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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SUFFOLK
---------------------------------------------------------------------------------------X
BANK OF NEW YORK MELLON FKA THE BANK OF.
NEW YORK, AS TRUSTEE , ON BEHALF OF THE HOLDERS OF
THE ALTERNATIVE LOAN TRUST 2006-OA17, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2006-OA17,
Index # __________
NOTICE OF MOTION
Plaintiff(s),
-againstXXXXXXXXXXXXXXXXXXXXXXXXXX, ET AL.
Defendant(s).
---------------------------------------------------------------------------------------X
PLEASE TAKE NOTICE that upon the annexed affidavit of __________,
Esq. attorney for Defendant, ______________________, sworn to on the __ day of
September, 2014 and upon all the prior pleadings and proceedings had herein, the
Defendant, through his attorney, will move this Court located at One Court Street,
Riverhead, New York 11901, in front a Supreme Court Judge., on the
___ day of October 2014 at 9:30 oclock in the forenoon, or as soon thereafter as can be
heard for an order pursuant to :
CPLR 213(4), Statute of Limitations, Violations of EPTL 7-2.4; CPLR 3211(a)(3),
Plaintiffs lack of legal capacity to sue; CPLR 3211 (a)(5), the cause of action may not
be maintained because statute of frauds; RPAPL 15 to Compel the determination of a
claim to Real Property and Quiet Title and for such other and further relief as this Court
deems just and proper.
PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 2214 (b), you are
hereby required to serve copies of your answering affidavits on the undersigned no later
than the seventh (7th) day prior to the date set forth above for the submission of this
motion.

Dated : October ___, 2014


Hauppauge, New York

_______________________________
Attorney for Defendant
To:
Mitra Paul Singh, Esq.
McGlinchey Stafford PLLC
112 W 34th, Street, Suite 1403
New York, NY 10120
(646) 362-4000

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF SUFFOLK
---------------------------------------------------------------------------------------X
BANK OF NEW YORK MELLON FKA THE BANK OF.
NEW YORK, AS TRUSTEE , ON BEHALF OF THE HOLDERS OF
THE ALTERNATIVE LOAN TRUST 2006-OA17, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2006-OA17,
Index # ________
AFFIDAVIT IN SUPPORT
Plaintiff(s),
-againstXXXXXXXXXXXXXXXXXXXXXXXX, ET AL.
Defendant(s).
---------------------------------------------------------------------------------------X
STATE OF NEW YORK
ss:
COUNTY OF SUFFOLK
______________ Esq., being duly sworn, deposes and says :
1.

The Defendant, _______________ by his attorney, _______________ Esq.,

hereby complains, alleges, affirms and herein Prays for relief by way of a Decree and
Order granting Quiet Title to Defendant relative to the subject real property or,
alternatively dismissing the Plaintiffs Complaint pursuant to CPLR 213(4), CPLR
3211(a)(3), CPLR 3211 (a)(5) and EPTL 7-2.4.
2.

As attorney for Defendant _____________, I am fully familiar with the facts and

circumstances in this action and make this Affirmation in support of Defendants Motion.
Statements made herein are based upon information and belief. The sources of the
information and grounds for my belief reflected in this Affirmation are from examination
of the various papers filed in connection with this action, my independent investigation of
this matter, inspection of the various documents and the foreclosure file maintained in the
Office of the Suffolk County Clerk, all applicable Statutes and Law as well as any
applicable case Law.

3.

Defendant represents that there is an ongoing foreclosure proceeding in effect

governing, concerning or relative to the Parties herein as to subject real property.


4.

IN REM JURISDICTION

Plaintiff herein alleges that at all times relevant hereto, instant action is an In
Rem action relative to the subject property which is within the jurisdiction of the
Supreme Court of Suffolk County where the subject property is so situated and physically
located as fully described herein.
5.

BACKGROUND

Defendant _________________ executed a Promissory Note (Hereinafter


GREENPOINT Note), to GREENPOINT MORTGAGE FUNDING, INC. on October 15,
2004 promising to pay the sum of $372,000.00
As collateral, Defendant _____________, executed and acknowledged a mortgage
in the amount of $372,000.00 and dated October 15th, 2004 and recorded in the Office of
the Clerk of Suffolk County on November 4th, 2004 under Liber 00020902 page 196.
The Mortgage was made in favor of M.E.R.S. as nominee for Lender
GREENPOINT MORTGAGE FUNDING, stating for purposes of recording this
Mortgage, M.E.R.S. is the Mortgagee of record.
The Subject Mortgage was assigned to M.E.R.S. as Nominee for
COUNTRYWIDE BANK, NA by an Assignment of Mortgage signed on June 13th, 2006
by KATHLEEN L. DOUGLAS as Authorized Signatory and Notarized by LESLIE E.
FINAN. The document was recorded on September 15th, 2006 in the Office of the
Suffolk County Clerk under Liber 00021383, Page 437.
Defendant _______________ then executed a Promissory Note, (hereinafter 1st
COUNTRYWIDE Note), to COUNTRYWIDE BANK, NA on June 13th, 2006 promising
to pay the sum of $257,919.16. The 1st COUNTRYWIDE NOTE was endorsed solely
by Defendant _________________, with no further Lender endorsements, or allonge.
As collateral, Defendants ___________ and ____________ executed and
acknowledged a mortgage in the amount of $257,919.16 and dated June 13th, 2006 and
recorded in the Office of the Clerk of Suffolk County on September 15th, 2006 under
Liber 00021383, 436.

The Mortgage was made in favor of M.E.R.S. as nominee for Lender


COUNTRYWIDE BANK, NA, stating for purposes of recording this Mortgage,
M.E.R.S. is the Mortgagee of record.
Also on June 13th, 2006, Defendant ____________ executed a consolidated
Promissory Note, (hereinafter 2nd COUNTRYWIDE Note), to COUNTRYWIDE BANK,
NA promising to pay the sum of $629,900.00. The 2nd COUNTRYWIDE NOTE was
endorsed solely by Defendant MIA MAIO, with no further Lender endorsements, or
allonge.
Defendants __________ and _____________ then execute and acknowledge a
Consolidation, Extension and Modification Agreement (hereinafter The C.E.M.A.) also
on June 13th, 2006 in the amount of $629,900.00 and recorded in the Office of the Suffolk
County Clerk on September 15th, 2006 under Liber 00021383, 438.
The C.E.M.A. was acknowledged by DEBRA GRIPPO as Branch Manager for
M.E.R.S., the Mortgagee, the signature line for COUNTRYWIDE BANK, NA was left
blank and unsigned.
Exhibit A to the C.E.M.A references that the Mortgage was being assigned to
M.E.R.S. as Nominee for COUNTRYWIDE BANK, NA by assignment of mortgage to
be simultaneously recorded with the C.E.M.A.
Exhibit C to the C.E.M.A. is an attached consolidated Adjustable Rate Note
executed and acknowledged by Defendants ___________ and _____________ to
COUNTRYWIDE BANK NA, (hereinafter 3rd COUNTRYWIDE Note), promising to
pay $629,900.00. The 3rd COUNTRYWIDE NOTE was endorsed solely by Defendant
MIA MAIO, with no further Lender endorsements, or allonge.
Exhibit D to the C.E.M.A. is an attached Consolidated mortgage dated June 13th,
2006, executed and acknowledged by Defendants _____________ and __________ and
recorded in the Office of the Suffolk County Clerk on September 15th, 2006 under Liber
21383, 438

6.

UNENFORCEABLE DEBT
N.Y. CVP. LAW 213 : NY Code - Section 213: Actions to be commenced

within six years: (4) an action upon a bond or note, the payment of which is secured by a

mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a
mortgage of real property, or any interest therein.
Defendant ___________ asserts that he began receiving acceleration letters from
COUNTRYWIDE during summer of 2007, (June/July 2007), which would be the time
the six-year Statute of Limitations would have begun.
It is uncontroverted that Plaintiff commenced this action by filing the Summons
and Verified Complaint in March 18th, 2014, more than six years after the outstanding
principal on the mortgage became due and owing.
The law is well settled that, even if a mortgage is payable in installments, once a
mortgage debt is accelerated, the entire amount is due and the Statute of Limitations
begins to run on the entire debt (see, Rols Capital Co. v Beeten, 264 A.D.2d 724, 696
N.Y.S.2d 48; [*4] Loiacono v Goldberg, 240 A.D.2d 476, 477, 658 N.Y.S.2d 138). As this
court stated in Federal Natl. Mtge. Assn. v Mebane (208 A.D.2d 892, 618 N.Y.S.2d 88),
once a mortgage debt is accelerated, "the borrowers' right and obligation to make
monthly installments ceased and all sums [become] immediately due and payable", and
the six-year Statute of Limitations begins to run on the entire mortgage debt ( Federal
Natl. Mtge. Assn. v Mebane, supra, at 894).
Defendant seeks to have the Mortgage C.E.M.A. and Promissory Note(s) declared
Null, Void and legally unenforceable and removed as a cloud upon Defendants property.

7.

LACK OF STANDING / UNATHENTICATED PROMISSORY NOTE


The GREENPOINT Note has an unnumbered, undated allonge with an

endorsement stamp which reads, Pay To The Order Of COUNTRYWIDE BANK, NA.,
Without Recourse, GREENPOINT MORTGAGE FUNDING, INC., By KATHLEEN L.
DOUGLAS as Authorized Signatory . The specific endorsement on the allonge is
unsigned. The signature line is blank. (see Exhibit _). This facially valid allonge fails
to establish negotiation from GREENPOINT to COUNTRYWIDE, thus concluding,
although the underlying Mortgage may have been assigned, it appears that the Note could
not have passed with it.

In IndyMac Bank F.S.B. v Garcia, 2010 NY Slip Op 51127(U) [28 Misc 3d


1202(A)] Summary Judgment was denied for failure to submit proper evidentiary proof,
including an affidavit from one with personal knowledge, of a valid indorsement of the
note or assignment of the mortgage, sufficient to establish the plaintiff's ownership of the
note and mortgage at the time the action was commenced, that, the indorsement was on
a separate page, did not reference the subject note and was undated.
Plaintiff has not annexed sufficient evidentiary proof of the delivery and/or other
transfer of the Note to by the original lender, GREENPOINT.
In order to commence a foreclosure action, the Plaintiff must have a legal or
equitable interest in the Mortgage ( see Katz v East-Ville Realty Co.., 249 AD2d 243,
243, 672 N.Y.S.2d 308). Where the Plaintiff is the assignee of the mortgage and the
underlying note at the time the foreclosure action was commenced, the Plaintiff has
standing to maintain the action (Federal Natl. Mtge. Assn. v Youkelsone, 303 A.D.2d
546, 546-547, 755 N.Y.S.2d 730; see also First Trust Natl. Assn. v Meisels, 234 A.D.2d
414,414, 651, N.Y.S.2d 121).

8.

LACK OF STANDING / VOIDABLE ASSIGNMENT OF MORTGAGE


The original mortgage Defendant ____________ made in favor of M.E.R.S. as

Nominee for GREENPOINT MORTGAGE FUNDING, INC in the amount of


$372,000.00 and dated October 15th, 2204 and recorded in the Office of the Clerk of
Suffolk County on November 4th, 2004 under Liber 00020902 page 196 was assigned to
M.E.R.S. as Nominee for COUNTRYWIDE BANK, NA by Assignment of Mortgage
dated June 13th, 2006 and recorded in the Office of the Suffolk County Clerk on
September 15th, 2006 under Liber 00021383, 437, (hereinafter COUNTRYWIDE AOM).
The COUNTRYWIDE AOM, was acknowledged by KATHLEEN L. DOUGLAS
for M.E.R.S. as Nominee for GREENPOINT, (hereinafter DOUGLAS), apparently, the
same DOUGLAS whose name appears on the endorsement stamp on the allonge to the
Note.
This Assignment of Mortgage which was recorded prior to the commencement of
this action was executed by a party without authority to do so and therefore Plaintiff

lacked standing to commence this foreclosure. The Plaintiff should have produced a
Power of Attorney proving the authority to execute the assignment.
Plaintiff should have produced a Power of Attorney for this, and every assignment
in order to prove to the Court the authority to execute the assignment(s) from M.E.R.S.,
as Nominee.
N.Y. RPP. LAW 254 : NY Code - Section 254: Construction of clauses and covenants
in mortgages and bonds or notes
Section 254 (9) Power of attorney to assignee. The word "assign" or other words of
assignment, when contained in an assignment of a mortgage and bond or mortgage and
note, must be construed as having included in their meaning that the assignor does
thereby make, constitute and appoint the assignee the true and lawful attorney,
irrevocable, of the assignor, in the name of the assignor, or otherwise, but at the proper
costs and charges of the assignee, to have, use and take all lawful ways and means for the
recovery of the money and interest secured by the said mortgage and bond or mortgage
and note, and in case of payment to discharge the same as fully as the assignor might or
could do if the assignment were not made.
No proof authorizing DOUGLAS as Authorized Signatory has been provided
nor has any 2006 M.E.R.S. Corporate Resolution appointing her as a signing officer.
(see HSBC Bank USA v Vasquesz, NY Supreme Court, Kings County (24 Misc.3d
1239(A)). The assignment was deemed invalid as it failed to include a Corporate
Resolution or Power of Attorney showing how the agent (Authorized Signatory), is
vested with the authority to assign the mortgage.
Your Affirmant then conducted an independent Internet search in an attempt at
ascertaining identity of the Authorized Signatory, DOUGLAS.
The search revealed that DOUGLAS is an Attorney admitted to practice in New York
and partner in the Law firm of Cullen and Dykman, LLP in Garden City, New York.
(see attached Exhibit _)
Also found were several various publically recorded documents also bearing the
signature of DOUGLAS, as Authorized Signatory all of which significantly differ from
one other and in turn differ from that on the instant assignment, leading your Affirmant to

believe this assignment of mortgage a fabricated, RoBo Signed document and as such
voidable.
9.

MERS MORTGAGE TRANSFERS ILLEGAL / UNENFORCEABLE


United States Bankruptcy Judge Robert Grossman has ruled that M.E.R.S.s

business practices are unlawful. He explicitly acknowledged that this ruling sets a
precedent that has far-reaching implications for half of the mortgages in this country.
The Judge rejected every aspect of M.E.R.S.s argument. The Court rejected the
claim that M.E.R.S. could be both holder of the mortgage as well as nominee of the
true owner. It also found that mortgagee of record is a vague term that does not give
one legal standing as mortgagee. Hence, at best, M.E.R.S. is only a nominee. It rejected
M.E.R.S.s claim that as nominee it can assign notes or mortgages a nominee has
limited rights and those most certainly do not include the right to transfer ownership
unless there is specific written instruction to do so. The Judge wrote:
According to M.E.R.S., the principal/agent relationship among itself and its members is
created by the M.E.R.S. rules of membership and terms and conditions, as well as the
Mortgage itself. However, none of the documents expressly creates an agency
relationship or even mentions the word agency. M.E.R.S. would have this Court
cobble together the documents and draw inferences from the words contained in those
documents.
He went on to disparage M.E.R.S.s claim that since in legal theory the mortgage
follows the note, the Court should overlook the fact that M.E.R.S. separated them. He
stopped just short of saying that by separating them, M.E.R.S. has irretrievably destroyed
the clear chain of title, although he hinted that a future ruling could come to that
conclusion:
M.E.R.S. argues that notes and mortgages processed through the M.E.R.S. System are
never separated because beneficial ownership of the notes and mortgages are always
held by the same entity. The Court will not address that issue in this Decision, but leaves

open the issue as to whether mortgages processed through the M.E.R.S. system are
properly perfected and valid liens. see Carpenter v. Longan, 83 U.S. at 274 (finding that
an assignment of the mortgage without the note is a nullity); Landmark Natl Bank v.
Kesler, 216 P.3d 158, 166-67 (Kan. 2009) ([I]n the event that a mortgage loan somehow
separates interests of the note and the deed of trust, with the deed of trust lying with some
independent entity, the mortgage may become unenforceable).
10.

DEFECTIVE ASSIGNMENT / VOID AB INITIO


Attached to Plaintiffs Complaint is an assignment of mortgage recorded August

25th, 2011. The cover Recording Page states the number of pages as being 5 although
plaintiff has only included 3 pages to the Complaint, consisting of, the Recording Page,
an undated Recital Page and a separate Acknowledgement page.
The Recital Page does not contain any reference as to a date this assignment was
supposedly made, in fact, the only dates on this page are referencing the mortgages that
were being assigned. This recital page doesnt include any signatures for anyone
executing this assignment. (see attached Exhibit _)
The Acknowledgement Page states that a SRBUI MURADYAN appeared in front
of the Notary and executed and acknowledged the instrument on August 1st, 2011.
Interestingly, COUNTRYWIDE was out of business July 31st, 2008. Curious as
to how this mortgage has been assigned from a company that ceased to exist.
Furthermore, the mortgage was being assigned into a Trust which also ceased to
exist, as the closing date for the Trust was September 29th, 2006.
Asserting the chain of Assignments of Mortgage to be defective, Defendant seeks
to have these Assignment declared null, void, legally unenforceable and removed as a
cloud against Defendants title; or in the alternative, proving that Plaintiff is not the true
holder in due course, that Plaintiff lacks legal standing and capacity to sue, a dismissal of
the instant foreclosure action, with prejudice.

11.

PROMISSORY NOTE SECURITIZATION


Securitization involves the rapid transfer (as per the Plaintiff, Transfer or SALE)

of loans through a chain of parties. The entity that ultimately holds the loan works
through a number of agents, each with different roles and responsibilities. The failure of
any or all of these parties to uphold their legal obligations creates chaos in maintaining
the record title to real property essential to homeownership.
Property law requires recording these sales publically. Notes must be affixed
(permanently) to the security instrument a mortgage without the note has been ruled a
nullity by the Supreme Court. MERSs recommended business practice (with the
servicer retaining the note) would make the mortgages a nullity. Therefore, a
complete chain of title is required to foreclose on property every sale of a mortgage
must be endorsed over to the purchaser, and properly recorded. Without this, it is illegal
to foreclose on property no matter how many payments the Defendant has missed.
Any break in the chain of endorsements along with any break in the chain of title
renders the Power of Sale clause in the security instrument to be a nullity and therefore
no party can foreclose on the real property.
BANK OF NEW YORK MELLON appears to have securitized the loan, through
the Pooling and Servicing Agreement ALTERNATIVE LOAN TRUST 2006-OA17
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OA17 (hereinafter
The PSA), dated as of December 1st, 2006 between CWALT, INC., (the Depositor)
COUNTRYWIDE HOMES LOANS, INC., PARK GRANADA LLC, PARK MONACO
INC., PARK SIENNA LLC, (the Sellers), COUNTRYWIDE HOME LOANS
SERVICING LP, (the Master Servicer) and THE BANK OF NEW YORK, (the Trustee)
As per the instant PSA, the stated Cut Off Date of the Trust is provided under
Article I-5 as stated Cut Off Date : October 1st , 2006
As per the instant PSA, the stated Closing Date of the Trust is provided under
Article I-5 as stated Closing Date : September 29th, 2006
The Assignment of Mortgage was allegedly executed on August 1st, 2011 and
recorded on August 25th, 2011 by the Plaintiff.
Under New York Trust Law, every sale, conveyance or other act of the trust on

contravention of the Trust is Void. EPTL 7-2.4. Therefore, the acceptance of the Note
and Mortgage by the Trustee (BONY) after the Trust closed, would be Void.
see Wells Fargo Bank, N.A. v Erobobo, 042913 NYMISC, 2013-50675.
Defendant seeks an immediate discontinuance of Plaintiffs Action and the
Assignment of Mortgage be declared Null, Void and Legally unenforceable.
The securitization gives rise to a number of genuine issues of material fact that
will preclude Plaintiff from maintaining this action, there being insufficient evidence
presented to the Court that BONY is the legal owner and holder of the Note, that the
Assignment of Mortgage is fabricated and void being a breeder document used by
BONY in facilitating the illegal foreclosure of Defendants property.
It is also believed that there may be genuine issue of material fact whether the
asset pool receive[d] the loan in accordance with the [Pooling and Servicing Agreement]
terms, transferring physically from the Originator to the Sponsor to the Depositor to the
Trust, with all intervening endorsements to the Custodian.
Plaintiff misdeeds in connection with their securitization of billions of dollars of
mortgages have been the subject of numerous investigations, state Attorneys General
lawsuits, court findings of fact, and consent orders. Recently, numerous colleagues of the
Plaintiff agreed, collectively, to pay to the U.S. Treasury a total of approximately $5
billion in civil penalties for their mortgage documentation and foreclosure-related
misconduct. These monetary fines and other civil and criminal actions do not, however,
repair the voluminous number of invalid documents filed all over this country.
These mortgage-backed securities are governed by PSAs, the practices above
make the securities unsecured debt and there is no solution. The securities are no good.
(This would be a Representation & Warrant violation as the MBSs stated that a secured
indebtedness was to be purchased, but since the Trustees of the securitization would not
have the notes, the securities cannot be secured.).
In furtherance of Plaintiffs creation and maintenance of mortgage backed
securities the bundling and packaging of mortgage loans into investment vehicles
Defendant maintains, Plaintiff has filed,
(a)

Falsified, forged, and/or fraudulently executed mortgage-related


documents and,

(b)

Mortgages and deeds of trust assigned to and through MERS,


that Defendants created for the express purposes of hastening their
securitization deals and avoiding the costs of maintaining accurate and
publicly recorded real estate documents regarding transfer and assignment
of mortgages.
Plaintiff systematically created the falsified, forged and/or fraudulently executed

mortgage documents filed with the Suffolk County Clerks Office by what infamously has
become known as robo-signing, which is the practice of signing mortgage assignments,
satisfactions and other mortgage-related documents in assembly-line fashion, often with a
name other than the affiants own, and swearing to personal knowledge of facts of which
the affiant has no knowledge.
Plaintiffs scheme, that failed to disclose and track ownership in mortgages
accurately, was manifested in a private electronic registry many of the Defendants
created called the Mortgage Electronic Registration System (MERS). Through
MERS, Plaintiff disrupted citizens fundamental right to determine through public
searches who holds interests in property.
Plaintiffs systematic schemes have confused, misled, and deceived Defendant,
numerous borrowers, homeowners, and other citizens who relied on the validity of the
Plaintiffs actions.
Plaintiff herein alleges, without confirming the existence or validity thereto, that
any and all debt, loan(s), and or promissory notes relative to, and that which allegedly
have been secured by any security, alleged security instrument, and or alleged
Mortgages referenced herein, have been partially and or fully and completely
Securitized, and or Sold, Assigned, and or Transferred into an Investment and or
Securitized Investment Trust or Pool. As such, and by virtue of the selling, assigning and
or transferring of said, Debt, Loan(s) and Promissory Notes and the lack or absence of
any corresponding assignment of the relative Security, Secured Instrument and or
Mortgage, resulted in any and all Rights, Title, and or Interests to property, allegedly held
by any of the Name or Un-Known Defendants herein relative to the Security, Secured
Instrument and or Mortgage, has been extinguished, relinquished, discharged and or
detached as to any and all debt, loans and or promissory note.

12.

Plaintiff has not complied with Administrative Order 431/11 requiring the

plaintiff's counsel in a residential mortgage foreclosure action to file with the court an
affirmation confirming the accuracy of the plaintiff's pleadings. In cases pending on the
effective date of the Administrative Order, where no judgment of foreclosure has been
entered, the attorney affirmation is required to be filed at the time of filing of either the
proposed order of reference or the proposed judgment of foreclosure (US Bank, NA v.
Boyce, 93 AD3d 782 [2nd Dept 2012]).
13.
Plaintiff repeats and re-alleges each and every allegation contained in paragraphs
1 through 12 of this Motion as though fully set forth at length herein.
WHEREFORE, Defendant demands judgment as follows :
(a)

Alleging the Complaint fails to establish a chain of ownership of the notes


and mortgages from Countrywide to the Plaintiff, Defendant requests that
Plaintiffs action be dismissed with prejudice;

(b)

Judgment declaring the BANK OF NEW YORK assignment of void ab


initio and removed from the subject property as a cloud against
Defendants title;

(c)

Judgment dismissing the Plaintiffs Complaint, with prejudice;

(d)

and for such other and further relief as this Court deems just and proper.

DATED: October ___, 2014


__________________________
, Esq.
Attorney for Defendant