Mortgage Buyer Lacks Personal
Knowledge of Default; Judge Blocks Foreclosure Bid
Brendan Pierson
New York Law Journal
The buyer of a mortgage that is
already in default cannot foreclose on the mortgage because it does not have
personal knowledge of the default, a state judge has ruled, though the buyer
may be able to remedy that if it can get an affidavit from the mortgage's
previous owner.
In a Feb. 14 order in FTBK
Investor II v. Joshua Management, 810164/11, Manhattan Supreme Court
Justice Paul Wooten also rejected several other arguments put forward by the
mortgage borrower attempting to avoid default.
The defendant in the case, Joshua
Management, originally took out a mortgage from Washington Mutual to buy a
property at 2866 Frederick Douglass Blvd. in Harlem in 2005. In 2008,
Washington Mutual was seized by the federal Office of Thrift Supervision and
then put in control of the Federal Deposit Insurance Corp. It was subsequently
sold to JPMorgan Chase & Co.
In May 2011, Chase began a
foreclosure action against Joshua, alleging it had stopped making mortgage
payments in December 2010. In fall 2011, the mortgage was
transferred to a company called NY Brooklyn Investor and then to FTBK Investor
II. FTBK took the place of Chase in the foreclosure action and moved for
summary judgment.
Joshua opposed, arguing that FTBK
had not shown that the mortgage was ever transferred from Washington Mutual to
Chase. Joshua acknowledged that FTBK is in physical possession of the mortgage
document, but said that it had to provide a record that the document was delivered
from Washington Mutual to Chase.
0.
Furthermore, Joshua argued that
because the alleged default happened before FTBK acquired the mortgage, FTBK
could not foreclose on it because it lacked personal knowledge of the default.
Wooten rejected Joshua's first
argument, finding that FTBK does not have to show that the mortgage was
individually transferred from Washington Mutual to Chase because federal law
gives the Office of Thrift Supervision and the FDIC the power to transfer
Washington Mutual's assets without individual assignments….
*
* *
However, he did accept Joshua's
second argument, that FTBK did not have personal knowledge of the default….
______________________________________
FTBK
Investor Ii LLC v. Joshua Management LLC, 810164/11
Supreme
Court, New York County, Part 7
810164/11
New
York Law Journal
03-07-2013
Cite
as: FTBK Investor Ii LLC v. Joshua Management LLC, 810164/11, NYLJ
1202590547576, at *1 (Sup., NY, Decided February 2013)
Justice
Paul Wooten
Decided:
February 2013
Additional
Defendants
New
York State Department of Taxation and Finance, New York City Department of
Finance, New York City Environmental Control Board, Castle Oil Corp., New York
City Department of Housing Preservation and Development, and "John Doe No.
I" to "John Doe No. Xxx," Inclusive, the Last Thirty Names Being
Fictitious and Unknown to Plaintiff, the Persons or Parties Intended Being the
Tenants, Occupants, Persons or Corporations, If, any, Having or Claiming an
Interest In or Lien Upon the Premises Described In the Complaint
*1
Motion
sequences 003 and 004 are hereby consolidated for purposes of disposition. In
this action, FTBK Investor II, LLC, as Trustee for N.Y. Brooklyn Investor II
Trust 1 (plaintiff) seeks to foreclose upon a mortgage secured by property
located at 2866 Frederick Douglas Boulevard, New York, New York and owned by
defendant Joshua Management, LLC (Joshua). The mortgage agreement and an
Amended and Restated Promissory Note (Note) in the amount of $2,812,500.00 were
originally executed by Joshua in favor of Washington Mutual Bank, F.A.
*2
(WaMu).
In motion sequence 003, Plaintiff moves for an order granting it summary
judgment on its complaint, striking Joshua's answer, appointing a referee to
compute the sums due and owing to plaintiff, entering a default judgment
against non-appearing defendants New York State Department of Taxation and
Finance, New York City Environmental Control Board and New York City Department
of Housing Preservation and Development and dismissing the complaint without
prejudice as against de
fendants
John DOE No.1 to John Doe No. XXX. In motion sequence 004, plaintiff moves, by
Order to Show Cause (OSC), for the appointment of a temporary receiver. Joshua opposes
these motions on the grounds that the plaintiff lacks standing to foreclose
upon the mortgage and has failed to adequately demonstrate that Joshua is in
default with respect to the Note.
BACKGROUND
On
August 12, 2005, Joshua signed a promissory note and mortgage agreement in
favor of WaMu in order to obtain a loan in the amount of $2,812,500.00. The
loan was secured by property located at 2866 Frederick Douglass Boulevard, New
York, New York. The mortgage was recorded with the Office of the City Register
on August 26, 2005 (see Affirmation of Jerold C. Feuerstein, Esq. [Feuerstein
Aff.], exhibits A, B).
On
September 25, 2008, the United States Office of Thrift Supervision (OTS) seized
WaMu and placed it into the receivership of the Federal Deposit Insurance
Corporation (FDIC). That same day, the FDIC transferred and/or sold most of
WaMu's assets, including its deposit liabilities and its secured debts and
loans to JPMorgan Chase & Co. (Chase). Pursuant to 12 USC
§1821(d)(2)(G)(i)(II), the FDIC, as receiver of a failed bank, is authorized to
"transfer any asset or liability of the institution in default…without any
approval, assignment, or consent with respect to such transfer." WaMu's
loans were transferred to Chase through a Purchase of Assumption Agreement (the
PAA) executed by FDIC and Chase on September 25, 2008 (id., exhibit C). As
proof that the Note and mortgage executed by Joshua was one of the loans
transferred to Chase, the plaintiff relies on an affidavit signed by Robert C.
Schoppe (Schoppe
*3
Affidavit),
an authorized representative of the FDIC. The Schoppe Affidavit claims that
"Chase acquired certain of the assets, including all loans and all loan
commitments, of Washington Mutual." However neither the Schoppe Affidavit
nor the PAA mention or refer to any specific loans.
On
August 19, 2011, the subject mortgage was assigned and the Note endorsed over
to N.Y. Brooklyn Investor II, LLC, a New York limited liability company (NY
Brooklyn Investor). On September 12, 2011, NY Brooklyn Investor assigned the
mortgage and Note over to the plaintiff (id., exhibits D, E). Both of these
assignments were registered and recorded on October 3, 2011 (id.).
Pursuant
to the terms of the Promissary Note, Joshua was obligated to make monthly
payments of $15,600.48, starting on October 1, 2005. Plaintiff claims that
Joshua is in default because it failed to tender any monthly payments on the
Note on or after December 1, 2010. The mortgage agreement provides that the
mortgagors are in default when they fail to make any regular payment under the
Note "so that it was received by the [lender] within 15 days after the
date when due" (id., exhibit B). Section 5.3 of the Mortgage, provides in
pertinent part, "Upon the occurrence of any Event of Default, all sums
secured hereby shall become immediately due and payable, without notice or
demand…and Lender may…(b) Foreclose this Security Instrument as provided in
Section 7 or otherwise realize upon the Property…" (id.). By letter dated
April 22, 2011, counsel for Chase informed Joshua that Chase was exercising its
option to declare the entire principal amount of the loan in default, together
with all accrued and unpaid interest and to commence a foreclosure proceeding
against Joshua (id., exhibit G).
Prior
to its assigning the mortgage and Note to NY Brooklyn Investor, Chase commenced
this action to foreclose upon the property via a summons and complaint dated
May 20, 2011. In addition to Joshua, Chase named various other parties with an
interest in the property as well as defendants John Doe No.1 through John Does
No. XXX, as potential tenants of or unknown creditors or lien holders on the
property. On July 12, 2011, Joshua
*4
interposed
an answer which, inter alia, raised seven affirmative defenses: (1) failure to
state a cause of action; (2) unclean hands; (3) denial of default and,
alternatively that default was "wrongfully induced by the Plaintiff; (4)
denial of any non-monetary default; (5) failure to provide notice and a cure
period; (6) reservation of the right to amend the answer to include new
affirmative defenses; and (7) denial of waiver of affirmative defenses. On
November 16, 2011, this Court signed an order amending the caption of this
action to reflect the substitution of FTBK Investor II, LLC, as trustee for NY
Brooklyn Investor II Trust I as the plaintiff in the action.
In
motion sequence 003, plaintiff moves for an order granting summary judgment,
striking Joshua's answer, and appointing a referee to compute the sums due and
owing to Plaintiff. Joshua opposes this relief. Plaintiff also seeks an order
dismissing the John Doe defendants without prejudice and entering a default
judgment against defendants New York State Department of Taxation and Finance,
New York City Environmental Control Board and New York City Department of
Housing Preservation and Development, all of whom have failed to answer the
complaint or otherwise appear in this action. Joshua does not offer any
opposition to the granting of this relief. In motion sequence 004, Plaintiff
moves, by OSC for the appointment of a temporary receiver for the property.
Joshua opposes.
CONTENTIONS
OF THE PARTIES
Plaintiff
asserts that it is the valid holder of the Note and mortgage, signed by Joshua,
that Joshua has failed to make the required payments pursuant to the Note and
is therefore in default. As such, plaintiff proffers that it has established a
prima facie case that it is entitled to foreclose on the property. Plaintiff
also maintains that Joshua's answer does not raise any meritorious defenses
that would negate the plaintiff's prima facie showing. In addition to producing
the indorsed Note, the mortgage agreement, and the two mortgage assignments,
plaintiff has also submitted an affidavit from Brian Shatz (Shatz), the
managing member of the plaintiff trustee. Shatz states that he has personal
knowledge of the existence of Joshua's default and the amount of the principal
balance due "based upon Plaintiff's books and records"
*5
(Feuerstein
Aff., Shatz Affid., ¶21). Shatz states in his affidavit that he reviewed files
maintained in the ordinary course of business by plaintiff and Chase that
relate to the loan that is the subject of this action.
Joshua
contends that summary judgment should be denied because plaintiff has failed to
provide any proof that the mortgage and note were transferred from the FDIC to
Chase, plaintiff's predecessor-in-interest, and therefore plaintiff has failed
to sufficiently demonstrate that it has standing to foreclose on the mortgage.
Joshua further claims that plaintiff lacks standing because there is no
endorsement or allonge on the Note evidencing its valid assignment to Chase.
Furthermore, Joshua claims that Shatz's affidavit is insufficient proof of
Joshua's default on the Note because he has not demonstrated sufficient
personal knowledge of the circumstances surrounding Joshua's alleged default.
In
reply, plaintiff claims that a formal assignment of the mortgage and note to
Chase was not necessary to effectuate a transfer. Plaintiff also submits a
Supplemental Affidavit from Shatz. In his Supplemental Affidavit, Shatz claims
that he reviewed the files concerning the subject loan before plaintiff
acquired the loan from NY Brooklyn Investor, including all loan related files
such as the underwriting file, loan documents, payment histories, default and
acceleration letters and other correspondences. Shatz indicates in the
Supplemental Affidavit, that the documents he reviewed were presented to him as
"business records of the predecessors in interest to NY Brooklyn (and
Plaintiff for that matter) and they appeared to [him] to be consistent with
similar business records customarily held in the mortgage lending
industry" (Feuerstein Reply Aff., Shatz Sup. Affid. at p. 3).
With
regards to the appointment of a temporary receiver, plaintiff relies on section
5.3 of the mortgage agreement which states that in the event of a default"
Mortgagee may…[h]ave a receiver appointed as a matter of right on an ex parte
basis without notice to Mortgagor and without regard to the sufficiency of the
Property or any other security for the indebtedness secured hereby and, without
the necessity of posting a bond or security, such receiver shall take
*6
possession
and control of the Property and shall collect and receive all of the rents,
issues and profits thereof" (Feuerstein Aff., exhibit B). Plaintiff
contends that this provision, read in conjunction with Real Property §254(10),
entitles it to have a receiver appointed for the Property regardless of the
sufficiency of the current property management. Moreover, plaintiff asserts
that Joshua has failed to properly manage the subject property. Joshua again
contends that plaintiff provides insufficient proof that it is the valid holder
of the note and mortgage. Joshua also disputes plaintiff's contentions that it
is not managing the property effectively, and argues that the appointment of a
receiver could disrupt its management and is otherwise not necessary to protect
the plaintiff's collateral.
STANDARD
Summary
judgment is a drastic remedy that should be granted only if no triable issues
of fact exist and the movant is entitled to judgment as a matter of law (see
Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Andre v. Pomeroy, 35 NY2d
361, 364 [1974]). The party moving for summary judgment must make a prima facie
showing of entitlement to judgment as a matter of law, tendering sufficient
evidence in admissible form demonstrating the absence of material issues of
fact (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; CPLR
3212[b]). A failure to make such a showing requires denial of the motion,
regardless of the sufficiency of the opposing papers (see Smalls v. AJI Indus.
Inc., 10 NY3d 733, 735 [2008]). Once a prima facie showing has been made,
however, "the burden shifts to the nonmoving party to produce evidentiary
proof in admissible form sufficient to establish the existence of material
issues of fact that require a trial for resolution" (Giuffrida v. Citibank
Corp., 100 NY2d 72, 81 [2003]; see also Zuckerman v. City of New York, 49 NY2d
557, 562 [1980]; CPLR 3212[b]).
When
deciding a summary judgment motion, the Court's role is solely to determine if
any triable issues exist, not to determine the merits of any such issues (see
Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The Court
views the evidence in the light most favorable to the nonmoving party, and
gives the nonmoving party the benefit of all
*7
reasonable
inferences that can be drawn from the evidence (see Negri v. Stop & Shop,
Inc., 65 NY2d 625, 626 [1985]). If there is any doubt as to the existence of a
triable issue, summary judgment should be denied (see Rotuba Extruders, Inc. v.
Ceppos, 46 NY2d 223, 231 [1978]).
In
moving for summary judgment in a mortgage foreclosure action, plaintiff
establishes a prima facie right to foreclose by producing the mortgage, the
assignment, if any, the unpaid note and evidence of default (see CitiFinancial
Co. (DE) v. McKinney, 27 AD3d 224, 226 [1st Dept 2006]; LPP Mortgage, Ltd v.
Card Corp., 17 AD3d 103, 104 [1st Dept 2005]; Hypo Holdings, Inc. v. Chalasani,
280 AD2d 386 [1st Dept 2001]). Once the plaintiff satisfies that burden, it is
incumbent on the party opposing foreclosure to come forward with evidence
sufficient to raise a triable issue of fact as to a bona fide defense such as
waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on
the part of the plaintiff (see CitiFinancial, 27 AD3d at 226; Mahopac Nat. Bank
v. Baisely, 244 AD2d 466, 467 [2nd Dept 1997]). Where the defendant has put
standing into issue, the plaintiff can demonstrate its standing and entitlement
to relief by demonstrating that it is both the holder or assignee of the
subject mortgage and the holder or assignee of the underlying note at the time
the action is commenced (see U.S. Bank, N.A. v. Collymore, 68 AD3d 752, 753
[2nd Dept 2009]; see also Bank of New York v. Silverberg, 86 AD3d 274, 279 [2nd
Dept 2011]; Countrywide Home Loans, Inc. v. Gress, 68 Ad3d 709, 709 [2nd Dept
2009]).
DISCUSSION
Usually,
an assignment of a mortgage and underlying note can be effectuated either
through a written assignment of the underlying note or the physical delivery of
the note prior to the commencement of the foreclosure action (Collymore, 68
AD3d at 754). Joshua argues that the plaintiff cannot establish that it has
standing because it cannot demonstrate that the mortgage and underlying note
was validly assigned to Chase, plaintiff's predecessor-in-interest, prior to
the commencement of this action. Plaintiff has provided a written assignment of
both the mortgage and the underlying Note from Chase to NY Brooklyn Investor
and from NY
*8
Brooklyn
Investor to plaintiff. However, plaintiff does not have written proof of the
assignment to Chase from either WaMu or the FDIC, as receiver. The only proof
that plaintiff has offered regarding the transfer of the subject loan from WaMu
to the FDIC and/or Chase is the affidavit by Schoppe, the FDIC representative.
As stated above, the Schoppe affidavit does not refer to any specific loans or
mortgages but merely asserts that all of WaMu's loans were transferred to Chase
after WaMu's seizure by the FDIC.
Joshua
acknowledges that the plaintiff is in physical possession of the note and
mortgage, but argues that the motion must be denied because the plaintiff has
not provided any admissible evidence such as an affidavit or documents which
would demonstrate that the loan documents were delivered to Chase prior to the
commencement of this action. Plaintiff may have demonstrated that it was
validly assigned the loan from Chase and NY Brooklyn Investor, but Joshua
insists that plaintiff must also demonstrate that Chase was validly assigned
the note and mortgage from WaMu and/or the FDIC as receiver prior to the
commencement of this action.
Based
on the above facts, Joshua argues that the evidence proffered by the plaintiff
to demonstrate its standing is insufficient. The Court disagrees. Plaintiff
correctly points out that the FDIC clearly had the authority to transfer the
loans in bulk to Chase pursuant to 12 USC §1821 (d)(2)(G)(i)(II), and that an
individual negotiation, i.e. assignment, of each loan was not required.
Pursuant to 12 USC §1821 (d)(2)(G)(i)(II), the FDIC, as receiver of a failed
bank, is authorized to "transfer any asset or liability of the institution
in default…without any approval, assignment, or consent with respect to such
transfer." According to the express terms of the statute, a valid transfer
of the assets of a failed bank from the FDIC occurs even without a formal
assignment instrument. As evidenced by the terms of the PAA, Chase acquired all
assets of WaMu, with certain exceptions not applicable to this action.
Specifically, section 3.1 of the PAA provides that, with the exception of the
assets not applicable to this action, "[Chase] hereby purchases from the
receiver [FDIC], and the Receiver hereby sells, assigns, transfers,
*9
conveys,
and delivers to the Assuming Institution, all right, title, and interest of the
Receiver in and to all of the assets…of the Failed Bank [WaMu]" (Reply
papers).
Citing
to JP Morgan Chase Bank, N.A. v. 334 Marcus Garvey Boulevard Corp. (Sup Ct,
Kings County, Dec. 5, 2011, Rosenberg, J., index No. 26152/09) and JP Morgan
Chase Bank, N.A. v. 1770 Realty Corp. (Sup Ct, Kings County, Jan. 29, 2010,
Gerges, J., index No.7655/09), plaintiff argues that it can therefore prove
Chase's prior ownership of notes and mortgages obtained from WaMu without
having to show that the loan documents were individually negotiated and
assigned. The Court agrees with plaintiff. There is sufficient documentation to
establish that OTS closed WaMu on September 25, 2008 and appointed the FDIC as
WaMu's receiver. That same day, the FDIC transferred the bulk of WaMu's assets
to Chase pursuant to the PAA. Joshua does not challenge the legality of the
transfer or the PAA itself and indeed numerous courts have accepted these
transactions as legitimate conveyances of WaMu assets to Chase (see 290 at 71
v. JP Morgan Chase Bank, 2009 WL 3784347, Case No A-09-CA=576-SS[WD Texas 2009]
[finding that PAA validly transferred lease from WaMu to Chase]; Grealish v.
WaMu, FA, 2009 WL 2170044, Case No 2:08-CV-763 TS [D Utah 2009]; Hilton v.
Washington Mut. Bank, 2009 WL 3485953, No C09-1191 SI [ND Cal 2009]).
Accordingly, Joshua's claim that the Note had to have been individually
negotiated and physically endorsed to Chase through an allonge is legally incorrect.
Joshua
argues that even if plaintiff is correct that Chase received a valid transfer
of WaMu's assets from the FDIC, this does not rule out the possibility that the
mortgage could have been transferred to another lender prior to WaMu's seizure
by the FDIC. Thus Joshua argues that plaintiff must provide proof of Chase's
prior ownership of the Note and mortgage beyond the PAA and/or the Schoppe
affidavit. There is some caselaw supporting Joshua's position, but the Court
does not find it persuasive (see FTBK Investor II LLC v. Mercy Holding LLC, 36
Misc3d 1219(A) *5 [Sup Ct. Kings County 2012]). In making this argument based
on its analysis of state law, Joshua overlooks the broad powers granted to OTS
which enjoys "plenary
and exclusive authority…to regulate all aspects of the operations of Federal
savings associations" and its authority "occupies the entire field of
lending regulation for federal savings associations" (see 12 CFR §§545.2,
560.2[a]). To this end, OTS Regulation 560.2(b) expressly preempts state
regulation of federal thrift activities dealing with lending by federal savings
associations including, inter alia, terms of credit, loan related fees,
disclosure or advertising and processing, origination or servicing of loans
(see 12 CFR §560.2(b); see also Monroig v. Washington Mut. Bank, FA, 19 AD3d
563, 564 [2nd Dept 2005]). There can be no dispute that 12 USC §1821
(d)(2)(G)(i)(II), as it pertains to the broad authority of the OTS and FDIC to
transfer mortgages without assignment, pertains to lending, and thus any
contrary New York state law or judicial decision would be preempted by federal
law (see JP Morgan Chase Bank, N.A. v. 1770 Realty Corp., Sup Ct, Kings County,
Jan. 29, 2010, Gerges, J., index No.7655/09, slip op at 16-18; JP Morgan Chase
Bank, N.A. v. 334 Marcus Garvey Boulevard Corp., Sup Ct, Kings County, Dec. 5,
2011, Rosenberg, J., index No. 26152/09, slip op at 7-8). Thus, the Court finds
that Joshua's contention that the transfer of the mortgage and Note to Chase
must be negotiated and/or recorded individually to demonstrate proof of
assignment is without merit.
Furthermore,
as plaintiff points out, while Joshua argues that the plaintiff has failed to
prove valid ownership of the subject loan documents, Joshua fails to give any
rational explanation as to how Chase and then the plaintiff obtained possession
of the loan documents if in fact WaMu transferred the loan prior to its
collapse as Joshua suggests. Faced with plaintiff's strong prima facie showing
as to ownership, Joshua cannot point to any credible evidence which suggests
that the underlying note was not assigned to Chase from the FDIC and
thereafter, from Chase to NY Brooklyn Investor, and then to plaintiff.
However,
Joshua also claims that plaintiff has failed to provide sufficient documentary
evidence of Joshua's alleged default on payment of the note, arguing that the
Shatz affidavit is insufficient to demonstrate default because Shatz had no
involvement with the loan and mortgage at the time of the purported default,
and thus lacks sufficient personal knowledge of
*11
the
circumstances concerning Joshua's alleged default. In his original affidavit,
Shatz says only that he reviewed the files of the plaintiff and Chase, as
plaintiff's predecessor-in-interest and knows that the allegations in the
complaint concerning Joshua's default are true based on his review of the
plaintiff's books and records (see Shatz Affidavit). As a member of the
plaintiff assignee, Shatz only reviewed the loan documents created by Chase
long after the alleged default took place and has no personal knowledge of the
circumstances surrounding the default and or the acceleration of the mortgage
by Chase. Furthermore Shatz can not represent that the records that he reviewed
were kept by Chase in the ordinary course of business and his affidavit does
not even specify or attach copies of the documents upon which he relies (see
FBTK Investor II, 2012 WL 3064864 at *5). Even if the documents were attached,
they would not be admissible as business records of Chase without an affidavit
of a Chase employee indicating that such records were kept in the regular
course of Chase's business (see CPLR 4518[a]; Lodato v. Greyhawk N.Am., LLC, 39
AD3d 494, 495 [2nd Dept 2007]). Moreover, Shatz lacks personal knowledge of the
facts of the subject mortgage and note prior to its transfer to NY Brooklyn
Investor. While the supplemental affidavit of Shatz attempts to cure some of
the deficiencies, it is still inadequate and a party can not be permitted to
make out his prima facie case on reply (see Cotter v. Brookhaven Mem. Hosp.
Med. Ct., Inc., 97 AD3d 524 [2d Dept 2012]; Hawthorne v. City of New York, 44
AD3d 544 [1st Dept 2007]). Therefore, plaintiff cannot meet its burden to
demonstrate that Joshua defaulted on the note, and accordingly its motion for
summary judgment should be denied without prejudice with leave to renew.
Plaintiff's motion seeking an order dismissing the John Doe defendants without
prejudice and entering a default judgment against defendants New York State
Department of Taxation and Finance, New York City Environmental Control Board
and New York City Department of Housing Preservation and Development is granted
without opposition.
In
motion sequence 004, plaintiff moves for the appointment of a temporary
receiver pursuant to section 5.3(a) of the mortgage agreement and Real Property
Law 254(10). Since
*12
the
language in the mortgage agreement allowing for the appointment of a receiver
without regard to the sufficiency of the property is contingent upon proof of
default, and plaintiff has not yet demonstrated that Joshua defaulted on the
mortgage, the application for appointment of a temporary receiver is also
denied without prejudice with leave to renew.
CONCLUSION
Accordingly,
it is
ORDERED
that the portions of plaintiff's motion in Motion Sequence 003 seeking summary
judgment on its complaint, striking defendant Joshua's answer, and seeking the
appoint a referee to compute sums due and owing to plaintiff are denied without
prejudice with leave to renew; and it is further,
ORDERED
that the portion of plaintiff's motion in Motion sequence 003 seeking to
dismiss the complaint without prejudice as against defendants John Doe No.1 to
John Doe No. XXX is granted without opposition; and it is further,
ORDERED
that the portion of plaintiff's motion in Motion Sequence 003 seeking a default
judgment as against defendants New York State Department of Taxation and
Finance, New York City Environmental Control Board and New York City Department
of Housing Preservation and Development is granted without opposition; and it
is further,
ORDERED
that Motion Sequence 004 is denied in its entirety without prejudice with leave
to renew; and it is further,
ORDERED
that counsel for plaintiff is directed to serve a copy of this Order with
Notice of Entry upon all parties and upon the Clerk of the Court who is
directed to enter judgment accordingly; and it is further,
ORDERED
that the parties are directed to appear for a Status Conference on March 13,
2013 at 11:00 a.m., at 60 Centre Street, Room 341, Part 7.
