5*83713780 Pg 2lZ

At a spee ial term of *uprenre csurt for the fftate

of New York, faunty of Msnrse, held in eounty

Gaurthouse in the e ig of Hocheeter, NY cn

PREEIDING

NEW YORK SUPREME COUHT EOUNTY SF MONROE

$TATE OF NEW YORK
3*.'1 i u1qlq
WELLS FARGO BANK, NA

KEVINFATHICK BRADY

Upon the annexed affidavit= and exhibit* sf K*vin Fatrie k Brady, Iet pieintiff eFFear

on
- Eb, r! I .*&fq a t-& Hi-^-r

the aclian diemisced with prejudie* and defendant csrnpenssted for injuries,

Sufficient reaeoft having been shpwR, Iet eervi*e Bf this Order and affidavits on which it

is ba=ed be deemed gaed and *ufficient sErviee if rnade Bn sr before$\+re-e.. B q , 2e r $

lt
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date
IN NEW YORK SUPREME COURT COUNTY OF MONROE
STATE OF NEW YORK

KEVIN PATRICK BRADY

v
#4419/2009
WELLS FARGO BANK N.A

AFFIDAVIT FOR ORDER TO SHOW CAUSE

Defendant comes by CPLR 5015 with newly-discovered evidence confirming the fraud,
misrepresentation, or other misconduct that has permeated these proceedings from the
outset. This confirming evidence should have prevented the action from terminating in
summary judgment.

On June 2017, in Bank of N.Y. Mellon v Anderson , 2017 NY Slip Op 05349. the Appellate
[4th] Dept. confirmed that

“Plaintiff must prove it had physical possession of the original note when the action was
commenced (see Deutsche Bank Natl. Trust Co., 142 AD3d at 684), [otherwise] it is
insufficient to establish standing.

Insofar as remedies by § 5015 are not limited to those identified in the statute, defendant
also moves on constitutional violations

The 14th Amend. USC, mandates "an opportunity, at a meaningful time and in a meaningful
manner' . . . `for [a] hearing appropriate to the nature of the case,'"
Wolff v.McDonnell, 418 US 539 (1974)

Art I, §6. NYS Const.‘ No state shall deprive any person of *** property, without due process
of law; nor deny any person within its jurisdiction the equal protection of the laws.’

1
RESTATEMENT OF FACTS

A valid judgment must show that all the issues have been adjudicated. The following
issues were not timely and accurately adjudicated for this summary judgment.

"[s]tanding to sue is critical to the proper functioning of the judicial system: a threshold
issue. The courts have jurisdiction only over controversies. A plaintiff who lacks "standing"
is not involved in a controversy; thus the courts have no jurisdiction of the case when such
a plaintiff purports to bring it. See Caprer v Nussbaum, 36 AD3d 176, 181 (2d Dept 2006),
Stark v Goldberg, 297 AD2d 203 (1st Dept 2002). Axelrod v NY Teachers' Retirement Sys.,
154 AD2d 827, 828 (3rd Dept 1989).

Although the defense that plaintiff lacks standing is deemed waived unless raised in the
answer or pre-answer motion to dismiss, Wells Fargo Bank Minnesota, N,A, v. Perez, 70
AD3d 817, 818, 894 N.Y.S.2d 509, 510 (2nd Dept 2010), Countrywide Home Loans v.
Delphonse, 64 AD3d 624, 625, 883 N.Y.S.2d 135 (2nd Dept 2009), HSBC Bank, v.
Dammond, 59 AD3d 679, 680, 875 NYS.2d 490 (2nd Dept 2009). in this case, defendant
did timely raise the defense at the outset.

Thus, Plaintiff was required to plead and prove ownership of the note and mortgage AND
the right to foreclose. Wells Fargo Bank, N.A. v Cohen, 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).

This ‘plaintiff ‘ failed to do so.

This courts’ order of June 2013 feigns ‘the issue of standing was necessarily decided
against defendant.’ but failed to state the basis for such decision. While the court is entitled
to assume the commencing allegations were true, Wall St. Associates v. Brodsky, 257
AD2d 526, 684 N.Y.S.2d 244 (1st Dept 1999), Kempf v. Magida, 37 AD3d 763, 764, 832
N.Y.S.2d 47, 49 (2nd Dept 2007] the complaint failed to allege a prima facie case.

Summary judgment constituted a Due Process violation rendering the judgment VOID

2
Plaintiff moved to amend its’ commencing pleadings in March 2014 . When this court
ratified the subterfuge by order of April 2014, the amended pleadings lacked a judiciable
question and thus failed to state a cognizable cause of action.

‘Orders entered in the absence of a justiciable question are void for deriving from court
action exceeding its jurisdiction’. Thayer, 369 Ill. at 339, 16 N.E.2d at 719 ("[E]very act of
the court beyond its jurisdiction is void.").

VIOLATION OF NEW YORK PUBLIC POLICY

The ‘foreclosure crisis’ of 2008 resulted from the dilatory practices of ‘foreclosure mills’
such as Steven Baum Assocs; and the ‘robo-signing’ of documents manufactured for court
actions. Accordingly, New York enacted emergency legislation to specifically target these
abuses. NY Senate Memo in accordance with Senate Rule VI Sec 1 Bill# S8143A of May
2, 2008 states

”To maintain the integrity of New York’s standing requirements it is critical to ensure that
those who initiate a foreclosure action actually have standing to do so. This Bill would
require the plaintiff in a foreclosure to make an affirmative allegation that it is the holder of
the note and mortgage or has been given authority to commence the action by the holder
of the note and mortgage.

In 2010, New York’s Chief Judge Lippman publicly commented

“We cannot allow the courts in New York to stand by idly and be party to what we know is a
deeply flawed process,

Subsequently, the Office of Court Administration issued A.O. 548/2010, applicable to

residential foreclosures, requiring plaintiff's counsel to attest to the accuracy of the
commencing documents and notarizations submitted to the court.

The agenda was said ‘to protect the integrity of the foreclosure process and prevent
wrongful foreclosures ‘

3
THE COMMENCING COMPLAINT.

This action was commenced by Steven Baum Assocs. in March 2009 on information and
belief only, alleging that plaintiff was a national banking association organized under the
laws of United States AND the owner and holder of a note and mortgage being foreclosed

The latter allegation eventually proved to be false

The complaint identified plaintiff as a ‘debt collector’ but failed to state it’s authority to act
on behalf of the real party creditor/beneficiary. It disclosed plaintiffs’ inability to produce
even a copy of the promissory note. A true creditor must produce the properly-negotiated
original promissory note or foreclosure is prohibited.

DEFENDANTS ANSWER

Defendant timely challenged plaintiffs claim of owning the note and asserted that until
standing had been established, supreme court lacked jurisdiction to proceed.

In the event that surplus equity existed in the foreclosed home, defendant needed to show
the encumbering liens of the State were VOID and unenforceable. Defendants cross motion
to add judgment lien holders was never decided. See RPAPL § 202 and §1311

MOTION FOR SUMMARY JUDGMENT

The affidavit of H. John Kennerty [as VP] claimed that standing was established by the
chain of assignments proffered. He deposed ‘there is a note’ but failed to produced it, or
prove ownership, or date of acquisition, or establish plaintiff as a Person Entitled to
Enforce the Note.

He then wrote: ‘Plaintiff has demonstrated the existence of the Note and Mortgage being
foreclosed.’ and ‘if defendant wishes to challenge the documentary evidence proffered he
must submit specific material evidence of its deficiency.

But in fact, there was no documentary evidence proffered. In the absence of a properly
negotiated note, plaintiff failed to establish standing

4
BROKEN CHAIN OF CUSTODY

The chain of custody proffered stopped with the transfer of documents from the original
creditor/beneficiary: Fleet Real Estate Funding to GNMA in May 1994. All subsequent
assignments were signed by individuals lacking personal knowledge of the content.

Their signatures were notarized in distant states from the alleged assignors. In fact, one
robo-signer [Gheyvandian] claimed to reside at the same California address as National
Title Clearing;; the preparer of the document.

An individual identified as Mike Hoy: VP of Bank United [Houston] deposed that he also
resided at this address and had transferred Bank United interests to GNMA on 9/2/98.

Defendant submits that it was not possible for the issue of standing to be decided against
defendant. For summary judgment, the moving party must make a prima facie showing of
entitlement to judgment as a matter of law1

SUMMARY JUDGMENT IS VOID FOR JURISDICTIONAL EXCESS

Plaintiff, in fact, defaulted the action by failing to appear on the return date, Sept,. 3, 2009
Attorney John Beluscio appeared per diem rather than as attorney of record. Beluscio
was unprepared to proceed and thus requested adjournment. On the adjourned date,
October 3rd he presented a proposed order which included the right for plaintiff to ‘cash
bid’ at auction.

However, as Plaintiff had not proven to be a secured creditor, the right to acquire the
property without cash was prohibited. Motion to deem defendants Answer a limited notice
of appearance and dismiss it was also prohibited

All proposed provisions were summarily GRANTED by Order dated December 17, 2009
which included the declaration ‘no one heard in opposition’. This courts inclination to not
hear any pro se opposition remained consistent throughout the proceedings.

1
Ferluck AJ v. Goldman Sachs & Co., 12 NY3d 316, 320 [2009])

5
LACK OF SETTLEMENT CONFERENCE

Early in 2010, I was notified by the court to attend a ‘settlement conference” which never
actually occurred. Only Beluscio appeared, again, but never actually spoke to me. He
essentially ‘filibustered’ the appearance in conversations with the court that had nothing to
do with ‘settlement’. Ostensibly he knew he lacked authority to work a settlement while
merely substituting for the attorney of record.

Note that CPLR §3408(f), 22 NYCRR §202.12-a(c)(4) provides ‘plaintiff or a representative

with authority to settle the matter MUST appear at the conference’. ‘If the homeowner
appears and is unrepresented by counsel he is deemed to have moved to proceed as a
poor person under CPLR 1101.’

This court failed to comply with this mandate.

THE SMOKING GUN

Plaintiff replaced Baum Assocs. on or about March 2014, Its new attorneys of record moved
the court, ex parte, to amend alleged benign errors in commencement under the guise of
CPLR § 2001 and § 5019 . This was a clear and obvious subterfuge.

§ 2001 is prohibited if a substantial right of a party is prejudiced" (U.S. Bank v Eaddy,

109 A.D.3d 908. Deutsche Bank Natl. Trust Co.v Lawson, 134 A.D.3d 760). It is only to
apply where the corrections do not affect a substantial right of the parties" (U.S. Bank N.A.
v Eaddy, 109 A.D.3d at 910; Deutsche Bank Natl. Trust Co. v Lawson, 134 A.D.3d 760;
Goldberger v Eisner, 90 A.D.3d 835, 836).

Plaintiff DID NOT move to amend by CPLR 5025 because the agenda was to omit the
words ‘plaintiff is the owner and holder of a mortgage and note being foreclosed .’ from the
commencing complaint. Plaintiff was in fact acting as debt collectors to enforce a mortgage
unsecured without the promissory note.

Note that ‘assignment of mortgage without the note is a nullity. NO interest is acquired by
mere assignment of the mortgage. Citimortgage. v. Stosel, 2011 N.Y. Slip Op 8319 [2nd
Dept] citing U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754 [2nd Dept 2009]; Bank of
New York v. Silverberg, 86 A.D.3d 274, 926 N.Y.S.2d 532 (2nd Dept 2011).

6
 This subterfuge implicated intention to circumvent the new affirmation requirements. This
court’s ratification of concealed material facts by order of April 28, 2014 not only rendered
the order void, it left the amended pleadings insufficient to invoke the court’s jurisdiction.

’Allowing material alterations, nunc pro tunc, is contrary to the purpose of the affirmation
requirement. [U.S. Bank v. Hemraj, Wells Fargo Bank v. Shivmangal, (I # 23627/2008),
[Sup.Ct. Queens Co July 12, 2011, Kerrigan, J.]

NO TRAVERSE HEARING

Plaintiffs only notice of this motion and appearance was by Notice of Entry of the Order. I
filed objections immediately and was entitled to a Traverse hearing. See Johnson v Deas
32 A.D 3d 253 Wells Fargo Bank, v Chaplin, 65 AD3d at 589. However, my objections
were ignored.

When the Appellate [4th] Div, encountered a similar scheme in Wells Fargo vs Podeswik. 2
it concluded; “when presenting its nunc pro tunc motion, at worst, Wells Fargo perpetrated
a FRAUD ON THE COURT. At best, it engaged in misconduct by not revealing all of the
facts to the court.”.

CONTINUOUS FRAUD ON THE COURTS

The scheme extended to the East Rochester Court in July 2016. Attorney for third party
[HSBC] duped judge Terrance Brown Steiner into granting a warrant of eviction against
defendant.. Atty. Steven Lapp deposed that the property had been sold to HSBC [as
Trustee for GSMPS 2005 RP1 Mortgage Loan Trust.

In fact, the property had NOT been sold. Plaintiff claimed to have assigned its VOID
credit bid to HSBC under authority of Julia Henrich, Esq. as agent for Wells Fargo.. No
actual cash was paid for the transaction.

Because Henrich presented the referee with neither power of attorney nor supporting
affidavit from Wells Fargo, the “Assignment ‘ is invalid. HSBC Bank N.A. v. Yeasmin, (27
Misc 3d 1227(A), Slip Copy, 2010 WL 2089273 [Sup. Ct., Kings Cty. 2010]). Wells Fargo v.
Marchione, 63 AD3d, 204 (2nd Dept 2009); and Deutsche Bank Nat. Trust v. Abbate, 25
Misc 3d 1216(A), 901 NYS2d 905 (NY Sup. 2009).

2
2014 NY Slip Op 01045 [115 AD3d 207

7
For assignment to be valid, both parties must intend to make it. (NY Jurisprudence, 2nd
Edition, Vol. 6A, Assignments § 35). also HSBC Bank USA, N.A. v. Yeasmin, 27 Misc 3d
1227(A), Slip Copy, 2010 WL 2089273 [Sup. Ct., Kings Cty. 2010]). Wells Fargo v.
Marchione, 63 AD3d , 204, 887 NYS2d 615 (2nd Dept 2009); and Deutsche Bank Nat.
Trust Co. v. Abbate., 25 Misc 3d 1216(A), 901 NYS2d 905 (NY Sup. 2009)

The only party entitled to credit bid is a senior secured creditor to the property being
auctioned. A credit bid submitted not by a secured creditor at the auction and when title is
issued directly to the Trust , as it was here, questions are raised for the accuracy of the
amount demanded in the Notice of Default.

The assignment is also void if inconsistent with the Pooling and Servicing Agreement. See
(EPT § 7-2.4) AND

Having been obtained by false pretense , the transferred deed is not merely voidable, it is
VOID. (43 Jur2d "Deeds" §218). Also (Cruz v. Cruz, 37 AD3d 754, 754 [2nd Dept. 2007];
Marden v Dorthy, 160 NY 39 [1899]; Jiles v Archer, 116 AD3d 664 (2d Dept 2014]).

REFEREE’S AFFIDAVIT

The rhetoric of the referee’s affidavit is fatally ambiguous. Summary judgment was granted
to putative plaintiff. [Wells Fargo Bank, NA]. Without the promissory note, plaintiff was not a
secured creditor and could not assign a right it did not have ,

The deed was transferred directly to a non-party [HSBC] as Trustee for the 2005 GSMPS-
RP1 Trust: rendering it apparent that plaintiff was not the owner, holder or P.E.T.E when
this action commenced, the Trust was.

WRONGFUL EVICTION

On or about September 30, 2016, with only 10 minute notice, a team of eviction thugs,
stinking of cigarettes, entered defendant’s home and removed 25 years of accumulated
household belongings into the streets. While defendant was able to recovery larger items
most items are lost forever.

Defendant submits to being absolutely entitled to recover these losses. Itemized losses
are attached.

8
THE REAL VALUE OF THE FORECLOSED PROPERTY

In Jan. 2017, Chris Artmen: Wells Fargo Bank V.P, a resident of Frederick. Maryland
ostensibly appeared in Iowa as the ‘attorney in fact’ for HSBC Board of Directors but
showed no Power of Attorney. He claims to have sold the void title to a Rochester
restoration service for $1.00.

Defendant submits this sale price reflects the actual property value considering the lost
note renders the property essentially unmarketable.

‘where the deed is void, neither grantee or subsequent grantees can acquire good title,
even if bona fide purchasers (LaSalle Bank NA v Ally, 39 AD3d 597 [2d Dept 2007]; Karen
v Hoskins, 22 AD3d 638 [2d Dept 2005]). AND the fraudulent seller is responsible.

THIS FORECLOSURE WAS VOID AB INITO

A party may only prevail in a foreclosure action without producing the underlying note
where he meets his "burden of explaining the note's loss, ownership and terms as required
by UCC 3-804" (Clovine Assoc. Ltd. Partnership v Kindlund, 211 AD2d at 573; see also
Shanmugam v SCI Eng'g, P.C., 122 AD3d 437, 438 [1st Dept 2014]; Marrazzo v Piccolo,
163 AD2d 369 [2d Dept 1990]). Absent evidence of the complete terms of the Note, plaintiff
failed to establish his prima facie case (76-82 St. Marks, LLC v Gluck, 147 AD3d 1011
[2d Dept 2017]; Wong v Wong, 86 AD3d 439 [1st Dept 2011];

In all cases where plaintiff is not the original mortgage lender, a valid transfer of the note
effecting a valid transfer of the mortgage will resolve the standing issue in favor of the
plaintiff (see Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931, One West Bank
FSB v Carey, 104 AD3d 444, US Bank Natl. Ass'n v Cange, 96 AD3d 825, 947 NYS2d 522
[2d Dept 2012]; Deutsche Bank Trust Co. Am. v Codio, 94 AD3d 1040, Bank of New York
Mellon Trust Co. NA v Sachar, 95 AD3d 695, 943 NYS2d 893 [1st Dept 2012]).

And see Bank of N.Y. Mellon v Anderson 2017 NY Slip Op 05349 [4th Dept, 2017]

9
SUMMARY AND RELIEF

This foreclosure was entirely inconsistent with due process of law. It violated defendants
right to substantive and procedural due process and New York public policy," Plaintiffs
knew, or should have known this action was fatal from the outset, and yet continued its
subterfuge for 8 ½ years, concluding only with wrongful eviction.

This court must not allow FRAUD ON THE COURT to stand. The unlawful transfer of title
must be reversed. The action must be dismissed, with prejudice.

Insofar as this court has demonstrated extreme impartiality and contempt for this pro se
defendant, this final motion for damages must be voluntarily re-reassigned to a judge
committed to New York’s ‘Excellence Initiative’: for giving the people of New York the
level of justice services they deserve .

Defendant is entitled to immediate repossession of his property.

MORE UNCONSTITUTIONAL INJUNCTIONS

This court has twice issued orders, by FIAT, without Notice, without a hearing, restricting
this defendants access to court. Clearly, this court has been influenced by defendants
‘infamia facti’: a consequence of unsubstantiated allegations perpetuated by judge
Thomas Vanstrydonck in 2002-2003. BE IT KNOWN that all judgments rendered by
Vanstrydonck are VOID for deriving from action commenced by ambush, NOT proper
service of Notice and complaint.

Defendant seeks a hearing date to show proof of allegations made here.

I do hereby swear that everything alleged and contained herein is absolutely true and complete except where stated
on information and belief, and I also believe in the truth of those statements

Kevin Patrick Brady, defendant

PO Box 862
Henrietta NY 14467

10
SL?RL\{E COLRT OF TIIE STATE OF \ES YORK
COL\TI" OF MO\ROE
x
\IELIS FARm BANrL ]iA
Plaintiff,
AF'}-IRMATION IN
OPPOSITION

vs. INDEX NO.: 4419109

KE\IbI PATRTCK BRADY,

Defendant(s).
fr ccF:
-;--------------- x
Richard S. Mullen, Esq,, pursuant to CPLR 2106, and under the penalties of perjury affirms as
follows:

1. I am an attorney duly licensed to practice law in the State of New York and an associate

with Woods Oviatt Gilman, LLP, the attorneys for the Plaintiff in the above referenced

foreclosure action. As such, I am fully familiar with the facts and circumstances of this case and

the proceedings heretofore.

PROCEDURAL HISTORY

2. This is a foreclosure action regarding the mortgaged property located at 508 LOCUST
t
LANE, EAST ROCHESTER, NY l4445(the "Premises").
3. On March 31, 2009, the Summons and Complaint were filed in the Monroe County

Clerk's Office.

4. On December 17,2009, an Order Grating Summary Judgment was granted.

5. On August 12,2A10, Judgment of Foreclosure and Sale was granted.

{6013782: }
 6. By order dated AfiI 4. 2[l3,Defedant moved by ffier to Show Cause seeking to
vacale the Order of Reference and Judgment of Foreclosure and sale for "want of jurisdiction"

and alleging Plainffilacked standing to commence the action.

7. By Decision and Order dated h:urre 27,2013 and entered June 29, 2013, the Court

dismissed Defendant's Order to Show Cause with prejudice. The court held that "the issue of

standing was of necessity decided against defendant, and constitutes the Law of the Case" and

that "the Court clearly has subject matter jurisdiction over the instant foreclosure action." A

copy of the Order is attached hereto as Exhibit A.

8. On March 20,2}l4,Plaintiff submitted a Motion pursuant to CLPR 5109(a) and 2001 for

an Order Substituting the Affidavit of Merit and Affrdavit of in Support of Summary Judgment.

9. On March 2A, 2Ol4 a copy of the complete motion, including the Notice of Motion

containing the return date were mailed to the Defendant at the property address of 508 Locust

Lane, East Rochester, NY 14445.

10. On April 23,2014 the Order to Substitute the Affidavits was granted and was filed on

Apt'rl24,2014.

I l" On or about May 22,2014 Defendant submitted a Notice of Demand to Vacate which set

to have the Order granted on April 23, 2Ol4 declared void as well as the entire foreclosure

proceeding.

12. On June 18,2014 the Court issued an Order denying Defendant's motion seeking vacatur

of.the Judgment of Foreclosure and Sale. Said Order also stated that the Defendant shall bring

no further motions without the permission of the Court. A copy of the Order is attached hereto as

Exhibit B.

{6013782: }
woc #916
 13. Defendant atso appealed the Order to Substitute the Affidavits that was granted and was

filed on Apil24,20l4. Said appeal was denied.

14. That on or about August 24,2015 Defendant f,rled an Order to Show Cause, again raising

the same issues previously decided by the Court. On December 14, 2A15, the Court denied

Defendant's Order to Show Cause with prejudice. A copy of the Order is attached hereto as

Exhibit C.

15. On May 23,2016, the foreclosure sale of the subject property occurred.

t6. On or about September 30,2016, Defendant submitted another Order to Show cause,

despite the fact that the Court denied a previous order to show cause with prejudice on December

14,2015.

t7. On February 28, 2017, the Court issued an Order barring the Defendant from bringing

any further motions or applications without the written permission of the Administrative Judge

of the Seventh Judicial District or Appellate Division, Fourth Department. Said Order also stated

that failure to comply would result in the Defendant being held in contempt of Court. A copy of

the Order is attached hereto as Exhibit D.

18. Defendant's instant Order to Show Cause failed to include any proof that he was granted

permission to bring the Order to Show Cause, as outlined in the February 28,2017 Order. As

such, it appears that the Defendant is in contempt of said Order.

DEFENDANT'S MOTION IS BARRED BY ]?l9,S "TUDIC,4ru

19. Defendant's motion must be denied because this Court already considered and rejected

Defendant's challenge to Plaintiffs standing and subject matter jurisdiction in this instant action.

Under the doctrine of res judicata or claim preclusion, "[a] final judgment on the merits of an

action precludes the parites or their privies from relitigating issues that were or could have been

{6013782: }
\r -n =:' :
a
 raised in that action." Rivet v. Reeions Bank of La., 522 U.S. 470, 476 (1988) (quoting
federated Dept Stores, Inc. v. Moitie, 452 U.S. 3g4, 3g8 (1981). Res judicata "also applies to

defenses that could have been litigated, including defenses to a foreclosure." Yeiser v. QMAC

Morte. Corp., 535 F. Supp. 2d 413,421 (S.D.N.Y. 2008); see also Swiatkowski v. Citibank, 745

F. Supp.2d 150, l7l-72 (E.D.N.Y.2010) (same); Chestnut v. Wells Fargo B.ank. N.A., No. 10-

cv-4244(JS) (ARL), 201 | WL 838914, at *3 (E.D.N.Y. Mar. 2, zlll)(same); Gray v. Bankers

TruSt Co. of Albany. NA., 82 A.D.2d 168,170-71,442 N.Y.S.2d 610, 611-12 (3d Dep't 1981)

(same). "'A judgment of foreclosure and sale entered against a defendant is final as to all

questions at issue between the parties, and concludes all matters of defense which were or might

have been litigated in the foreclosure action." Signapure Bank v. Epstein, 95 A.D.3d 7199,1200,

945 N.Y.S.2d.347,348 (zdDep't2012) (quoting Long Island Savs. Bank. FSB v. Mihalios, 269

A.D.2d 502,503, 704 N.Y.S.2d 483,484 (2d Dep't 2000)).

20. This Court already found that Plaintiff has standing and that the court has subject matter

jurisdiction in this action when it granted the Order of Reference and Judgment of Foreclosure

and Sale. At such time, all claims that could have or should have been raised in defense to

foreclosure became barred by res judicata. See Yeiqer. 535 F. Supp. 2d at 422; see also Citize{rs

Bank of Appleton City. Mo. v. CL.R. Brooklyn Realty Corp., 5 A.D.3d 528,528,772 N.Y.S.2d

870, 871 (2d Dep't 2004) (motion to vacate judgment of foreclosure and sale barred by res

judicata as claims therein could have or should have been raised in foreclosure action). The

Defendant did raise a standing defense in his answer, which this Court dismissed in granting the

Order of Reference. Defendant cannot, therefore, re-litigate the issue of standing now.

Additionally, the Court denied the Defendant's Order to Show Cause find that "the issue of

standing was of necessity decided against defendant, and constitutes the "Law of the Case" and

{6013782: }
woc f916
,
 that "the Court clearly has subject matter jurisdiction over the instant foreclosure action." A

copy ofthe Defendant's Answer is attached hereto as Exhibit E.

21. "The doctrine of the "law of the case" is a rule of practice, an articulation of sound policy

that, when an issue is once judicially determined, that should be the end of the matter as far as

Judges and courts of co-ordinate jurisdiction are concemed" Martin v. Cohoes, 37 N.Y.2d 162

(1975) (citing United States v United States Smelting Co., 339 U.S. 186, 198; Insurance Group

v Denver & R.G.W.R. Co. , 32g U.S. 607, 612; Messenger v Anderson, 225 lJ.S. 436, 444;

Telaro v Telaro, 25 NY2d 433,437-438; Note, Successive Appeals and the Law of the Case,62

HeRv L Rev 286.))

STANDING

22. Even though Defendant's motion must be denied because this Court already considered and

rejected Defendant's challenge to Plaintiffs standing and subject matter jurisdiction in this

instant action, Plaintiff has established standing in this matter. A plaintiff establishes its standing

and entitlement to relief in an action to foreclose a mortgage by producing the mortgage,the unpaid

note, evidence of default, and evidence demonstrating that the plaintiff is the holder or assignee of

the mortgage and the underlying note at the time it commences the foreclosure action (See MLCFC

2007-9 Mixed Astoria. LLC v. 36-02 35th Ave. Dev. , LLC, 116 A.D.3d 745, 983 N.Y.S.2d 604,

2014 N.Y. App. Div. LEXIS 2354,2014 NY Slip Op 2416,2014WL 1377773 (N.Y. App. Div. 2d

Dep't 2014); Homecomings Fin. v. Guldi, i08 A.D.3d 506,969 N.Y.S.2d470,2013 N.Y. App' Div.

LEXIS 4963,2013 NY Slip Op 5048,2013 WL 3335316 (l{.Y. App. Div. 2d Dep't 2013); Argent

Mtge. Co.. LLC v. Mentesana, 79 A.D.3d 1079,915 N.Y.S.2d 591,2010 N,Y. App. Div. LEXIS

9845, 2010 NY Slip Op 9874 (N.Y. App. Div. 2d Dep't 2010); Wells Fargo Bank Minn.. N.A. v

Mastrooaolo , 42 AD3d at 244). "Either a witten assignment of the underlying note or the physical

16013782:l woc #916

 delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the

obligation, and the mortgage passes with the debt as an inseparable incident" (]US-Bank-N.A. v.

Collymore, 68 A.D.3d 752, 890 N.Y.S.2d 578,2009 N.Y. App. Div. LEXIS 8839, 2009 NY Slip

Op 9019 G.l.Y. App. Div. 2d Dep't 2009); See Kondaur Capital Corp. )z McCary, 115 A.D.3d 649,

981 N.Y.S.2d 547,2014 N.Y. App. Div. LEXIS 1403,2014 NY Slip Op 1438, 2014 WL 840564

(t'{.Y. App. Div. 2d Dep't 2014);Aurora Loan Servs.. LLC v Taylor, 114 A.D.3 d627,980 N.Y.S.2d

475,2014 N.Y. App, Div. LEXIS 617,2A14 NY Slip Op 625 O{.Y. App. Div. 2d Dep't 2014).

23. Plaintiff also has standing as assignee of the endorsed Note and Mortgage by physical

delivery. See, Wells Fargo Bank. N.A. v. Arias,l2l A.D.3d973,995 N.Y.S.2d 118, 2014 N.Y.

App. Div. LEXIS 7113,2014 NY Slip Op 07148 (N.Y.App.Div. 2d Dep't2014) (Plaintiff

established standing by submitting an affrdavit attesting that affiant examined the records of the

servicer and that of Plaintiff and determined that the subject note was delivered to Plaintiff prior to

commencement of the action) (citation omitted). Aurora Loan Servs.. LLC v. Taylor, 114 A.D.3d

627,980N.Y.S.2d 475,2014N.Y. App. Div. LEXIS 6t7,2014NY Slip Op625 (N.Y. App. Div.

2d Dep't 2014) (plaintiff established standing as holder through "an affidavit submitted by the

plaintiff [that] established that it obtained physical possession of the original note.. . on May 20,

201A, four days before the action was commenced." The Court specifically notes that the

defendants "offered no evidence to contradict those factual averments and, therefore, failed to raise

a triable issue of fact with respect to [Aurora's] standing.") (citation omiued).

24. In the recent Court of Appeals decision rendered in Aurora Loan Servs., LLC v. Taylor,

2015 NY Slip Op 04872,the Court upheld the ruling of the Appellate Division in that the plaintiffs

Affrdavit demonstrated that the Plaintiff obtained physical possession of the original note prior to

commencement of this foreclosure action, and that such was legally sufficient to establish standing.

{6013782: i woc #916

 The Defendants had appealed the Supreme Court's Order granting Summary Judgment for the

Plaintiffand asserted that the Plaintiff lacked standing to commence. The Defendants argued that to

demonstrate possession of the note, the Plaintiff had to produce the original note for examination

and that Plaintiffs affidavit was not legally sufficient to prove standing. The Court found there was

no indication that such document production was ever requested and that Plaintiffs Affidavit was

sufficient proof of possession of the note prior to commencement as the affirming bank

representative attested to reviewing the records personally and the moving papers clearly show the

note's chain of ownership. The Court went on to state that even though a better practice would have

been for the Plaintiff to state how it come into possession of the note to clariff the situation

completely, that the court was correct in granting Summary Judgment for the Plaintiff.

25. Similarly here, the Plaintiff produced the mortgage, the unpaid blank endorsed note,

evidence of default, and evidence demonstrating that the plaintiff was the holder of the mortgage

and the underlying note at the commencement of this action by means of Affidavits attesting to the

examination of the business records relating to this loan and determined that Plaintiff was in

possession of the Note prior to commencement of this action. The Defendant has offered no

evidence to contradict those factual averments, has not shown another entity possesessed the note at

the time of commencement and has not shown another entity has sought enforcement of the note at

isssue.

26. Furthermore, the Mortgage (security instrument) was recorded on }y'ray 17, 1994 in the

Office of the Clerk of the County of Monroe in Book 12219 at Page 538. Said mortgage was duly

assigned by assignment dated July 13, 1998 and recorded on October 6, 1998 in the Office of the

Clerk of the County of Monroe in Book 1257 at Page 99. Said mortgage was further assigned to

Wells Fargo Bantq N.A. by assignment dated January 18, 2007 , and recorded on February 9, 2007

{6013782: } woc #916

 in the Office of the Clerk of the County of Monroe in Book 156l atPage 336. Said mortgage was

then assigned by assignment dated July 6,2071 and recorded on luly 12,2011 in the Office of the

Clerk of the County of Monroe in Book 1648 atPage 108.

2T.Plaintiff respectfully requests that the Defendant's Order to Show Cause be denied in all respects.

Dated: March 28,2018

Rochester, New York

Attorneysfor Plainliff
Woods Oviatt Gilman LLP
700 Crossroads Building
2 State Street
Rochester, NY 14614
Tel.: (585)987.2800

{6013782: } wo6 #916

t -r-
I

I IN NEW YORK SUPREME COURT COUNry OF MONROE

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3 STATE OF NEW YORK
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WELLS FARGO BANK N.A
7 Response to Opposition to
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Motion brought on NEW EVIDENCE
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1'1
V #4419/2009
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14 KEVIN PATRICK BRADY
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1B 'Although the Rule is silent about collateral attack as a method of challenging the validity
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20 of a judgment, there can be little doubt that if the judgment is void . . . a collateral attack
21 upon void judlments may be made in any proceeding in any court where the vatidity of the
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judgment comes in issue. 7 Moore's Federal Practice para. 60.25[3], at 24A ed ed. '1983];
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24 see Lubben v. Selective Serv. Sys. Local Bd, No. , 453 F .2d 645, 649 (1st Cir. 1972);
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Graciette v. Star Guidance, lnc., 66 F.R.D. 424,426 (S.D.N.Y. 1975).
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28 A judgment is void if the court acted "in a rnanner inonsistent v{i& due proqss of law."
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30 Beller & Keller v. Tyler, 120 F.3d 21,23 (2d Cir. 1997
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Debndant asserts the above proeedings are trerefore VOID.
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I also deny that opposing counselor is fully familiar with facts, circumstances, and
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37 proceedings that came before he replaced Steven Baum as attorney of record. I am one of
38 Baums' countless victirns of 'systematic fl aws' in commencing foreclosures.
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41 ln 2010, New York Chief Judge Jonathan Lippman has said he was convinced the courts
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were seeing "syslemic structuralfuilings" in the foreclosure process, and that iudges and
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44 lawyers have a responsibility not to close their eves to papenrvork errors. That is why this
45 case still lingers.
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48 To deny that this case was corrupted by such flaws is to deny the validity of the legislation
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that followed
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3 CONTRARY TO OPPOSITION, THE INSTANT MOTION IS NOT BARRED BY JUDICIAL
4 POLICY OR DOCTRINE.
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This motion comes on New Evidence confirming the merits of defendants threshold
objections prohibiting summary judgment.
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"Statements of counsel in brief or in argument are not sufficient for motion to dismiss or
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12 for summary judgment." Trinsey v. Pagliaro, D.C. Pa.'l 964, 229 F. Supp. 647.
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14 "Manifestly, [such statements] cannot be properly considered in disposition of [a] case."
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16 U.S. v. Lovasco t1977)l 431 U.S. 783, 97 S. CL 2A44,52 L. Ed. 2d752,-

1B
19 "The trial court ruling must stand UNLESS its ruling was clearly in error or there has been
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important change in circumstances. United States v. Estrada-Lucas, 651 F.2d 1261, 1263
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(9th Cir.1980); Smith v. United States, D.C.App., 406 A.zd 1262 {1979).
??

25 Defendant further objects to statements beginning at paragraph 6. The substance of the

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April 2013 motion was never actually adjudicated and was otherwise incomplete
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7. The issue of standing could not have been decided against defendant, the basis for
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31 such decision has never been disclosed on the record. This defect has remained in
32 controversy for implying that pro €e defendant was not entitled to know how this purported
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plaintiff proved a prima facie case.
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ln response to this couft's arbitrary dismissal defendant asserted the due process principle
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38 best expressed by the Fourth Dept. in20A2 [see exhibits]
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"Due procass c-onsiderations mandate findings of fact be made in a manner wherein are
42 assured that the decision is based on evidence in the record, uninfluenced by extralegal
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considerations and so both an intelligent by a party aggrieved by the determination and an
45 adequate judicial review are possible. Pergetto v Erie City water l20o2l Matter of Goohbya v
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Walsh-Tozer,292 AD2d 284, Simpson v Wolansky, 38 NY2d 391, 3961
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49 This principle also exemplifies the unanimous insufficient findings of this court.
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 1

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3 7a. The commencing complaint admits plaintiffs lack of ability to produce the Note.
4 7b. Plaintiff subsequently admits inability to confirm proper execution of assignments
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7c Defendant challenged standing at the outset. Why did this Court ignore the
7 challenge?
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I 8. My objection to Plaintiffs real agenda for its ex party motion in April 2014 has been
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enunciated ad nauseum, but have never been adjudicated?
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12 9. I have also denied receiving Notice for this hearing ad nauseum

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14 10 The Order is VOID for due process violation and excess of jurisdiction.
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16 11. Agreed
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12 no comment
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2A
13. Appeal of this order was not denied on the merits.
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14. This court's Order confirmed that defendant raised constitutional issues but the court
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24 failed to identify them or adjudicate them.
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26 16 no comment
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28 17. Because the pleadings were facially meritorious, permission WAS granted. exhibits
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30 19 no comment
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32 20. Every assertion that this court has previously adjudicated the issue of standing is false,
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opportunistic and known to be so. This Court was prohibited from summary judgment
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21 Sound policy says'wheneyer an iesue is judicially determined that should be the end.
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37 The operative words here are iudiciallv determined. This issue was determined by FIAT.
3B
39 The opposing arguments are irrelevant to the motion sub judice. The decision of the Fourth
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Dept. confirms that the issue of standing was NOT correctly adjudicated.
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25 Counsel assefiion that "Plaintiff produced the'unpaid, blank endorsed note' is completely
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44 erroneous and cannot be excused as mere zealous defense. lt defies public policy as does
45 this Courts enabling Plaintiffs eonsiructive frauel.
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47 26. Plaintiff admits that the 'Mortgage' is actually the security instrument [not necessarily the
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49 note] confirms their agenda was in fact as 'debt collector, but fails to remember his earlier
50 disclosure admitting that'Plaintiff' could not confirm the executions
 1

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Without confirmation, this court could not ratify defective documents at it did in its order of
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5 April 23, ZAU.
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7 Pleadings that allege findings that were never actually made must be stricken from this
8 record. There was NO TRIAL: nor was admissible evidence submitted. This is precisely why
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10 this courts findings' have been consistently insufficient.
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12 Plaintiff has failed to deny defendants allegations of constitutes admission.
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14 Al No denial that WFHM refused to accept payments offered in January 2009
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16 Bl No denial that 'cashless bid' at auction exceeds jurisdiction.
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18 Cl No denial that assignment of its bid to HSBC is void.
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2A Dl no denial that reversal of transfer of deed is warranted or defendant is entitled to
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immediate repossession.
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El no denial of actionable damages pursuant to New York Fair Collection laws.
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This court should now confirm the requirements for'standing', were NOT met in this case.
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29 THE INSTANT MOTION ]S NOT BARRED BY JUDICIAL POLICY OR DOCTRINE.
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' Reconsideration of an issue may be appropriate in certain circumstances, including when
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32 the record contains new evidence...This exception to the law of the case doctrine makes
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sense because when the record contains new evidence, the question has not really been
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35 deeided earlier and is posed for the first time...But this is only if the new evidence differs
36 materially from the evidence af record when the issue was first decided and if it provides less
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38 support for that decision. Speeney v. Powers, et al., United States Court of Appeals, Third
39 Circuit, March 11, 2010
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41 This courts arbitrary decisions are a gross violation of my rights. They could preclude me from
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recovering damages for these trespasses.
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45 I thus move for permission to add HSBC BANK, USA, N.A to this action for their co liabitity
46 for damages due to its wrongful trespass and eviction from my horne in 2016.
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I hercby depose under penally of law that evetything alleged herein is to the best of my knowledge tue and
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7 exceptformalters alleged on information and belief and I believe those to be true.
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ffit Ru*
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\ Kevin Patrick Brad
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