" 12 13 14 18 16 7 8 19 20 2 22 23 24 25 27 28 29 30 3 32 33 35 36 37 38 39 40 41 42 43, 44 45 46 47 48 49 50 SUPREME COURT COUNTY OF MONROE STATE OF NEW YORK WELLS FARGO BANK N.A., plaintiff Mone / v NOTICE OF AEHON” 4419/09 KEVIN PATRICK BRADY, defendant BE ADVISED that upon an ever growing volume of evidence showing Wells Fargo Bank to be engaging in systematic FRAUD ON THE COURT, nationwide, by knowingly commencing and prosecuting wrongful foreclosure actions, and seizing and selling real property to which it knowingly has NO COGNIZABLE INTERESTS, and this pro se defendant being a victim of the said fraud,, and now being able to prove it, conclusively, i has filed a request in supreme court upon a facially meritorious affidavit for the court to observe the FRAUD ON AND BYTHE COURT , and to act accordingly, 3 The time and date for Wells Fargo to answer these charges must be determined and <> disclosed by the court. 3 The court is advised that on — I served a copy of this Notice with all attachments by US Mail addressed to the following parties at the addresses identified Richard S. Mullen Woods, Oviatt, Gilman LLP 700 Crossroads Bldg. 2 State Street, Rochester, New York 14614 | hereby depose that everything alleged herein is true and complete to the best of my knowledge except for matters alleged on information and belief, and I believe those matters to be true. Nothing is intended tobe frivolous, : completely without merit as defined by 22 NYCRR 130.1 wt Me y tick Bie tle KEVIN PATRICK BRADY. 508 Locust Lane| carol smn Ve ou ep erey. NOTARY PUBLIC-STATE OF NEW YORK Wo. 015Me201488 uated n Monroe County ‘ey Commision expres Mey 23,2015 pce meorl ho > EBay Anil =) ast Rochester NY 14445} GuAta Special Term of the Supreme Court, Appellate Division for the State of New York County of Monroe held in the Appellate Courthouse in the City of Rochester, NY 14614 on the of 20. PRESIDING HON., NEW YORK SUPREME COURT COUNTY OF MONROE WELLS FARGO BANK N.A, plaintiff v 4419/09 KEVIN PATRICK BRADY, defendant Upon the annexed affidavit and exhibits of Kevin Patrick Brady let the putative plaintiff Wells Fargo Bank, N.A. appear before supreme court justice on at to Show Cause why the above entitled action, decisions, orders and judgments of Justice John Ark dated Dec. 17, 2009, Aug. 12, 2010, June 27, 2013, Dec. 13, 2013, April 23, 2014 , and June 18, 2014 entered at Monroe County Clerk on should not be vacated for inter alia, gross violations of defendants due process, right to equal protection under the law, and for FRAUD ON AND BY THE COURT. Sufficient reason shown, let service of a copy of this Order and the affidavits/exhibits upon which it is based be deemed good and sufficient service if made on or before Entered Appellate Court Justice" 12 13 14 18 16 7 18 19 20 a 22 23 24 25 26 27 28 29 30 3 32 33, 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 IN NEW YORK SUPREME COURT COUNTY OF MONROE STATE OF NEW YORK WELLS FARGO BANK N.A., plaintiff v PERMISSION TO EXERCISE CONSTITUTIONAL RIGHT 4419/09 KEVIN PATRICK BRADY, defendant and MOTION FOR RECUSAL TO THE COURT BE IT KNOWN that | am ‘blocked’ again, prejudiced and implicated by another ‘gatekeeper’ order impulsively issued by this court on June 19, 2074. | am ostensibly required to obtain this courts written permission to continue my attack on the fraudulent theft of my home and property under color of void court proceedings. This courts order fails to identify the reason for it's sanction that must be determined in a hearing to defend the charges against me. Yet, the reason for these charges remains unknown. Like those of other courts they came on by ambush; arbitrary, unwarranted, unconstitutional in its application and wholly oblivious to possible consequences. Your deponent notes how quick courts are to invoke orders such as this but show little regard for the burdens imputed on the enjoined party. Among other things they perpetuate| my ‘infamia facti' in the Hall of Justice and subject me to more insurmountable prejudice. They are essentially undistinguishable from overt denial of access to court; a.k.a extrinsic| fraud, And yet NO REAL PARTY has ever accused me of the scourge that courts claim they| are intended to remedy; merit less Uitigation harassment."1 12 13 4 15 16 7 18 19 20 24 22 23 24 25 26 27 28 31 32 33 35 36 37 38 39 40 at 42 43 44 45 46 47 48 49 50 While arbitrarily depriving a litigant of his/her fundament right of society, this order too fails to identify, unambiguously, any alternate, effective procedure to get facially meritorious issues before a court. AND they impose legal responsibility on the issuing court too. I return to this court having been tempered by twenty (20) years of civil rights rape and government negligence as punishment from a culture impacted with prejudice for non lawyers AND for lawful exercise of my First Amendment right, This manifests in bold, demonstrable defiance to the same Rule of the Law that court officers have sworn to uphold. They have rendered ‘law’ in this society ONLY as good as one's ability to enforce. And non-lawyers need not apply. Note that the only protection | have against another arbitrary refusal to permit this valid attack from being filed, i s ‘New York's commencement by filing system’. see ‘The Rights of Vexatious Litigants’ annexed here . “Public policy mandates free access to the courts‘ and yet there is nothing in the record to imply that | have forfeited my right by abusing the judicial process or engaging in vexatious litigation. Accordingly, it was grossly improper for this court to enjoin me from bringing any further motions without obtaining permission’. Nevertheless to avoid more abuse | request written permission to proceed. Insofar as | have absolutely NO FAITH that ‘your honor’ will adhere to any Rule of Law and/or of ethics, | request your recusal from this motion and it's reassignment to another judge. In fact, after many years of personal observation, | respectfully request that you resign from supreme court altogether. The reasons are as followsIN NEW YORK SUPREME COURT COUNTY OF MONROE STATE OF NEW YORK WELLS FARGO BANK N.A., plaintiff DEMAND TO VOID v 4419/09 KEVIN PATRICK BRADY, defendant Comes again pro se defendant for Order to Show Cause why these proceedings should not be vacated in the entirety pursuant to CPLR 5015 (a] (2) (3)(4] to wit; fatal jurisdictional defects, errors plain and manifest, constitutional deprivations and FRAUD ON THE COURT that was duly and timely objected to, that was never addressed by the court and thus render it’s orders/judgment VOID in their entirety. “Manifest error is defined as plain and indisputable and amounts to a complete disregard of the controlling law or the credible evidence in the record. A plain error is one that is so obvious and substantial that failure to correct it would infringe a party's due process rights and damage the integrity of the judicial process.” Defendant moves on existing evidence: not previously addressed and NEW EVIDENCE not available until now and showing Wells Fargo's systematic fraud on the courts. This action DID NOT conclude as to all questions at issue between the parties and all matters of defense which were or could have been raised before the judgment of foreclosure and sale to the plaintiff (see 83-17 Broadway Corp v Debcon Financial Services| Inc., 39 A.D.3d 583 835 N.Y.S.2d 602 [2d Dept 2007). This court has never issued "a final order/judgment’ here, to wit: one ‘that disposes of all causes of action between the parties in an action or proceeding and leaves nothing for further judicial action apart from mere ministerial matters’. To clearly enunciate this point requires review of the facts," 12 13 4 15 16 7 18 19 20 21 22 23 24 25 26 7 28 31 32 33 35 36 37 38 39 40 at 42 43, 45 46 47 48 49 50 Defendant's original response to the complaint of Wells Fargo Bank N.A. in April 1999, put forward multiple, specific, non waivable challenges to its claim of being the ‘owner and holder’ of the subject note and mortgage . | deposed ‘until a definitive standing is established, | challenge the courts jurisdiction to proceed. Regardless that | confused ‘standing’ with ‘capacity,’ lam far from the only one who has done so. Similar confusions are legion in New York case law and have been made by judges and lawyers alike. My challenge to capacity however was clear by the context. Ultimately there could be no mistake that | wrote ‘I challenge the courts jurisdiction to proceed.” My pro se challenge may have been perceived amusing and/or frivolous to Judge John Ark and opposing attorneys because ' it is well established that New York Supreme Court is of| original, unlimited and unqualified jurisdiction. But this was nevertheless irrelevant to a resolution of the dispute Supreme court admittedly has subject matter jurisdiction over foreclosures brought pursuant to the RPAPL, but is not competent to hear suits brought by a non-aggrieved party, foreclosure or not. Because there was no aggrieved party and thus no genuine controversy, the court has no subject matter, no genuine controversy. Pro se defendants challenge invoked mandatory inquiries on the court that prohibited summary judgment, They went totally ignored. When Wells Fargo’s motion for summary judgment was served 72 days after the complaint, it acknowledged the clearly enunciated threshold defects/objections but overtly failed to address them in good faith The affiant; Herman John Kennerty mocked and purposely misrepresented Brady's answers by false statements such asSowmv meena 1" 12 3 14 15 16 17 18 19 20 2 22 23 24 25 26 a 28 29 30 31 32 33 35 36 7 38 39 40 a 42 43 45 46 47 48 49 50 * [Brady) denies knowledge and information to form a belief as to the allegations AND asserts certain denials ‘as immaterial for purposes of summary judgment. He deposed ‘defendant ‘generally’ challenged WFB for lack of capacity and/or standing. On the contrary. They were not general denials and thus required putative plaintiff to meet| the threshold burden of proof. This too was ignored. | submit that ifthe trial judge was performing as neutral trier of fact, he would have confirmed Kennerty's ‘bad faith’. If he had given liberalized interpretation to pro se pleadings, also as required, he would have found them sufficient to require proof of \WFB's standing and/or capacity to invoke supreme courts jurisdiction. Note the pertinent commencing allegations . Complaining Attorney Brad Davidzik alleged upon information and belief at parag (1) that WFB was"the owner and holder of a_note and mortgage being foreclosed’. At (3°) he alleged’ the mortgage was subsequently assigned to Bank United but makes no reference tothe Note. These statements were ultimately impeached and surreptitiously removed retroactively by a March 2014 ex parte motion of subsequent attorney for WFB; Richard Mullin. Nevertheless, the rule in New York is “a plaintiff lacks standing where there is no proof that BOTH the mortgage and note have been assigned to plaintiff. HSBC Bank USA v Miller 26 Misc 3d 407 (NY Sup Ct. Sullivan County 2009) “Proof of mortgage assignment alone is NOT sufficient to constitute standing in a foreclosure suit.”Swewrvansons " 12 13 14 15 16 7 18 19 21 22 23 24 25 26 27 28 30 31 32 33, 35 37 39 a 42 43 44 45 46 47 48 49 50 ‘Itis well established that an assignment of the mortgage without the underlying note is a nullity (U.S. Bank Nat. Assn. v Dellarmo, 94 AD3d 746, 748 [2d Dept 2012}: HSBC Bank USA v Hernandez, 92 AD3d 843, 843-844 (2d Dept 2012]: Deutsche Bank National Trust Co. v Barnett, 88 AD3d 636, 637 (2d Dept.2011) The New York Court of Appeals, In Merritt v Bartholick, (36 NY 44] held that as a mortgage is incidental to the debt it is intended to secure; the security cannot be separated from the debt, and exist independently of it (HSBC Bank USA, N.A. v Miller 26 Misc 3° (Supreme Ct, Sullivan County 2003). In this case even the alleged transfer papers were ‘robosigned’. perjured and inadmissible This means, inter alia, NO NOTE, NO SECURED DEBT and NO SEIZURE OF PROPERTY. Now the affidavit for summary judgment by Herman John Kennerty. Parag. 10 ‘Plaintiff has demonstrated the existence of the Note and Mortgage *** If defendant wishes to challenge the documentary evidence ** he must submit material evidence noting it's deficiency with specificity Note the self serving rhetoric, The controlling rule in New York is “Plaintiff must plead and prove as part of its prima facie case that it owns the note and mortgage and has the right to foreclose. Wells Fargo Bank, N.A., 80 AD3d 753, 915 N.Y.S.2d 569 (2d Dept 2011): Argent Mtge. Co., LLC v. Mentesana, 79 AD3d 1079, 915 N.Y.S.2d 591 (2d Dept 2010); Campaign v Barba, 23 AD3d 327, 805 NYS2d 86 (2nd Dept 2005). Kennerty at Parag. 13 ' to foreclose a Mortgage a prima facie entitlement to summary judgment Is established by the existence of the Note and Mortgage and defendants default. The burden then shifts to the defendant to show existence of a triable fact.Kennerty knew or should have known that 'to foreclose a mortgage, the plaintiff must establish the existence of the mortgage and the mortgage note, ownership of the mortgage, and the defendant's default in payment (Household Finance Realty Corp. of NY v Wynn, 19 AD3d 545 (2d Dept 2005): Sears Mortgage v Yahhobi, 19 AD3d 402 (2d Dept 2005}; Ocwen Federal Bank FSB v Miller, 18 AD3d 527 [2d Dept 2005); U.S. Bank Trust Nat. Assin v Butti, 16 AD3d 408 (2d 2005): First Union Mortgage Corp. v Fern, 298 AD2d 490 (2d Dept 2002); Village Bank v Wild Oaks Holding, Inc., 196 AD2d 812 (2d Dept 1993)). Kennerty knew or should have known that the burden of proof for summary judgment is ALWAYS on the movant. Kennerty at Parag 14 is simply more smoke and mirrors At Parag 16 ‘Asit currently stands, there Is a written Note, secured a Mortgage******** Then where was it? Defendant would like to know because NO PROOF WHATSOEVER was ever submitted to show the owner and/or whereabouts of these documents or who owned them at the time of commencement. WEB simply duped the court into summarily dismissing pro se defendants answer after deeming ita ‘limited notice of appearance’. In fact the only party entitled to summary ludgment was the pro se defendant. On or about October 10, 2009 pro se defendant moved the court to take notice. WEB defaulted this action by failing to appear on the return date: September 2009. The attorney of record, Steven Baum Associates, sent Rochester attorney John Belluscio to appear instead, but without the knowledge and/or authority from WFB. Thereafter, on Dec. 17, 2009 this court signed an order of DISMISSAL containing several redactions and yet acquiescing away defendants home and property for the mere asking,DEFENDANT/VICTIM NOTES ‘one of the most fundamental questions of law is whether a given court has jurisdiction to preside over a given case, It is well established that a court's jurisdiction over parties appearing before the court, may be challenged by any party. and at any time. Upon such challenge, the court is compelled to answer the challenge, and prove to the challenger's reasonable doubt that it possesses jurisdiction for a particular action before the court. The maxim of law therefore, substantiated by numerous case cites, is that once challenged, a court's jurisdiction must be proven, NY supreme court notwithstanding, Here, this court perceived the pro defendant to be wholly insignificant and ignored my threshold jurisdictional challenge for the next three (3) and a half years. In April 2013 defendant sought an Order to Show Cause citing CPLR 5015 (a] 2, 3, 4 and deposing that the purported mortgaged transfers were riddled with fraud and so vitiated the courts already fatal jurisdiction. With no apparent concern or inquiry for merits . Ark denied and dismissed the motion. He feigned ‘[t)he issue of standing was of necessity decided against defendant’. He gave no ruling on the fraudulent ‘evidence! alleged ARK IGNORES NEW YORK RULES OF EVIDENCE Rule 4511 (2) Judicial notice shall be taken of matters specified in this subd. if a party requests it ** in the pleadings ** (c) ** every matter ** shall be determined by the judge **[and) included in his findings ** (d) ** the court may consider any ** document *or argument on the subject. (or) discovered through its own research. ** a printed copy of ** written law ** published by a government **** as evidence of existing law in the judicial tribunals of the jurisdiction where it isin force, is prima facie evidence ***BSowmrvsHseons " 12 B 14 15 16 7 18 19 20 a 22 23 24 25 26 7 28 29 30 34 32 33 35 37 38 39 40 4 42 43 44 45 46 a7 48 49 ‘The challenge Ark perceived [‘standing’] was NOT the challenge that was made, { capacity } albeit mislabled and there was no cognizable law of this defective case In Wright v. Rite Aid of NY, Inc., 288 a.d.2d 834, 732 n.y.s.2d 498 ( 11/09/2001) the appellate division, Fourth Department said: “The court erred in (denying motion] based on ** law of the case. That doctrine applies to issues *essential* to the prior determination (Papa Gino's. v Plaza at Latham Assocs., 144 AD2d 172: Gould v International Paper Co., 223 AD2d 964, Campertino & Fatti Bldrs. v Dimovich Constr. Corp., 175 AD2d 595, AND it contemplates that the parties had a “full and fair’* opportunity to litigate those issues (People v Evans, 94 NY2d 499, 502, rearg denied 96 NY2d 755). FAILURE TO PROVE CAPACITY Even after the commencing pleading defects were challenged, with specificity, Kennerty deposed ONLY ‘the existence of the Note and mortgage being foreclosed. Colleague Barrett Herndon deposed ONLY having reviewed them. These veiled self serving statements were insufficient to plead or prove capacity New York jurisprudence may allow veiled, duplicitous pleadings to invoke subject matter. but NOT when affirmed only upon information and belief by attorneys and NOT when ‘capacity’ is challenged with specificity as in defendants answer. “Where standing is put into issue by the defendant, a plaintiff must prove its standing if it is to be entitled to relief (see Bank of N.Y. Mellon v Gales, 116 AD3d 723; Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931, 932; Bank of N.Y. v Silverberg, 86 AD3d 274, 279; USS. Bank, N.A. v Collymore, 68 AD3d 752. 753).CITATIONS ‘Abare statement from the plaintiff's servicing agent that the original note was in the possession of the plaintiff as of commencement is not sufficient to establish standing without “factual details” as to physical delivery of the note (HSBC Bank USA v Hernandez, 92 A.D.3d at 844; see Homecomings Fin., LLC v Guldi, 108 A.0.3d Bonk Nott. Trust Co. v Haller, 100 A.0.3d at 682). ‘Conclusory boiler plate statements such as “[p]laintiff is the holder and is in possession of the original note or “[p)laintiff is the holder and Is in possession, or is otherwise entitled to enforce the note.” will not suffice when standing is raised as a defense (see Deutsche Bonk Notl. Trust Co. v Burnett 88 A.D.3d 636, 931 N.Y.S.2d 630 (2d Dept 2011); Aurora Loan Services, LLC v Weisblum, 85 A.D.3d 95. 923 N.¥.S.2d 609 (2d Dept 2011). Defendants challenge was not subject to the ‘waiver rule’. see WFB Minnesota v. Mastropaolo, (N.Y.App.Div. (2007). The purported ‘documentary evidence’ Kennerty refers to was nothing of the kind. There was no trial. No acceptance into evidence. Ark simply took every allegation, every alleged ‘evidence’ and every proposed order of WFB at complete face value. Thus, this action was coram non judice from the outset. The purported ‘documentary evidence’ consisted of ‘robosigned’ mortgage assignments that appear to have been manufactured by WFB specifically to defraud courts and homeowners into believing that WEB had suffered some injury. Defendant objected BUT ‘no one was heard in opposition’ This court must hear me now." 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 35 37 38 39 40 4 42 43 47 48 49 50 To this day there is absolutely NO EVIDENCE that Brady's original promissory note is. anywhere other than with the loan originator; Fleet Real Estate Funding Company who ceased to exist upon the bankruptcy of Washington Mutual on September 26, 2008. There is no explanation on record as to why Ark turned a non waivable threshold challenge to WFB's ‘capacity’ and ‘standing’ into a cryptic accelerated termination citing a ‘limited notice of appearance’ with no one heard in opposition AND there is nothing to support that (t]he issue of standing was of necessity decided against defendant’ Insofar as defendants challenge was simply ‘steamrolled’: never diligently adjudicated, NO FINAL JUDGMENT has issued from this court. The Judgment of Foreclosure and Sale dated August 12, 2010 was fatally defective on it’s face anyway. There were no proceedings as alleged. There was no trial on the issues. | submit that Arks orders were based solely on the fraudulent statements, fraudulent documents and the ex parte proposed order of Rochester attorney John Belluscio without my knowledge or approval. The ‘Judgment’ also falsely claims that ‘all of the defendants have been duly served’ This is pure fiction. Ark and Belluscio simply steamrolled over my right to bring into this action those who had long encumbered my property with void judgment liens | repeatedly insisted that the judgment creditors must be made parties. + RPAPL 51311 (3) requires ‘every person having any lien or incumbrance upon the real property which Is claimed to be subject and subordinate to the lien of the plaintiff. 1* RPAPL § 202(1] says where such parties have an interest, the instant complaint \ set forth: (dJetalled facts showing the particular nature of the (state's) interest in or lien on the real property. ‘Ark responded only that ‘a party cannot sue the State in supreme court’ + RPAPL 81313 “the state may be made a party defendant to an action for the foreclosure of a mortgage on real property where it has an interest in or a lien on the property subsequent to the lien of the mortgage sought to be foreclosed in said action, in the same manner asa private person. ‘THE SMOKING GUN (On or about October 20, 2011, Chief Judge Jonathan Lippman publicly disclosed that the courts were seeing ‘systemic structural failings in the foreclosure process, ***** He lamented “[wJe cannot allow (our) courts to stand by idly and be party to what we now know Is a deeply flawed process *** ‘judges and lawyers have a responsibility not to closa their eyes to paperwork errors - even if they seem minor” Accordingly. administrative rule #### now requires every attorney representing a bank na foreclosure to file a signed affirmation swearing that he or she took “reasonable” steps to verify the accuracy of the documents filed in the case. On or about May 9, 2014 | received an order signed by Ark on April 23, granting an ex parte| motion of WFB attorney Richard Mullen ' to, inter alio, omit from the record, the ONLY words that have ever colored this action with capacity for plaintiff. * WEB is the owner and holder of the note and mortgage being foreclosed’ "New attorney of record for WFBBewrvs|9ssena 1" 12 3 4 15 16 7 18 19 20 2 22 23 24 25 26 7 28 29 30 31 32 33 35 36 7 38 39 40 at 42 43 45 46 47 48 49 Mullen's ‘AFFIRMATION’ says At para. 9 ‘this firm attempted to comply (with the new rule] BUT our client advised they are unable to confirm the accuracy of the [material documents) ‘Mullen’s ‘AFFIRMATION’ Parag. 10 ‘Plaintiff cannot confirm the proper execution (of assignments] but has verified that the ‘amounts and the claims (of the Servicer] are accurate. | submit that Mullen knew or should have known that these statements were no less a FRAUDON THE COURT than were WFB's entire previous statements. He knew or should have known that the authority he cited to bring the motion had no instant application. Pursuant to CPLR § § 2001 and 5019 ********courts look to purposes of the statutory requirements and whether (they) have been substantially satisfied to determine the Jurisdictional issue “but they may not exercise discretion to cure defects (CPLR 2001) unless jurisdiction is actually acquired over a defendant. Travis v New York Dept. of Envtl. Conservation. 185 AD2d, at 715, itis now shown that his ex parte motion was NOT to cure defects AND regardless, Ark had never addressed defendants jurisdictional challenge anyway. And, defendant advised Ark that the Fourth Dept had already observed WFB's ‘scheme’ and identified it constructively as a FRAUD. See Wells Fargo Bank N.A v Podeswik , > 2249 NY, at 134-139, 32014-01045 [ 2/14/2014]Scavansona 1" 12 B 14 15 16 17 18 19 20 24 22 23 24 25 27 28 29 30 31 32 33 34 35 36 37 38 39 40 a 42 43 45 46 47 48 49 50 “when presenting its nunc pro tune motion, at worst, WFB perpetrated a FRAUD ON THE COURT and at best, engaged in misconduct by not revealing all of the facts to the court.”. ‘Ark simplycontinued his pattern of nonfeasance; non judice for pro se party. Accordingly, one really has to wonder how deep the corruption and chaos in supreme court goes. “It should hardly need to be stated that trial courts are bound to follow the holdings of the Appellate Division. But even if they were not, state trial courts are bound to follow existing precedent of a higher court, even though they may disagree. * see Valley Stream Medical & Rehab, P.C. v. Liberty Mutual 831N.Y.S.2d 682 (N.Y.City Civ.Ct. 02/23/2007) People State New York v. Towndrow (02/05/93) Duffy v Horton Mem. Hosp., 66 N.Y.2d 473, 475; Ross Bicycles v Citibank, 149 A.0.2d 330, 331; Mullin ASKED Ark (at 13 J to validate the frauds anyway claiming it ‘would not prejudice a substantial right of any party.” Ark did in fact verify them. Obviously, defendant had a substantial right NOT to be defrauded of my home. And the Unified Court System had agreed even for pro se defendants. The purpose of the new rule was to protect the homeowner from corporate marauding, NOT to forgive and provide remedy to corporate fraudsters who had invoked jurisdiction by fraudulent statements and fraudulent evidence. Nevertheless, | observe no attempt whatsoever by WFB or Mullen to comply with the intent of the rule. ONLY to ‘sneak past it which Ark ultimately allowed them to do, Mullen's purported ‘irregularities’ exemplify the systematic FRAUD ON THE COURT that is manifest by my subsequent discovery of the Wells Fargo Foreclosure Manual. This cheat is well into the public domain and its intend has been verified by New York Federal Bankruptcy Court Judge Robert Drain. # 10-20010 ROD 1/29/2015 4eavonsuns 10 1 12 13 4 15 16 ”7 18 19 20 21 23 24 25 28 a7 28 29 30 31 32 33 34 35 36 7 38 39 40 a 42 43 45 46 47 48 49 50 The March 11, 2014 affidavit of KIMBERLY ANN MUEGGENBERG's is not only impeached on its face it is irrelevant to show anything other than continuing attempt to deceive. MUEGGENBERG at Parag 2. IF the mortgage had in fact been assigned to GSMPS 2005 it would have to have been BEFORE the closing date in 2005; essentially six (6) years earlier. Defendant had raised this issue in March 2013 by Order to Show Cause. Ark ignored it. Parag 3. Mueggenberg admits that her jab functions derive from ‘servicing mortgage loans’ for Wells Fargo. Apparently, the obviously fabricated ‘allonge’ was introduced at the ex parte hearing or was intended to be so. While it had never even been alleged to exist before, it suddenly appeared in the file at Monroe County Clerk after the hearing. Insofar as this case was ostensibly terminated in Dec. 2009 in WFB's favor. It is unclear why it appeared now. | submit that itis evidentiary ONLY as another manufactured document intending to prove what WEB has otherwise failed to prove. Contrary to MUEGGENBERG at Parag 4 there is sufficient space available on the subject Note for endorsement so as to proscribe use of an allonge which itself is fatally defective. it lacks any date of assignment and/or receipt, and contains a scribbled redaction, AND is not securely attached to the Note as required. In the final analysis, WFB was not the owner and holder of the note and mortgage and thug had no authority to ‘assign’ anything. They had ONLY obtained the servicing rights of WAMU in July 2006. (Evidence, public domain, July 2006)" 12 3 14 18 16 7 18 19 21 22 23 24 25 26 27 28 29 30 34 32 33 35 36 37 38 39 40 a 42 43 45 46 47 49 ‘Ark knew or should have known that the only proper office of a nunc pro tunc order is to correct a mistake in the records; it cannot be used to rewrite history.” €.g., Transamerica Ins. Co. v. South, 975 F.2d 321, 325-26 (7th Cir. 1992): United States v. Daniels, 902 F.2d 1238, 1240 (7th Cir. 1990): King v. lonization Int'l, Inc., 825 F.2d 1180, 1188 (7th Cir. 1987) Central Laborer's Pension and Annuity Funds v. Griffee, 198 F.3d 642, 644(7th cir. 1999). Defendant submits that the agenda of the ex parte motion was to surreptitiously omit material words from the commencing complaint: ‘and the owner and holder of a note and mortgage being foreclosed’ Thus, at the moment Ark signed the order on April 23, 2014, he ‘validated’ another FRAUD ON THE COURT and on defendant AND rendered subject matter jurisdiction VOID for failure| to plead and prove capacity/injury and for failure to state a claim There is NO credible and/or cognizable defense for the relief they were granted. “A statement that a court lacks ‘jurisdiction’ to decide a case may. in reality, mean that elements of a cause of action are absent. Questions of mootness and standing of parties may be characterized as raising questions of subject matter jurisdiction. But these are not the kinds of judicial infirmities to which CPLR 5015 (subd {a}, par 4) is addressed. That provision Is designed to preserve objections so fundamental to the power of adjudication of a court that they survive even a final judgment or order. * This is especially applicable here where defendant had raised this objection at the outset and yet Ark ruled only that [t]he issue of standing was of necessity decided against defendant’. If any such decision had been made this aggrieved pro se defendant was never advised. * Lacks v Lacks, 41 NY2d 71, 74-75, 359 N.E.2d 384, 390 N.Y.S.2d 875 (1976))Pro se defendant has suffered enough from judges and lawyers so impacted with prejudiced and contempt for pro se litigants as to rise to the level of extrinsic fraud. Ark willfully deprived me of the right to defend my home and property. summarily, at the outset. with no credible explanation and ‘no one heard in opposition’. He knew or should have known that the so-deemed ‘limited notice of appearance’ was conditional, not absolute and demanded only that the mandatory prerequisites for ‘capacity’ be proven. To avoid yielding to pro se demand, Ark simply acquiesced to the inferior premature Motion for Summary Judgment, and provided relief that was procedurally proscribed Arks behavior has been consistently egregious, and it amounts to criminal negligence and criminal abuse of power that constitutes ‘flaunting’ of judicial immunity. It has continued even after it was brought to his attention by earlier Motion for Recusal.. He is clearly more concerned that | am living ‘rent free’ or that | wish to get a free house while he is oblivious to the fact that he has broken procedural law, jurisdictional law and state and federal constitutions to enable Wells Fargo to do the same thing His ‘order’ dated June 18, 2014 purports ‘the court has also examined all the submissions by counsel for plaintiff and pro se defendant,” he is unlikely to have read the 30-40 pages submitted [ see Pg 5 Transcripts June 18, 2014 and issue order the very same day. | submit with 150 % conviction that attorneys Brad Davidzik, John Belluscio, (appearing without authority] Jonathan Samon and Richard Mullen, have knowingly exceeded acceptable standards for legal advocacy and have exploited ‘systemic structural failings i the foreclosure pracess with intent to defraud me of my home and property, AlL of which has been tacitly suborned by Judge John Ark. ot1" 12 13 14 15 16 7 18 19 ra 22 23 24 25 26 27 28 29 30 34 32 33 37 38 39 40 4 42 43 45 46 47 48 49 50 “Silence can only be equated with fraud where there Is a legal or moral duty to speak or when an inquiry left unanswered would be intentionally misleading.” U.S. v. Tweel, 550 F.2d 297 (1977). To my profound life altering misfortune owing to twenty years up close and personal with our contemporary ‘independent’ third branch of government, | have become essentially an expert on what really happens in our courts: why itis so often said (paraphrased] that the ‘man who attempts to represent himself in court is a FOOL... Former Virginia attorney, Linda Kennedy expressed it best when she described it as “Holodeck Law, where nothing is as it appears, and where litigants are never to be seen again..... with money. Rochester writer and attorney, Amy Bach, wrote in her 2009 best seller: ‘Ordinary Injustice’ results when a community of legal professionals becomes so accustomed to a pattern of lapses that they can no longer see their role in them.” hereby depose emphatically that my agenda is NOT to get a free house or free rent. The Honorable Judge Ark should know this IF he had read the papers | filed below to redress the VOID judgment liens on my property that sabotaged my twenty (20) year career as a bonded securities broker and subjected me to foreclosure. However, upon substantial information and belief, courts don't bother reading papers submitted pro se. and in fact have punished and ostracized this aggrieved pro se party unanimously to avoid having to adjudicate my claims. This is apparently because non lawyers are not subject to ABA rules of confidentially that every lawyer pledges their superior allegiance to over state and federal constitutions, so as to protect the integrity of the judiciary. 4" 12 13 “4 15 16 7 18 19 20 21 23 24 25 26 27 28 29 30 31 32 33 35 37 38 39 40 4 42 43 45 48 47 48 49 50 One only has to consider what this pro se litigant has been subjected to merely for having exercised my FIRST AMENDMENT right to sue and defend myself in court. See Brady v Ark, Dollinger and other jurisdictionally VOID judgments. This action under Article 78 may or may not be pending at this time in the Fourth Dept. | have TWICE requested ‘gatekeeper’ review of the pleadings [300 plus pages) but have thus far been denied permission to file. Under these extraordinary circumstances, plenary review of my twenty years of judicial abuse and negligence is absolutely necessary. REMEDY BY APPEAL |S INADEQUATE AND NOT NECCESSARY CPLR 5501 (a) (1) provides that “(an appeal from a final judgment brings up for review... any non-final judgment or order which necessarily affects the final judgment” ({emphasis added); see Weierheiser v Hermitage ins. Co., 17 AD3d 1133, 1134). However, appeal from a non-final order or intermediate order does not bring up for review prior non-final orders (seé Meltzer v Meltzer, 63 AD3d 703; Joseph Davis Indus. Servs. v Sicoll & Massaro, 289 ‘AD2d 984; Baker v Shepard, 276 AD2d 873, 874). For purposes of CPLR 5501 (a) (1), “a final order is one that disposes of all causes of action| between the parties in an action or proceeding and leaves nothing for further judicial action apart from mere ministerial matters” (Town/Coeymans v Malphrus, 252 AD2d 874, BE THIS KNOWN. Your pro se deponent is a natural born American: resident of New York since 1962 and of Monroe County since 1982. | am not an attorney licensed to practice in New York, | have however thoroughly researched the issues here and | know they have i merit" 12 13 4 18 16 7 8 19 20 2 22 23 24 25 26 27 28 29 31 32 34 35 36 37 38 39 40 4a 42 43 44 45 46 47 48 49 Since 1995 | have filed forty (40) or more facially meritorious petitions/motions in courts to obtain relief that is declared mandatory in New York. My supporting proof is mostly prima facie. My estimated costs exceed $10,000, And yet NO COURT has ever adjudicated even a (1) single issue on which | invoked jurisdiction. EVERY petition has been dismissed essentially suo sponte, as a sanction, without notice, without a hearing or a finding of failure to state a claim. | have NEVER been allowed past the complaint stage, AND, no government attorney has been required to admit or deny m allegations. Ihave been criminally prosecuted six (6) times in Monroe County justice courts; convicted by trusting, but ill-informed juries, fined, punished by incarceration and ordered to report to probation officers for years thereafter. However as a matter of well established law EVERY accusatory instrument failed to state a crime or offense cognizable in New York courts. Consequently, EVERY court and EVERY prosecutor had knowingly acted against ma without trial and/or subject matter jurisdiction. Although | asserted these fatal defects at EVERY arraignment, the judges and prosecutors: ignored me and proceeded to trial. Despite having been convicted there is NO EVIDENCE in any trial record that meets the standards of proof required. enunciated the fatal defects again in my pro se appeals and included prima facie proof, Still EVERY conviction was wrongfully sustained, ” EVERY post conviction petition to vacate or set aside the absolutely VOID proceedings was denied without a hearing and on overt intellectually dishonest dispositions. * with one exception Patricia Marks 1997. Alex Renzi 2007. John DeMarco 2011, Vincent Dinolfo 2011 Craig Doran 2012 4"1 12 13 4 15 16 7 18 19 21 24 28 27 28 31 32 33 34 35 36 37 38 39 40 41 42 43 45 48 47 48 49 In 2002-2004, | suffered two (2} quasi criminal prosecutions in and by supreme court a transparent subterfuge that proceeded knowingly without personal and subject matter jurisdiction and in conspiracy with the Department of Law, Contrary to the prejudicial opinions of Judge John Ark. lam NOT seeking to live ‘rent free’. In fact I seek to be free to live again without wanton judicial abuse and ostracism. ‘As a demonstrable matter of numerous court records | have attempted to liquidate this property since 2005 and was prohibited by systematic extrinsic fraud. Nevertheless, Wells Fargo, KNEW this action was wrongful when it was commenced. And | have been immobilized in my home ever since. and this action was filed in law, NOT equity. Wells Fargo KNEW it was wrongful and yet persisted with its fraud. Consequently defendant has suffered additional life altering emotional and financial injuries that Wells Fargo MUST be accountable for. Insofar as this is INDEFENSABLY THE LAW IN NEW YORK, Defendant demands judgment against Wells Fargo Bank N.A. of $50,000 payable within 30 days. SUMMARY For the reasons deposed here, it should be infinitely apparent that this motion MUST be assigned to a judge other than John Ark and to be adjudicated, according to law and to state the legal basis for his/her decision upon conclusion. For the same reasons, this action MUST be vacated, dismissed and/or set aside with prejudice, 21Finally, defendant submits having met the prerequisites for permanent injunctive relief against any and every attempt to enforce Arks orders, to wit: ‘parties ‘seeking injunctive relief must demonstrate (1) likelihood of ultimate success on the merits; (2) irreparable injury if preliminary injunction is not granted; and, (3) a balancing of the equities in their favor. And bear the burden of proof as to each element of the claim for injunctive relief. CPLR § 6301 | demand equal protection under the law. Ihereby depose that everything alleged herein is true and complete to the best of my knowledge except for matters alleged on information and belief, and | believe those matters to be true. Nothing is intended| to be frivolous, vexatious, and/or completely without merit as defined by 22 NYCRR 130.1 el KEVIN PATRICK BRADY) 508 Locust Lane ee We me abs | On yori 1 East Rochester NY 14445 HA 7 Ma C (KAREN A. SMITH pe SHOUT AR TOCTICAY. sean ita eu vrs No. 018M6241488 Qualified in Monroe County My Commission Expires May 23, 2015 St GurlWells Fargo to buy WaMu's $140B mortgage servicing portfolio - San... hitp://www-bizjournals.conveastbay/stories/2006/07/17/daily22.hum. From the San Francisco Business Times thttp:/ / www. bizjournals.com /eastbay /stories/2006/07/17/daily22.htmI Wells Fargo to buy WaMu's $140B mortgage servicing portfolio Jul 19, 2006, 2:15pm PDT Updated: Jul 19, 2006, 2:15pm PDT Mark Calvey Wells Fargo said Wednesday that it has agreed to buy Washington Mutual's entire Portfolio of government mortgage servicing and a portion of its conforming, fixed-rate portfolio, totaling $140 billion and representing about 1.3 million servicing customers. As part of the deal, Wells (NYSE: WFC) also will acquire WaMu's (NYSE: WM) Milwaukee servicing operation. Terms were not disclosed. The transaction will allow Washington Mutual to focus on more profitable products and businesses while letting Wells take advantage of the tremendous fixed costs involved with servicing mortgages. Wamu's total servicing portfolio after the transaction is completed will include 4 million customers with outstanding principal balances totaling $692 million, Mortgage servicing is the business of collecting payments from borrowers and providing customer service. Wells has grown its mortgage servicing portfolio at a compound annual growth rate of 25 percent since 1995. Today's acquisition will boost the San Francisco bank's mortgage servicing portfolio by 13 percent. Although the price paid was not disclosed, itis likely it fell into CEO Dick Kovacevich's strategy of being a disciplined acquirer eager to get a good price. “We expect this transaction to exceed our required internal rate of return even before factoring in any cross-sell to these new customers," said Howard Atkins, Wells Fargo's chief financial officer. Calvey is a reporter for the San Francisco Business Times. Toft 4/13/2015 9:19 AMhttp://stopforeclosurefraud.com/wp-content/uploads/2014/03/foreclosuré_attorney_procedure_manual-l pdf Wells Fargo Home Mortgage Foreclosure Attorney Procedure Manual, Version 1 Status Revision 3 Origination Date: 11/09/2011 Date Last Published: 02/24/2012 Purpose Pre-Introduction We ask that you share this manual within your office, including those who may not be directly involved, to educate your staff on the Foreclosure program High Level Description of Process Delinquent loans will be referred to the attomey once set up in the Foreclosure Workstation after the expiration of the demand. The attomey will be handing these loans from Referral to Sale!Confimmator/Redemption, The assigned Wells Fargo liaison will assist the attomey with any issues that arise outside of the normal process and review audit resuts. Upon completion of the required documentation, the attorney will be authorized to file the Foreclosure Notice, keep Wells Fargo up to date, and address objections to the Foreclosure without loan level approval under established timeframesiguidelines. Any over-allowable or hourly fee requests not listed in the pre-approval form will require loan level approval from Wells Fargo. Ifthe attomey receives notice of an adversary, ligation issue, motion for sanctions, or any issue the attomey cannot ‘complete in a time manner timely or any issue that will cause a delay in the timely execution of the sale, refer to the Litigation section ofthis manual. Wells Fargo wil provide further instruction upon receipt of the communication from the attomey. The attorney wil also be required to receive authorization forall over-allowable fees and costs as well as hourtybiling requests for tems not covered by the pre-approval form, Ifthe mortgagor contacts the attomey, and the attomey is unable to answer, the customer should be directed to the appropriate customer service number listed below. At no time should the Wells Fargo Liaison’s direct phone line be provided to outside parties. Wells Fargo Home Mortgage Foreclosure Customer Service ~ 1-800-868-0043 ‘America's Servicing Company Customer Service ~ 1-888-828-2377 Overview ‘The Foreclosure program has been designed to complement a Foreclosure attomey’s current process, procedures and responsibilities through streaming the necessary contact points with Wells Fargo and providing greater independence to the attomey's firm ‘The program also leverages existing Wells Fargo automation. One of the key trigger points for automation is the ‘addition of scheduled steps and the completion of steps (though the input of the actual date.) The expanded procedures of this section focus solely on the new expectations of the firms, Each process section will have a breakdown of the overall flow, exact steps for exception processing, an outline of any reports that will be sent to the attoriey, and specific compliance expectations and quality measurements. Please remember that the reports are to be a tool to assist in meeting all ime frames, goals and compliance requirements. Foreclosure Attomey Procedures Manual intemal use only, Page 1 This is intended only for privileged confidential use