, Suite 750 Los Angeles, CA 90017].)
(2) Whether the attorney has received any attorneys fees or other compensation for services provided in connection with the claim giving rise to the petition or with the preparation of the Petition, and, if so, the amounts and the identity of the person who paid the fees or other compensation.
(Petition, ¶ 18(b) [has not nor expects to receive]).
(3) Whether the attorney became involved with the Petition, directly or indirectly, at the instance of any party against whom the claim is asserted or of any partys insurance carrier.
(N/A).
(4) Whether the attorney represents or is employed by any other party or any insurance carrier involved in the matter.
(Petition ¶ 18(a), Attach. 18(a) [is representing another party, i.e., all of the plaintiffs in this action which is the subject of this Petition]).
(5) If the attorney has not received any attorneys fees or other compensation for services provided in connection with the claim giving rise to the petition or with the preparation of the Petition, whether the attorney expects to receive any fees or other compensation for these services, and, if so, the amounts and the identity of the person who is expected to pay the fees or other compensation.
(Petition, ¶ 17(d), Ohn Decl. ¶ 8) [is not being compensated by another party]).)
(6) The terms of any agreement between the petitioner and the attorney.
(Petition, Attach. 14(a) [Redacted Attorney-Client Retainer Agreement].)
The Guardian Ad Litem Petitioner and Plaintiff satisfy California Rules of Court, rule 7.952.
The Petition states that $3,551.41 be paid or delivered to a parent of the minor on the terms and under the conditions specified in Probate Code sections 3401-3402, without bond. The name of the parent is MARIA FREDHOLM and her current address is P.O. Box 1783 Lynwood, CA 90262. Thus, a separate check in the amount of $3,551.41 shall be issued to Petitioner and parent MARIA FREDHOLM. (Petition Attach. 19b(4).)
The Petition need not satisfy California Rules of Court, rule 7.954.
This rule provides the requirements for requesting the withdrawal of funds already deposited in favor of a minor or person with a disability pursuant to a prior compromise, which is not the case here.
(See Petition generally.)
The Petition satisfies California Rules of Court, rule 7.955.
This rule requires that the Court determine whether the attorneys fees charged of a minor or a person with a disability are reasonable.
Here, the Petition contains a Declaration from Gerald S. Ohn, Esq.the attorney who represents the Plaintiffsindicating that Pelestene Fredholm will be paying 25% of their $4,900.00 gross settlementi.e., $1,225.00toward Mr. Ohns legal services.
(Petition, Attach. 14(a).)
The Court finds that a 25% recovery for the type of action at bar is reasonable.
Substantive Requirements
: The Court finds that the settlement is in the best interests of Pelestene Fredholm.
(See
Pearson
,
supra
, 202 Cal.App.4th at p. 1338.)
Pelestene Fredholm will receive $4,900.00 of which $1,348.59 will be used for attorneys fees and costs. The remainding $3,551.41 will be paid or delivered to a parent of the minor on the terms and under the conditions specified in Probate Code sections 3401-3402, without bond. Thus, a separate check in the amount of $3,551.41 shall be issued to Petitioner and parent MARIA FREDHOLM. (Petition Attach. 19b(4).) The remaining $45,100.00 of the Settlement will be distributed to her parent, Maria Fredholm is in the best position to care for her children and can use the remaining proceeds of the Settlement to further the economic welfare and physical wellbeing of Pelestene Fredholm.
Conclusion
: Accordingly, the Expedited Petition for Approval of Compromise is GRANTED.
Conclusion
Guardian Ad Litem Maria Fredholms Petition for Approval of Compromise for Minor or Adult with Disability on behalf of Pelestene Fredholm is GRANTED because the Petition meets all requirements set forth in California Rules of Court rules 7.590 to 7.595 and the Court is satisfied that the Settlement is in the best interests of Plaintiff Pelestene Fredholm.
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
GERSHMAN PROPERTIES, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY VS CH GLENDORA, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
Jul 09, 2024 |
24PSCV00472
Case Number:
24PSCV00472
Hearing Date:
July 9, 2024
Dept:
G
Plaintiff Gershman Properties, LLCs Application for Default Judgment
Respondent: NO OPPOSITION
TENTATIVE RULING
Plaintiff Gershman Properties, LLCs Application for Default Judgment is GRANTED in the reduced amount of $43,403.67.
BACKGROUND
This is an unlawful detainer action. In February 2023, Plaintiff Gershman Properties, LLC (Gershman) entered into a written lease agreement with Defendant CH Glendora, LLC (CH Glendora) in which Gershman agreed to lease commercial property in Glendora to CH Glendora. Subsequently, Gershman alleges CH Glendora breached the lease agreement by failing to pay rent. On January 24, 2024, Gershman served a three day notice to pay rent or quit on CH Glendora. CH Glendora subsequently failed to pay rent or vacate the Glendora property.
On February 7, 2024, Gershman filed a complaint against CH Glendora and Does 1-30, alleging a cause of action for unlawful detainer. On March 1, 2024, Gershmans process server served CH Glendora by posting notice at the Glendora property.
On March 19, 2024, the Court entered default against CH Glendora after CH Glendora failed to file a timely answer.
On March 25, 2024, the Court granted a default judgment for Gershman on the issue of possession only.
On May 17, 2024, Gershman submitted the present application for default judgment.
A case management conference is set for July 9, 2024.
LEGAL STANDARD
Code of Civil Procedure section 585 permits entry of a default judgment after a party has filed to timely respond or appear. A party seeking judgment on the default by the court must file a Request for Court Judgment, and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) a proposed form of judgment; (6) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment; (7) exhibits as necessary; and (8) a request for attorneys fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court 3.1800.)
ANALYSIS
Gershman seeks default judgment against CH Glendora in the total amount of $43,403.68, including $40,476.72 in damages, $1,604.31 in attorney fees, and $1,322.65 in costs. Because the Court finds Gershman has submitted sufficient evidence, the Court
GRANTS
Gershmans application for default judgment with the following modification. While Gershman requests $1,604.31 in attorney fees, the correct calculation of attorney fees pursuant to Local Rule 3.214 is $1,604.30. Accordingly, the total requested damages will be reduced to $43,403.67.
CONCLUSION
Based on the foregoing, Gershmans application for default judgment is
GRANTED
in the reduced amount of
$43,403.67.
Ruling
7561 MELROSE, LLC VS WESLEY SCOTT REARDAN, ET AL.
Jul 10, 2024 |
23STCV17398
Case Number:
23STCV17398
Hearing Date:
July 10, 2024
Dept:
58
Judge Bruce G. Iwasaki
Department 58
Hearing Date:
July 10, 2024
Case Name:
7561 Melrose, LLC v. Wesley Scott Reardan
,
et al
.
Case No.:
23STCV17398
Motion:
OSC re: Entry of Default Judgment
Moving Party:
Plaintiff 7561 Melrose, LLC
Responding Party:
Unopposed
Tentative Ruling:
Plaintiffs Default Judgment Application is denied without prejudice.
Background
This is an unlawful detainer action which arises from the alleged non-payment of rent. On July 24, 2023, Plaintiff 7561 Melrose, LLC (Plaintiff) filed a ComplaintUnlawful Detainer against Defendants Wesley Scott Reardan (Reardan), Tyler Steven Gonzalez (Gonzalez), and Does 1 to 10. According to the Complaint, Plaintiff is seeking forfeiture of the lease, reasonable attorneys fees, and damages at the rate of $666.66 per day from July 13, 2023. (UD-100 at pp. 3-4.)
On October 2, 2023, default was entered against Defendants Reardan and Gonzalez. (10/03/23 Minute Order.)
On October 30, 2023, judgment by default was entered against Defendants Reardan and Gonzalez for possession only. (10/30/23 Judgment.)
On May 20, 2024, Plaintiff filed a Request for Court Judgment form (CIV-100) seeking default judgment against Defendants Reardan and Gonzalez in the sum of $196,301.50. Also, on such date, Plaintiff filed a Proposed Judgment and Declaration of Parviz Sarshar (Sarshar) in Support of Default Judgment.
Legal Standard
California
Rules of Court
, Rule 3.1800 sets forth the requirements for default judgments. In pertinent part, the rule dictates that a party must use form CIV-100 and file the following documents with the clerk: (1) except in unlawful detainer cases, a brief summary of the case identifying the parties and the nature of plaintiff's claim; (2) declarations or other admissible evidence in support of the judgment requested; (3)¿interest computations as necessary; (4) a memorandum of costs and disbursements; (5)¿a declaration of nonmilitary status for each defendant against whom judgment is sought; (6) a proposed form of judgment; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment against specified parties under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment; (8)¿exhibits as necessary; and (9)¿a request for attorney fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court, Rule 3.1800(a)(1)-(9).)
Discussion
Plaintiff seeks default judgment against Defendants Reardan and Gonzalez.
The Court finds that Plaintiff has failed to meet the requirements of California
Rules of Court
, Rule 3.1800 in order to obtain entry of default judgment against Defendants Reardan and Gonzalez. Plaintiff has failed to: (1) provide interest computations as necessary; and (2) dismiss parties against whom judgment is not sought as the Doe defendants have not been dismissed. Plaintiffs have also failed to substantiate the requested damages as no ledger or documentation is attached to the declaration of Ms. Sarshar showing the amount of past due rent, late fees, or holdover damages. Additionally, although requesting attorneys fees, Plaintiff has not indicated whether the requested attorneys fees are allowed by statute or agreement of the parties. The declaration of Ms. Sarshar fails to set forth the basis for the requested attorneys fees.
Conclusion
Based on the foregoing, Plaintiffs default judgment application is denied without prejudice.
Document
Wilmington Savings Fund Society, Fsb, Not In Its Individual Capacity But Solely As Owner Trustee Of Csmc 2021-Rpl2 Trust v. Marco Oliveira AKA MARCO OLIVERIA, New York State Department Of Taxation And Finance, Workers Compensation Board Of The State Of New York, United States Of America On Behalf Of The Irs, Capital One Bank Usa, Na, Bank Of America, N.A., John Doe
Jul 10, 2024 |
Real Property - Mortgage Foreclosure - Residential |
Real Property - Mortgage Foreclosure - Residential |
616593/2024
Document
U.S. Bank National Association, As Trustee For Terwin Mortgage Trust 2004-18sl, Asset Backed Certificates, Series Tmts 2004-18sl v. Jenny E. Johnson, Robert Kay, 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, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises
Jul 08, 2024 |
Real Property - Mortgage Foreclosure - Residential |
Real Property - Mortgage Foreclosure - Residential |
616266/2024
Document
Newrez Llc D/B/A Shellpoint Mortgage Servicing v. Luis Alonso Zelaya Rodriguez AS HEIR OF THE ESTATE OF DANIEL ZELAYA, Francisco O. Zelaya Rodriguez AS HEIR OF THE ESTATE OF DANIEL ZELAYA, Lorenzo A. Zelaya Herrera AS HEIR OF THE ESTATE OF DANIEL ZELAYA, United States Of America Internal Revenue Service, New York State Department Of Taxation And Finance, People Of The State Of New York, Clerk Of The Suffolk County Traffic And Parking Violations Agency, Lvnv Funding, Llc, Capital One Bank Usa, N.A., Tesla, Inc., Vivint Solar Developer, Llc, John Doe And Jane Doe #1 Through #7, The Last Seven (7) Names Being Fictitious And Unknown To The Plaintiff, The Persons Or Parties Intended Being The Tenants, Occupants, Persons Or Parties, If Any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint
Jul 10, 2024 |
Real Property - Mortgage Foreclosure - Residential |
Real Property - Mortgage Foreclosure - Residential |
616594/2024
Preview
FILED: SUFFOLK COUNTY CLERK 07/10/2019 11:13 AM INDEX NO. 611202/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/10/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK --------------------------------------------------------------------x Index No.: 611202/2019 WILMINGTON SAVINGS FUND SOCIETY, FSB, AS TRUSTEE OF STANWICH MORTGAGE LOAN TRUST A Plaintiff, VERIFIED ANSWER AND AFFIRMATIVE DEFENSES -against- LISA J. MOHRMAN MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR CASTLE POINT MORTGAGE INC.; SHINNECOCK SHORES ASSOCIATION, INC.; BOARD OF DIRECTORS OF SHINNECOCK SHORES ASSOCIATION, INC.; PEOPLE OF THE STATE OF NEW YORK; UNITED STATES OF AMERICA-INTERNAL REVENUE SERVICE #12" "JOHN DOE #1 through "JOHN DOE the last twelve 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 in or lien upon the premises, described in the complaint, Defendants --------------------------------------------------------------------x Defendant, LISA J. MOHRMAN, by her attorneys, AHERN & AHERN, Attorneys & Counselors at Law, PLLC, as and for her Verified Answer to the Complaint of the Plaintiff herein, respectfully alleges and states, upon information and belief as follows: 1. The Defendant, LISA J. MOHRMAN, denies knowledge or information, sufficient to form a belief as to the allegations contained in paragraphs numbered "1", "2", "3",, "6" "7" "4", "5", and of the Plaintiff's Complaint. 2. The Defendant, LISA J. MOHRMAN, denies each and every allegation contained "9" and"10" in paragraphs numbered "8", of the Plaintiff's Complaint. 3. The Defendant, LISA J. MOHRMAN, denies knowledge or information, "11" sufficient to form a belief as to the allegations contained in paragraph number of the 1 of 6 FILED: SUFFOLK COUNTY CLERK 07/10/2019 11:13 AM INDEX NO. 611202/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/10/2019 Plaintiff's Complaint. 4. The Defendat, LISA J. MOHRMAN, denies each and every allegation contained "12" in paragraph number of the Plaintiff's Complaint. 5. The Defendant, LISA J. MOHRMAN, denies knowledge or information, sufficient to form a belief as to the allegations contained in paragraphs numbered "13", "14", "15" and "16", of the Plaintiff's Complaint. 6. The Defendant, LISA J. MOHRMAN, denies each and every allegation contained "17" in paragraphs numbered and "18", of the Plaintiff's Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE That the defendants did not receive a ninety day notice required by RPAPL Section 1304 and 1306. As such, the plaintiff may not proceed. Therefore, the court must dismiss this case on this fact alone. Furthermore, the defendants did not receive a thirty day acceleration notice. This is a condition precedent to foreclosure. AS AND FOR A SECOND AFFIRMATIVE DEFENSE That the plaintiff is attempting to charge the defendants legal fees and costs for this action. However, the plaintiff does not even attach a copy of the note and mortgage showing that plaintiff is entitled to legal fees. As such, this court must not award legal fees to the plaintiff unless the plaintiff can prove that they are entitled to same. AS AND FOR A THIRD AFFIRMATIVE DEFENSE That the plaintiff has not given proof that they are registered to do business and make mortgage loans in the State of New York. That the plaintiff should be barred from commencing this action until the plaintiff proves that they are licensed by the banking department to issue mortgage loans. 2 of 6 FILED: SUFFOLK COUNTY CLERK 07/10/2019 11:13 AM INDEX NO. 611202/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/10/2019 AS AND FOR A FOURTH AFFIRMATIVE DEFE}{SE That the plaintiff fails to state a cause of action upon which relief can be granted. To wit, the plaintiff has not proven that they have standing to bring this action as they have not provided proof of ownership of the mortgage and note. To wit, the plaintiff does not appear to be the originator the mortgage loan. The plaintiff may not proceed until the prove standing. Please see Campaigñ v. Barba, 23 AD 327, 805 N.Y.S.2d 86 (2d Dept). To establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish the existence of the mortgage and mortgage note, ownership of the mortgage and the defendant's default in payment. Also see, Household Finance Realty Corp of New York v. Winn, 19 AD3d 545, 706 N.Y.S.2d 533 (2d Dept 2005), Sears Mortgage Corp v. Taghabi, 19AD3d 402, 796 N.Y.S2d 392( 2d Dept 2005), Ocwen Federal Bank FSB v. Miller , 18 Ad3d 527, 794 N.Y.S. 2d 650 ( 2d Dept 2005); US Bank Trust Nat. Ass'n v. Butti, 16 AD 3d 408, 792 N.Y.S.2d 505 (2d Dept 2005), First Union Mortgage Corp v. Fern , 298 AD2d 490 , 740 N.Y.S2d 42 (2d Dept 2002. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE That the defendants do not believe that they have been credited with all payments made. As such, the defendants request a payment history. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE That the defendants were not qualified to obtain this mortgage loan and as such the plaintiff should not be permitted to proceed with this foreclosure action. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE That the Complaint fails to state a cause of action upon which relief can be granted. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE 3 of 6 FILED: SUFFOLK COUNTY CLERK 07/10/2019 11:13 AM INDEX NO. 611202/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/10/2019 The Court has improper subject matter jurisdiction over the claims between the parties. AS AND FOR A NINTH AFFIRMATIVE DEFENSE Improper personal service upon the Defendants, personal jurisdiction defective AS AND FOR A TENTH AFFIRMATIVE DEFENSE The Defendants have set offs and claims against any and all alleged amounts due to Plaintiff. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE Plaintiff has failed to mitigate its damages AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred, in whole or in part, by the doctrines of laches, waiver and estoppel. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred to the extent that Plaintiff's claimed damages were not proximately caused by any acts or omissions of the Defendants. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff's claim for damages are barred because they are speculative and because of the impossibility of ascertaining any such damages AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE That the alleged cause of action on behalf of the Plaintiff stated in the Complaint in the above action did not accrue within the time for the commencement of the action and is therefore barred by the statute of limitations. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE That the Verified Complaint violates the statutes of fraud AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE Defendant reserves the right to assert other Affirmative Defenses as may be warranted as discovery proceeds as well as any Counterclaims or Cross-claims. 4 of 6 FILED: SUFFOLK COUNTY CLERK 07/10/2019 11:13 AM INDEX NO. 611202/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/10/2019 WHEREFORE, Defendant, LISA J. MOHRMAN, demands judgment dismissing the Plaintiff's Complaint, together with the costs and disbursements of this action and for such other and further relief as to this Court deems just and proper. Dated: (A , 2019 Ahern & Ahern Attorneys for Defendant, LISA J. MOHRMAN One Main Street Kings Park, New York 11754 (631) 269-9500 To: ROACH & L1N, PC Attorneys for Plaintiff 6901 Jericho Turnpike - Suite 240 Syosset, New York 11791 (516) 938-3100 5 of 6 FILED: SUFFOLK COUNTY CLERK 07/10/2019 11:13 AM INDEX NO. 611202/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/10/2019 STATE OF NEW YORK, COUNTY OF SUF FOLK I, the undersigned, being duly sworn, depose and say: we are the Ddandanto L Individual Verification I am the Defendant LISA J. MOHRMAN in the within action; we have read the foregoing and same is true to our own knowledge, except as to the matters therein stated to be alleged on inform matters we believe it to be true. _ Corporate Verification I am the of , a domestic carporation and a party in the within action; I hav contents thereof; the same is true to my own knowledge, except as to the matters therein stated belief, and as to those matters I believe it to be true. This verification is made by me because t I am an officer thereof. The grounds of my belief as to all matters not stated upon my own knõw rn to befo me on July , 2019 n EfS J. piÈRMAN V.TEPEDINO NorARY PUBLIC STATEOFWW QUÁUFl£Dm SUFFOLK COUNTY NOstTE6054388 Notary Public MY Cohe4.EXP. 1PE85, 6 of 6