Nassau County Clerks Index 14370/2008

TO BE ARGUED BY: Steven Alexander Biolsi TIME REQUESTED: 15 Minutes

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT
U.S. Bank, National Association, successor-in-interest to Wachovia Bank, N.A. as indentured Trustee of MLMI 2005-A9, PLAINTIFF-RESPONDENT,
AGAINST

APPELLATE DIVISION DOCKET 2010-09895

Mohamed Y. Sharif, DEFENDANT-APPELLANT,

AND

Nazimah Sharif, Mortgage Electronic Registration Systems, Inc. as Nominee for Quicken Loans, Inc., John Doe #1 through Joe Doe #10, the last ten names being fictitious and unknown to the Plaintiff, the person or parties intended being the person or parties, if any, having or claiming an interest in or lien upon the mortgage premises described in the complaint, DEFENDANTS.

APPELLANTS BRIEF
For Defendant-Appellant Mohamed Y. Sharif Shapiro, DiCaro, & Barak, LLP ATTORNEYS FOR PLAINTIFF-RESPONDENT 250 Mile Crossing Boulevard, Suite One Rochester, NY 14624 (585) 247-9000 Steven Alexander Biolsi ATTORNEY FOR DEFENDANT-APPELLANT 7101 Austin Street, Suite 201B Forest Hills, New York, 11375 (718) 263-2624

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT ---------------------------------------------------------------------X U.S. Bank, National Association, successor-ininterest to Wachovia Bank, N.A. as indentured Trustee of MLMI 2005-A9,

Docket 2010-09895

Plaintiff-Respondent, - - against - Mohamed Y. Sharif, Defendant-Appellant,

STATEMENT PURSUANT TO CPLR 5531

Nassau County Supreme Court Index 14370/08

Nazimah Sharif, Mortgage Electronic Registration Systems, Inc. as Nominee for Quicken Loans, Inc., John Doe #1 through Joe Doe #10, the last ten names being fictitious and unknown to the Plaintiff, the person or parties intended being the person or parties, if any, having or claiming an interest in or lien upon the mortgage premises described in the complaint, Defendants. ---------------------------------------------------------------------X

Defendant-Appellant Mohamed Y. Sharif, by his attorney, Steven A. Biolsi, pursuant to Section 5531 of the Civil Practice Law and Rules, states as follows: 1. The index number of this case in the Court below was 14370/2008. 2. The full names of the original parties are as stated in the caption. There has been no change in the names of the parties. 3. This action was commenced in the Supreme Court, Nassau County. 4. This action was commenced with the purchase of an index number and the filing of a Summons, Complaint and Notice of Pendency on or about February 4, 2008. Defendant-Appellant, with Defendant Nazimah Sharif, interposed a Verified

Answer on or about August 25, 2008. No other defendant answered the Complaint. There was no reply to the answer. 5. This is an action sounding in a foreclosure of a residential mortgage. 6. This appeal is from an order of the Supreme Court, Nassau County (Hon. Thomas A. Adams, J.S.C.) dated August 17, 2010, entered in the office of the Nassau County Clerk on August 20, 2010, and served by first class mail with Notice of Entry on September 20, 2010, which denied Defendant/Appellants motion to amend his answer and granted Plaintiff/Respondents motion for summary judgment. 7. This appeal is being taken from an order to which there are no minutes. This appeal is being perfected with the use of a fully reproduced record on appeal.

Dated: Queens, New York March 14, 2011

__________________________ Steven A Biolsi

TABLE

OF

CONTENTS Page

TABLE OF AUTHORITIES..

ii

PRELIMINARY STATEMENT............

STATEMENT OF QUESTIONS PRESENTED... Question 1: Did the lower court err in denying Defendant-Appellants cross-motion, brought by order to show cause, seeking, inter alia, leave to amend the answer? Quest Question 2: Did the lower court err in granting Plaintiff-Respondent motion seeking, inter alia, summary judgment and an order of reference? STATEMENT OF FACTS.....

ARGUMENT Point I - Defendant-Appellant Is Entitled To Amend His Answer Pursuant To CPLR 3025(b), When He Learned That the Plaintiff Was Neither The Servicer of the Note Nor The Actual Lender. Point II - Mr. Sharifs Proposed Amended Answer, With The Affirmative Defense That The Note Was Never Assigned or Delivered To US Bank, Is Indisputably Dispositive In Mr. Sharifs Favor Point III - The Action, Including the US Banks Motion For Summary Judgment, Should Have Been Stayed Until Mr. Sharif Interposed His Amended Answer. Point IV - US Banks Motion for Summary Judgment Should Have Been Denied. CONCLUSION.

9 9

16

22 24 27

PRINTING SPECIFICATIONS STATEMENT.

29

TABLE

OF

AUTHORITIES

CASES Abrahamian v.Tak Chan 33, A.D.3d 947, 949, 824 N.Y.S.2d 117, 119 (2d Dept 2006) Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986) Campaign v. Barba, 23 A.D.3d 327, 805 N.Y.S.2d 86 (2d Dept 2005) Caprer v. Nussbaum, 36 A.D.3d 176, 825 N.Y.S.2d 55 (2d Dept 2006) Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387 (1957). Clarkin v. Staten Island University Hosp, 242, A.D.2d 552, 662 N.Y.S.2d 91 (2d Dept 1997) Dinizio and Cook, Inc. v. Duck Creek Marina at Three Mile Harbor, Ltd., 32 A.D.3d 989, 990, 821 N.Y.S.2d 649, 650 (2d Dept 2006) Dittmar Explosives v. A.E. Ottaviano, Inc., 20 N.Y.2d 498, 501, 285 N.Y.S.2d 55, 231 N.E.2d 756 (1967) Dorival v. DePass, 74 A.D.3d 729, 901 N.Y.S.2d 528 (2d Dept 2010). Edenwald Contracting Co., Inc. v. City of New York, 60 N.Y.2d 957, 459 N.E.2d 164 (1983) First Trust Nat Assn v. Meisels, 234 A.D.2d 414, 651 N.Y.S.2d 121 (2d Dept 1996) Flyer v. Sullivan, 284 A.D.697, 134 N.Y.S.2d 521 (1st Dept 1954) Fryer v. Rockefeller, 18 Sickles 268, 63 N.Y.268 (1875). GE Capital Mortg. Services, Inc. v. Powell, 18 Misc.3d 228, 845 N.Y.S.2d 722 (N.Y. Sup, Kings Co. 2007)

PAGE 11 24 16 19, 21, 26 25 9, 11, 15

10, 11, 15

9, 11, 15 25 11, 15 17 20, 21 21, 26 19, 21, 26

ii

Gelbard v. Bodary, 270 A.D.2d 866, 706 N.Y.S.2d 801 (4th Dept 2000) Hirschfeld v. Hogan, 60 A.D.3d 728, 874 N.Y.S.2d 585 (2d Dept 2009) HSBC Bank USA V. Miller, 26 Misc.3d 407, 889 N.Y.S.2d 430, 2009 N.Y. Slip Op. 29444 (N.Y. Sup. Ct. Sullivan Cty 2009) Kulge v. Fugazy, 145 A.D.2d 537, 536 N.Y.S.2d 92 (2d Dept 1998); Lucido v. Macnuso, 49 A.D.3d 220, 222, 851 N.Y.S.2d 238, 239 (2d Dept 2008) Merritt v. Batholick, 9 Tiffany 44, 36 N.Y.44 (1867) Nassi v. Joseph DiLemme Const. Corp., 250 A.D.2d 658, 659, 672 N.Y.S.2d 431, 432 (2d Dept 1998); Pick v. McCombs, 57 A.D.2d 1078, 395 N.Y.S.2d 819 (4th Dept 1977) Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 N.Y.2d 801, 766 N.Y.S.2d 654, 798 N.E.2d 1047 (2003) cert. denied 540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430 (2003). Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387 (1957) Slutsky v. Blooming Grove Inn, Inc., 147 A.D.2d 208, 212, 542 N.Y.S.2d 721, 723 (2d Dept 1989). Stein v. Garfield Regency Condominium, 65 A.D.3d 1126, 886 N.Y.S.2d 54 (2d Dept 2009) Taylor v. Village of Ilion, 231 A.D. 923, 648 N.Y.S.2d 362 (4th Dept 1996) Village of Pomona v. Town of Ramapo, 41 A.D.3d 837, 838 N.Y.S.2d 653 (2d Dept 2007) Wells Fargo Bank Minnesota, Nat. Assn v. Mastropaolo, 42 A.D.3d 239, 242, 837 N.Y.S.2d 247, 249 (2d Dept 2007) Winegard v. New York University Medical Center, 64 N.Y.2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316

13, 14 18 17, 20

17, 21, 26 10, 11, 15 17, 21, 26 9, 15 13, 15 19

24 18, 21, 26 11, 15 13 18 18

24

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(1985) Zinker v. Makler, 298 A.D.2d 516, 748 N.Y.S.2d 780 (2d Dept 2002) Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980)

25, 26 24

STATUTES CPLR 101 CPLR 2201 CPLR 3025(b) CPLR 3211 CPLR 3212(b) UCC 3-104 UCC 3-202(2)

PAGE 16 22 9, 10, 15 18, 26 24, 25, 26 18, 26 18, 26

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PRELIMINARY STATEMENT In this residential foreclosure action, Defendant-Appellant Mohamed Y. Sharif, appeals, as of right, pursuant to CPLR 5701(a)(1), from an order of the Supreme Court, Nassau County, signed by the Honorable Thomas A. Adams on August 17, 2010 which denied Mr. Sharifs request seeking, inter alia, leave to amend his answer immediately upon the discovery that Plaintiff-Respondent did not own the underlying note contrary to Plaintiff-Respondents misstated allegations in its Verified Complaint. Rather than grant Defendant-Appellants motion, brought by Order To Show Cause, Justice Adams improperly granted PlaintiffRespondents motion seeking summary judgment and an order of reference. As more fully developed herein, leave to amend an answer is freely given and, accordingly, Defendant-Appellants motion should have been granted by the lower court. Plaintiff-Respondents motion should have been denied.

STATEMENT

OF

QUESTIONS PRESENTED

Question 1: Did the lower court err in denying Defendant-Appellants crossmotion, brought by order to show cause, seeking, inter alia, leave to amend the answer? The motion court, improperly relying upon case law from the Fourth Judicial Department, incorrectly held that Defendant has failed to establish a reasonable excuse for his delay in seeking an amendment of his answer to include such defense

Accordingly, this question should be answered in the affirmative. Question 2: Did the lower court err in granting Plaintiff-Respondent motion seeking, inter alia, summary judgment and an order of reference? The motion court incorrectly held that Plaintiff established a prima facie right to summary judgment. Defendant has failed to establish or raise an issue of fact to a defense to the action. Accordingly, this question should be answered in the affirmative.

STATEMENT

OF

FACTS

On or about October 19, 1999, Defendant-Appellant Mohamed Sharif, with his wife, Defendant Nazimah Sharif, purchased the real property located at and commonly known as 94 Babylon Turnpike, Merrick, New York, situated within the County of Nassau, State of New York (Subject Property) (R-217-218). In 2005, Mr. Sharif refinanced his property and borrowed Three Hundred Forty Nine Thousand Eight Hundred ($349,800) Dollars from Quicken Loans, Inc. as evidence by an Adjustable Rate Note (Note) (R-219-222). To secure repayment pursuant to the terms of the Note, Mr. Sharif gave a mortgage, as recorded with the Clerks Office of Nassau County (R-223-244). In September, 2007, Mr. Sharif, suffered from an illness temporarily rendering him unable to work in his profession as a taxi driver. Resultantly, he was unable to earn enough money to send a timely payment to his mortgagee (or its servicer) (R-138, and 141)

In November, 2007, after Mr. Sharifs attempted to cure his arrears, Merrill Lynch returned Mr. Sharifs mortgage payment and requested that Mr. Sharif tender payment of $7,446.35 (R-132). In December, 2007, Mr. Sharif tendered such payment (R-134). Mr. Sharif also delivered correspondence explaining his financial circumstances (R-141). In January, 2008, Merrill Lynch rejected and returned Mr. Sharifs payment of $7,515.75 (covering October, November, and December arrears) (R-134). Plaintiff-Respondent alleges that, soon thereafter, the mortgage (not the Note) was assigned, properly or otherwise, to US Bank, National Association as trustee for MLMI 2005-A9 and then to US Bank, National Association successor-in-interest to Wachovia Bank, N.A. as Indenture Trusee of MLMI 2005-A9 (R-245-248). On August 4, 2008, Plaintiff-Respondent U.S. Bank, National Association, successor-in-interest to Wachovia Bank, N.A. as indentured Trustee of MLMI 2005-A9 (US Bank) commenced the underlying foreclosure action by filing a Summons, Complaint, and

Notice of Pendency(R-73-92).

The Complaint was verified and

certified by US Banks attorney, Frank M. Cassara of Shapiro & DiCaro, LLP (R-86).1 On August 25, 2008, Mr. Sharif answered the complaint denying the allegations against him or, alternatively, denying having knowledge or information to form a belief as to the truth of the allegations against him (R-99-104). Without hesitation, Mr. Sharif continued his efforts to cure his default directly with the company that was demanding payment, PHH Mortgage (R-168, 323 12).2 In November 12, 2008, while Mr. Sharif attempted to resolve the alleged problems, US Bank, in bad-faith, filed a motion seeking

Such verification, sworn to before a notary public, included that the grounds of my belief as to all matters in the complaint not stated to be upon my knowledge are based upon the book and records of the Plaintiff. (R-86) Furthermore, Mr. Cassara certified, pursuant 22 NYCRR 130-1.1, that after an inquiry reasonable under the circumstances, that the presentation of the Summons and Complaint in this action, or the contentions therein, are not frivolous (R-87). 2 At no time did Mr. Sharif ever communicate with anyone from US Bank nor was he ever told that he owed money to US Bank(R-167-168).
1

summary judgment initially returnable on December 19, 2008 (R-16 & 17, 323 12).3 Several months later, on April 14, 2009, PHH Mortgage acknowledged receipt of Mr. Sharifs papers requesting a

modification of the loan terms (R-143).4 To Mr. Sharifs surprise, on January 25, 2010, PHH Mortgage delivered correspondence to Mr. Sharif unequivocally identifying itself as the Lender, not US Bank, as it agreed to modify Mr. Sharifs Loan (R-175, 176, 180, 184). Because of the patently obvious fact that US Bank is not the Lender despite the its attorneys sworn statements to the contrary, Mr. Sharif, through his counsel immediately prepared an Order To Show Cause seeking an order staying the action, granting leave to serve and to file an amended answer, and dismissing the action. After

This motion was adjourned, on consent, many times and was not fully submitted until July 22, 2010, resulting in the August 17, 2010 Order being appealed from (R-9-10 & R-323 12). 4 Contemporaneous with the underlying litigation, Mr Sharif was working with an independent mortgage specialist directly with the Lender, PHH Mortgage; not with US Bank (R-167-168).

providing the requisite 202.7 notice, it snowed; courts were closed (R-157). After providing a new 202.7 notice, Mr. Sharif submitted the Order To Show Cause for signature (R-151-306). The application, initially returnable March 3, 2010 was adjourned to July 22, 2010. US Bank filed its opposition papers (R-307-320). Mr. Sharif timely filed his Affirmation In Reply to Plaintiffs Opposition on July 20, 2010 (R-321-325). For reasons known, when rendering its decision and order, the Court did not consider Mr. Sharifs Reply papers (Cf R-321 with R9). As argued below, the entire record is void of any document identifying Plaintiff-Respondent as the Lender. The entire record is barren of any sworn statement that US Bank took delivery of the underlying note or that it has actually has the note in its possession (See, Record On Appeal, generally).

The Record On Appeal, substantively developed after issue was joined, establishes that someone other than US Bank is the Lender. (Id.) Because of the foregoing, Mr. Sharifs request to stay the action and to serve and file an amended answer should have been granted. In the same vein, US Banks motion for summary judgment, based upon its own misstatements, should have been denied.

ARGUMENT POINT I D EFENDANT -A PPELLANT I S E NTITLED T O A MEND H IS A NSWER P URSUANT T O CPLR 3025( B ), W HEN H E L EARNED T HAT THE P LAINTIFF W AS N EITHER T HE S ERVICER O F THE N OTE N OR T HE A CTUAL L ENDER . Rule 3025(b) of the Civil Practice Law and Rules (CPLR), provides that [a] party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given . It is well settled that a motion to amend a pleading should be freely given absent a showing of prejudice or surprise to the opposing party. Nassi v. Joseph DiLemme Const. Corp., 250 A.D.2d 658, 659, 672 N.Y.S.2d 431, 432 (2d Dept 1998); See also, Clarkin v. Staten Island University Hosp, 242, A.D.2d 552, 662 N.Y.S.2d 91 (2d Dept 1997). Furthermore, absent prejudice, an amendment may be

allowed during or even after trial (Dittmar Explosives v. A.E. Ottaviano, Inc., 20 N.Y.2d 498, 501, 285 N.Y.S.2d 55, 231 N.E.2d

756 [1967] Dinizio and Cook, Inc. v. Duck Creek Marina at Three Mile Harbor, Ltd., 32 A.D.3d 989, 990, 821 N.Y.S.2d 649, 650 (2d Dept 2006). An application for leave to amend a pleading pursuant to CPLR 3025(b) is governed by a substantially more permissive standard [than what existed 50 years ago]. In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. Lucido v. Macnuso, 49 A.D.3d 220, 222, 851 N.Y.S.2d 238, 239 (2d Dept 2008).

Cases in involving CPLR 3025(b) that place a burden on the pleader to establish the merit of the proposed amendment erroneously state the applicable standard and are no longer to be followed. No evidentiary showing of

10

merit is required under CPLR 3025(b) Id. at 229, 851 N.Y.S.2d at 245. Mere lateness is not a barrier to the amendment. It must be coupled with significant prejudice to the other side Abrahamian v.Tak Chan 33, A.D.3d 947, 949, 824 N.Y.S.2d 117, 119 (2d Dept 2006) citing to Edenwald Contracting Co., Inc. v. City of New York, 60 N.Y.2d 957, 459 N.E.2d 164 (1983). Simply put: without significant prejudice or surprise to the opposing party stemming for the time between the first pleading and the motion seeking leave to amend that pleading, such leave must be granted. CPLR 3025(b); Edenwald; Dittmar; Stein v. Garfield Regency Condominium, 65 A.D.3d 1126, 886 N.Y.S.2d 54 (2d Dept 2009); Lucido; Abrahamian; Dinizio; Nassi; Clarkin. In this case, Mr. Sharifs proposed amending answer includes the proposed Affirmative Defense that that Mr. Sharif does not owe anything to the US Bank because US Bank never took physical delivery or assignment of the underlying note purportedly giving rise to this foreclosure action, and, therefore, US Bank lacks standing (R-

11

283-288). US Bank does not have the Note. Throughout the record, US Bank, through its attorneys and agents, never admit that they actually hold the note or that they took physical delivery of it. (See, Record on Appeal, generally). US Bank argues that it has

assignments of a mortgage from Mortgage Electronic Registrations Systems, Inc. (R-309). The copy of the Note provided by US Bank, want of any endorsement or allonge, only proves the Mr. Sharif owes money to someone other than US Bank (R-34-37). In the lower court, US Bank argued that it would be prejudiced if Mr. Sharifs motion is granted because Mr. Sharif waited to seek leave to amend his answer until after settlement talks failed (R-307308). US Bank is wrong: settlement talks did not fail. It was the fruit of the settlement talks that proved US Bank was not the Lender. (R173-200). PHH Mortgage (not US Bank) agreed to modify the loan; settlement talks were successful. US Banks name appears nowhere in PHH Mortgages Loan Modification Package (Id.). The time

between Mr. Sharifs initial answer to US Banks complaint and his discovery that US Banks complaint contained misstatements of

12

materials facts is attributable to the apparent fact that US Bank was not involved in any portion of PHH Mortgage and Mr. Sharifs settlement negotiations (Id.). As part of US Banks opposition to Mr. Sharifs motion brought by Order To Show Cause, US Bank misguidedly relied upon three non-controlling Fourth Judicial Department cases dealing with Statute of Limitations; none of which are applicable to this case.5 First, in Taylor v. Village of Ilion, the Defendant sought leave to serve a second amended answer, asserting the Statute of Limitations Defense. That is not the case at bar. Second, in Pick v. McCombs, the Court held that the Plaintiffs should not be permitted to amend their reply long after Plaintiffs certified their readiness for trial and on the day of trial to assert the defense of Statute of Limitations to defendants counterclaims, Pick, 57 A.D.2d at 1078, 395 N.Y.S.2d at 820. That is not the case at bar.

Taylor v. Village of Ilion, 231 A.D. 923, 648 N.Y.S.2d 362 (4th Dept 1996);

Pick v. McCombs, 57 A.D.2d 1078, 395 N.Y.S.2d 819 (4th Dept 1977); Gelbard v. Bodary, 270 A.D.2d 866, 706 N.Y.S.2d 801 (4th Dept 2000).

13

Third, Gelbard v. Bodary, appears to be a defamation action wherein the Plaintiff attempted to interpose a third amended Complaint; but, it appears that the amended allegations were time barred. Again, the issue of State of Limitations does not apply to the case at bar. In this case, US Bank would not have suffered any prejudice in the event Mr. Sharif was granted leave to amend his answer because, at the time the Order To Show Cause was filed, the parties were still in settlement negotiations (R-158, 168, 307). No note of issue was filed, no discovery occurred, no party certified that the action was ready for trial. US Bank cannot be surprised that Mr. Sharif desires to prove that US Banks complaint is unsupported by the record. If US Bank truly holds and owns the Note upon which they sought to foreclose, then they will not be prejudiced if Mr. Sharifs answer is amended and interposed as proposed (R-300-305). Conversely, if US Bank does not own the Note and it was never assigned to it, Mr. Sharif will suffer irreparable prejudice and harm.

14

He will likely be evicted from his home.

US Banks action, if

successful, will be miscarriage of justice and a failure to protect homeowners from abusive and unscrupulous banks and investors. Finally, and most surprisingly, in reaching his decision and order, Honorable Thomas A. Adams was similarly misguided by Pick, a Fourth Department case not controlling in this Department and not similar to the case at bar (R-10). Because of the foregoing, Mr. Sharifs request seeking leave to amend his answer should have been granted. Justice Adams Short Form Order should be reversed. CPLR 3025(b); Edenwald; Dittmar; Stein; Lucido; Abrahamian; Dinizio; Nassi; Clarkin.

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POINT II M R . S HARIF S P ROPOSED A MENDED A NSWER , W ITH T HE A FFIRMATIVE D EFENSE T HAT T HE N OTE W AS N EVER A SSIGNED OR D ELIVERED T O US B ANK , I S I NDISPUTABLY D ISPOSITIVE I N M R . S HARIF S F AVO R . Civil Practice Law and Rules (CPLR) shall govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute. 6 The CPLR dictates the proper and legal procedure to commence an action and to bring a motion before the Court and provides relief available to the successful party. To establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish the existence of the mortgage, mortgage note, ownership of the mortgage, and the defendants default in payment. Campaign v. Barba, 23 A.D.3d 327, 805 N.Y.S.2d 86 (2d Dept 2005). Furthermore, for almost 150 years, the rule has been that the assignment of a mortgage without assignment of

CPLR 101.

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the debt is a nullity and no interest is assigned by it. Merritt v. Batholick, 9 Tiffany 44, 36 N.Y.44 (1867). Without an assignment of a note, a cause of action for foreclosure must fail. HSBC Bank USA V. Miller, 26 Misc.3d 407, 889 N.Y.S.2d 430, 2009 N.Y. Slip Op. 29444 (N.Y. Sup. Ct. Sullivan Cty 2009) citing to Merritt and Kulge v. Fugazy, 145 A.D.2d 537, 536 N.Y.S.2d 92 (2d Dept 1998); c.f. First Trust Nat Assn v. Meisels, 234 A.D.2d 414, 651 N.Y.S.2d 121 (2d Dept 1996). In HSBC Bank v. Miller, for example, Plaintiff, as a purported mortgagee, attempted to foreclose on a mortgage after an alleged default in payments on a note, but Plaintiff failed to produce a note or its assignment to the Plaintiff. The Court pointed out that Plaintiffs argument that the note is assigned in the same instrument containing the assignment of the related mortgage is unsupported in law and is wrong. On reargument, even the Plaintiff abandoned its futile argument. HSBC Bank. The law is perfectly clear:

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A note secured by a mortgage is a negotiable instrument (see, UCC 3-104) which requires an indorsement on the instrument itself or on a paper so firmly affixed thereto as to become a part thereof (UCC3-202[2] in order to effectuate a valid assignment of the entire instrument. Slutsky v. Blooming Grove Inn, Inc., 147 A.D.2d 208, 212, 542 N.Y.S.2d 721, 723 (2d Dept 1989). Courts appear divided as to whether the lack of standing warrants a dismissal pursuant to CPLR 3211(a) subdivision 3 or 7; nevertheless, the dismissal is warranted if in fact, the Plaintiff lacks standing. Standing and capacity to sue are related, but distinguishable, legal concepts. Wells Fargo Bank Minnesota, Nat. Assn v. Mastropaolo, 42 A.D.3d 239, 242, 837 N.Y.S.2d 247, 249 (2d Dept 2007). Although these concepts may be distinguishable, the Appellate Division has dismissed actions pursuant to CPLR 3211(a) subdivision 3 because of a lack of standing. See, e.g. Hirschfeld v. Hogan, 60 A.D.3d 728, 874 N.Y.S.2d 585 (2d Dept 2009); Village of Pomona v. Town of Ramapo, 41 A.D.3d 837, 838 N.Y.S.2d 653 (2d Dept 2007).

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Standing to sue requires the litigant to possess an interest in the claim at issue in the lawsuit that the law will recognize as sufficient predicate for determining the issue at the litigants request. Caprer v. Nussbaum, 36 A.D.3d 176, 825 N.Y.S.2d 55 (2d Dept 2006). To have standing in an action, the Plaintiff must have an interest in the claim giving rise to the action, for example, ownership of a note. GE Capital Mortg. Services, Inc. v. Powell, 18 Misc.3d 228, 845 N.Y.S.2d 722 (N.Y. Sup, Kings Co. 2007) relying, in part, upon Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 N.Y.2d 801, 766 N.Y.S.2d 654, 798 N.E.2d 1047 (2003) cert. denied 540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430 (2003). (In this Kings County Supreme Court case, Justice Arthur M. Schack found that Plaintiff GE Capital Mortg. Services, Inc. lacked standing and dismissed the foreclosure action because, among other things, the Plaintiff did not own the mortgage and note secured by the mortgage at the time of the action).

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In the instant action, upon examination of the allegations contained the Complaint, it appears that that the complaint is void of any alleged delivery of the Note to US Bank (R-76-87). US Banks references to assignments of mortgages are of no moment (R-26, 62, 640. See, e.g. HSBC Bank. In the motion court, in grave desperation to validate the missing assignment of the Note, US Bank argued an alternative theory: a bond and mortgage may be transferred by delivery without a written instrument or assignment. Citing to Flyer v. Sullivan, 284 A.D.697, 134 N.Y.S.2d 521 (1st Dept 1954) (R-312). Again, US Bank is misguided by case law. The First Department actually wrote, in Flyer, that [t]he assignment by a mortgagee of the mortgage lien in the land, without an assignment of the debt, is considered in law as a nullity. Id. at 698, 134 N.Y.S.2d at 523. Flyer supports Mr. Sharifs position. Notwithstanding the lack of supporting case law, US Bank only proffers this alternative theory. US Bank never stated where and

20

when such unwritten delivery of the Note occurred, if ever (See, e.g., R-307-320). Without an assignment or physical delivery of the note, US Bank is without standing to sue Mr. Sharif.US Banks foreclosure action fails. Merritt; Slutsky; Kulge; Flyer. For reasons unknown, Justice Adams speculatively decided that US Bank could have taken delivery of the Note by means other than written negotiation (R-10).7 While this may be lawfully correct, it is merely speculative and unsupported by the Record. US Bank is not entitled to a foreclosure of the mortgage in this action. Merritt, Slutsky, Kulge. US Banks cause of action fails as a matter of law. Merritt, Slutsky, Kulge, Caprer, GE Capital Mortgage. Because of the foregoing, had Justice Adams granted Mr. Sharif leave to amend his answer, the Court should have also dismissed the action in its entirety. Mr. Sharifs motion should have been granted.

Citing to Fryer v. Rockefeller, 18 Sickles 268, 63 N.Y.268 (1875).

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Accordingly, it is respectfully submitted that Justice Adams Short Form Order should be reversed. POINT III T HE A CTION , I NCLUDING TH E US B ANK S M OTION F O R S UMMARY J UDGMENT , S HOULD H AVE B EEN S TAYED U NTIL M R . S HARIF I NTERPOSED H IS A MENDED A NSWER . CPLR 2201 provides that except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just. Upon review of the papers submitted in Mr. Sharifs Order To Show Cause, it becomes evident that that the newly discovered information that PHH Mortgage is the Lender rather than US Bank, Mr. Sharifs new defense, as pleaded in the proposed amended answer, must be interposed before a motion for summary judgment can be entertained (R-300-305). And, until such time, the action should have been stayed pursuant to CPLR 2201. Because of the foregoing, Justice Adams should have granted Mr. Sharifs motion, brought by Order To Show Cause, seeking, inter

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alia, to stay this action so that he can serve and file his proposed amended answer. Justice Adams did not address this portion of Mr. Sharifs motion brought by Order To Show Cause. Accordingly, it is respectfully submitted that Justice Adams Short Form Order should be reversed.

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POINT IV US B ANK S M OTION FOR S UMMARY J UDGMENT S HOULD H AVE B EEN D ENIED .

Civil Practice Law and Rules (CPLR) Rules 3212(b) provides: A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. In their application of CPLR 3212(b), the Court of Appeals continually rules: The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact.8
8

Alvarez v. Prospect Hosp., 69 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572, (1986) citing to Winegard v. New York Univ Med Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980); Sillman v. Twentieth

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Pursuant to CPLR 3212(b), US Banks motion seeking summary judgment necessarily requires US Bank to submits all pleadings. To this end, summary judgment cannot be decided in favor of US Bank unless US Bank provides a copy of Mr. Sharifs amended answer. As argued above, Mr. Sharifs proposed amended answer raises, at a minimum, triable issues of fact that would satisfy a burden that may shift to him if the Court believed that US Bank established its prima facie entitlement to summary judgment, thereby defeating US Banks motion. Dorival v. DePass, 74 A.D.3d 729, 901 N.Y.S.2d 528 (2d Dept 2010). However, upon its search of the Record on Appeal, this Court can grant summary judgment in Mr. Sharifs favor after it searches the record before it. Zinker v. Makler, 298 A.D.2d 516, 748 N.Y.S.2d 780 (2d Dept 2002).

Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387 (1957).

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As more fully developed above, the requisite material fact necessarily needed in a foreclosure action is not disputed: US Bank never took delivery of and does not hold the Note, or a proper assignment thereof (See, Record On Appeal, generally). Because of the foregoing, upon the search of the record, US Banks action against Mr. Sharif should be dismissed. UCC 3-104; UCC 3-202(2); CPLR 3211; CPLR 3212; Merritt, Fryer, Slutsky, Kulge, Caprer, GE Capital Mortgage; Zinker. Mr. Sharifs motion, brought by Order To Show Cause, seeking, inter alia, to amend his answer and, then, to dismiss the action should have been granted. US Banks motion seeking summary judgment should have been denied. Accordingly, it is respectfully submitted that Justice Adams Short Form Order should be reversed.

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CONCLUSION There is no evidence in this action that supports US Banks Complaint, verified and certified by an attorney. Immediately upon the discovery that US Bank, by its attorneys, advanced factual and material misstatements, Mr. Sharif moved to amend his answer, to stay the action pending the interposition of this answer, and, then, to dismiss the action based upon all of the documents presented by US Bank showing that US Bank has no right to advance its claim in the first place. Accordingly, Defendant-Appellant Sharif respectfully requests that this Court reverse Justice Adams decision and Short Form Order denying Defendant-Respondents application seeking a stay of this action, leave to interpose his answer, a dismissal of this action and Defendant-Appellant also respectfully requests that this Court reverse Justice Adams decision and Short Form Order granting PlaintiffRespondent US Banks application seeking summary judgment.

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Dated:

Queens, New York March 19, 2011

Respectfully submitted,

By: Steven Alexander Biolsi Attorney for Defendant-Appellant 7101 Austin Street, Suite 201B Forest Hills, NY 11375 Telephone: (718) 263-2624

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CERTIFICATION OF COMPLIANCE WITH PRINTING SPECIFICATIONS PURSUANT TO 670.10.3(f) I, the undersigned, certify pursuant to 22 NYCRR 670.10.3(f) that the foregoing brief was prepared on a computer using Microsoft Word 2007 software. Type: Proportionally spaced; Typeface: Times New Roman; Point size: 14 text 12 footnotes; Line Spacing: Double; Word Count: The total number of words in this brief, inclusive of point headings, footnotes and this Statement, and exclusive of pages containing the table of contents, table of authorities, Statement pursuant to CPLR 5531, proof of service, is 4,029. Dated: Queens, New York March 19, 2011

____________________________ Steven Alexander Biolsi

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