03 14 11 Sharif Appellants Brief

Nassau County Clerk’s 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,

APPELLATE DIVISION DOCKET №

2010-09895

AGAINST

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.

APPELLANT’S 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


ATTORNEY FOR DEFENDANT-APPELLANT

7101 Austin Street, Suite 201B

Forest Hills, New York, 11375

(718) 263-2624

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

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

Plaintiff-Respondent,

Docket № 2010-09895

- - against - - STATEMENT

PURSUANT TO CPLR § 5531

Mohamed Y. Sharif, Defendant-Appellant, 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.

Nassau County

Supreme Court Index № 14370/08

---------------------------------------------------------------------X

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/Appellant’s

motion to amend his answer and granted Plaintiff/Respondent’s 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

i

T A B L E O F C O N T E N T S

Page

TABLE OF AUTHORITIES……………………………………………….. ii

PRELIMINARY STATEMENT…………….………………..………......... 1

STATEMENT OF QUESTIONS PRESENTED…………………………... 2

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…….…………………………………….……... 3

ARGUMENT ………………………………………………………… 9

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. 9

Point II - Mr. Sharif’s Proposed Amended Answer, With The Affirmative

Defense That The Note Was Never Assigned or Delivered To US

Bank, Is Indisputably Dispositive In Mr. Sharif’s Favor 16

Point III - The Action, Including the US Bank’s Motion For Summary

Judgment, Should Have Been Stayed Until Mr. Sharif Interposed

His Amended Answer. 22

Point IV - US Bank’s Motion for Summary Judgment Should Have Been

Denied. 24

CONCLUSION……………………………………………………………. 27

PRINTING SPECIFICATIONS STATEMENT………………………. 29

ii

T A B L E O F A U T H O R I T I E S

CASES PAGE

Abrahamian v.Tak Chan 33, A.D.3d 947, 949, 824

N.Y.S.2d 117, 119 (2d Dep’t 2006) 11

Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d

923, 501 N.E.2d 572 (1986) 24

Campaign v. Barba, 23 A.D.3d 327, 805 N.Y.S.2d 86 (2d

Dep’t 2005) 16

Caprer v. Nussbaum, 36 A.D.3d 176, 825 N.Y.S.2d

55 (2d Dep’t 2006) 19, 21, 26

Century-Fox Film Corp., 3 N.Y.2d 395, 165

N.Y.S.2d 498, 144 N.E.2d 387 (1957). 25

Clarkin v. Staten Island University Hosp, 242,

A.D.2d 552, 662 N.Y.S.2d 91 (2d Dep’t

1997)

9, 11, 15

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 Dep’t 2006)

10, 11, 15

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) 9, 11, 15

Dorival v. DePass, 74 A.D.3d 729, 901 N.Y.S.2d 528 (2d

Dep’t 2010). 25

Edenwald Contracting Co., Inc. v. City of New York, 60

N.Y.2d 957, 459 N.E.2d 164 (1983) 11, 15

First Trust Nat Ass’n v. Meisels, 234 A.D.2d 414, 651

N.Y.S.2d 121 (2d Dep’t 1996) 17

Flyer v. Sullivan, 284 A.D.697, 134 N.Y.S.2d 521 (1st

Dep’t 1954) 20, 21

Fryer v. Rockefeller, 18 Sickles 268, 63 N.Y.268 (1875). 21, 26

GE Capital Mortg. Services, Inc. v. Powell, 18 Misc.3d

228, 845 N.Y.S.2d 722 (N.Y. Sup, Kings Co. 2007) 19, 21, 26

iii

Gelbard v. Bodary, 270 A.D.2d 866, 706 N.Y.S.2d 801

(4th

Dep’t 2000) 13, 14

Hirschfeld v. Hogan, 60 A.D.3d 728, 874 N.Y.S.2d 585

(2d Dep’t 2009) 18

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)

17, 20

Kulge v. Fugazy, 145 A.D.2d 537, 536 N.Y.S.2d 92 (2d

Dep’t 1998); 17, 21, 26

Lucido v. Macnuso, 49 A.D.3d 220, 222, 851 N.Y.S.2d

238, 239 (2d Dep’t 2008) 10, 11, 15

Merritt v. Batholick, 9 Tiffany 44, 36 N.Y.44 (1867) 17, 21, 26

Nassi v. Joseph DiLemme Const. Corp., 250 A.D.2d 658,

659, 672 N.Y.S.2d 431, 432 (2d Dep’t 1998); 9, 15

Pick v. McCombs, 57 A.D.2d 1078, 395 N.Y.S.2d 819

(4th Dep’t 1977) 13, 15

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).

19

Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d

395, 165 N.Y.S.2d 498, 144 N.E.2d 387 (1957) 24

Slutsky v. Blooming Grove Inn, Inc., 147 A.D.2d 208,

212, 542 N.Y.S.2d 721, 723 (2d Dep’t 1989). 18, 21, 26

Stein v. Garfield Regency Condominium, 65 A.D.3d

1126, 886 N.Y.S.2d 54 (2d Dep’t 2009) 11, 15

Taylor v. Village of Ilion, 231 A.D. 923, 648 N.Y.S.2d

362 (4th

Dep’t 1996) 13

Village of Pomona v. Town of Ramapo, 41 A.D.3d 837,

838 N.Y.S.2d 653 (2d Dep’t 2007) 18

Wells Fargo Bank Minnesota, Nat. Ass’n v. Mastropaolo,

42 A.D.3d 239, 242, 837 N.Y.S.2d 247, 249 (2d

Dep’t 2007)

18

Winegard v. New York University Medical Center, 64

N.Y.2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 24

iv

(1985)

Zinker v. Makler, 298 A.D.2d 516, 748 N.Y.S.2d 780 (2d

Dep’t 2002) 25, 26

Zuckerman v. City of New York, 49 N.Y.2d 557, 427

N.Y.S.2d 595, 404 N.E.2d 718 (1980) 24

STATUTES PAGE

CPLR §101 16

CPLR 2201 22

CPLR 3025(b) 9, 10, 15

CPLR 3211 18, 26

CPLR 3212(b) 24, 25, 26

UCC 3-104 18, 26

UCC 3-202(2) 18, 26

1

P R E L I M I N A R Y S T A T E M E N T

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. Sharif‟s 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-Respondent‟s

misstated allegations in its Verified Complaint.

Rather than grant Defendant-Appellant‟s motion, brought by

Order To Show Cause, Justice Adams improperly granted Plaintiff-

Respondent‟s 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-Appellant‟s motion should

have been granted by the lower court. Plaintiff-Respondent‟s motion

should have been denied.

2

S T A T E M E N T O F Q U E S T I O N S P R E S E N T E D

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?

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.

3

S T A T E M E N T O F F A C T S

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 “re-

financed” 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 Clerk‟s 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)

4

In November, 2007, after Mr. Sharif‟s attempted to cure his

arrears, Merrill Lynch returned Mr. Sharif‟s 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.

Sharif‟s 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

5

Notice of Pendency(R-73-92). The Complaint was verified and

certified by US Bank‟s 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

1 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).

6

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. Sharif‟s papers requesting a

modification of the loan terms (R-143).4

To Mr. Sharif‟s 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.

Sharif‟s Loan (R-175, 176, 180, 184).

Because of the patently obvious fact that US Bank is not the

“Lender” despite the its attorney‟s 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

3 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).

7

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 Plaintiff‟s

Opposition on July 20, 2010 (R-321-325).

For reasons known, when rendering its decision and order, the

Court did not consider Mr. Sharif‟s Reply papers (Cf R-321 with R-

9).

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).

8

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. Sharif‟s request to stay the action

and to serve and file an amended answer should have been granted. In

the same vein, US Bank‟s motion for summary judgment, based upon

its own misstatements, should have been denied.

9

A R G U M E N T

P O I N T 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.

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 Dep‟t 1998); See also, Clarkin v. Staten

Island University Hosp, 242, A.D.2d 552, 662 N.Y.S.2d 91 (2d Dep‟t

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

10

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 Dep‟t 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 Dep‟t 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

11

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 Dep‟t

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 Dep‟t 2009);

Lucido; Abrahamian; Dinizio; Nassi; Clarkin.

In this case, Mr. Sharif‟s 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-

12

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. Sharif‟s motion is granted because Mr. Sharif waited to seek

leave to amend his answer until after settlement talks failed (R-307-

308). 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.” (R-

173-200). PHH Mortgage (not US Bank) agreed to modify the loan;

settlement talks were successful. US Bank‟s name appears nowhere

in PHH Mortgage‟s Loan Modification Package (Id.). The time

between Mr. Sharif‟s initial answer to US Bank‟s complaint and his

discovery that US Bank‟s complaint contained misstatements of

13

materials facts is attributable to the apparent fact that US Bank was

not involved in any portion of PHH Mortgage and Mr. Sharif‟s

settlement negotiations (Id.).

As part of US Bank‟s opposition to Mr. Sharif‟s 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.

5 Taylor v. Village of Ilion, 231 A.D. 923, 648 N.Y.S.2d 362 (4

th Dep‟t 1996);

Pick v. McCombs, 57 A.D.2d 1078, 395 N.Y.S.2d 819 (4th Dep‟t 1977); Gelbard

v. Bodary, 270 A.D.2d 866, 706 N.Y.S.2d 801 (4th

Dep‟t 2000).

14

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 Bank‟s 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. Sharif‟s

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.

15

He will likely be evicted from his home. US Bank‟s 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. Sharif‟s request seeking leave to

amend his answer should have been granted. Justice Adam‟s Short

Form Order should be reversed. CPLR 3025(b); Edenwald; Dittmar;

Stein; Lucido; Abrahamian; Dinizio; Nassi; Clarkin.

16

P O I N T I I

MR. SHARIF’S PROPOSED AMENDED ANSWER, WITH THE

AFFIRMATIVE DEFENSE THAT THE NOTE WAS NEVER

ASSIGNED OR DELIVERED TO US BANK, IS INDISPUTABLY

DISPOSITIVE IN MR. SHARIF’S FAVOR.

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 defendant‟s

default in payment.” Campaign v. Barba, 23 A.D.3d 327, 805

N.Y.S.2d 86 (2d Dep‟t 2005). Furthermore, for almost 150 years, the

rule has been that the assignment of a mortgage without assignment of

6 CPLR § 101.

17

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 Dep‟t 1998);

c.f. First Trust Nat Ass‟n v. Meisels, 234 A.D.2d 414, 651 N.Y.S.2d

121 (2d Dep‟t 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 Plaintiff‟s

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:

18

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 Dep‟t 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.

Ass‟n v. Mastropaolo, 42 A.D.3d 239, 242, 837 N.Y.S.2d 247, 249

(2d Dep‟t 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 Dep‟t 2009); Village of

Pomona v. Town of Ramapo, 41 A.D.3d 837, 838 N.Y.S.2d 653 (2d

Dep‟t 2007).

19

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 litigant‟s request.” Caprer v.

Nussbaum, 36 A.D.3d 176, 825 N.Y.S.2d 55 (2d Dep‟t 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).

20

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 Bank‟s

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 Dep‟t 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. Sharif‟s

position.

Notwithstanding the lack of supporting case law, US Bank only

proffers this alternative theory. US Bank never stated where and

21

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 Bank‟s 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 Bank‟s 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. Sharif‟s motion should have been granted.

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

22

Accordingly, it is respectfully submitted that Justice Adams‟

Short Form Order should be reversed.

P O I N T I I I

THE ACTION , INCLUDING THE US BANK’S MOTION FOR

SUMMARY JUDGMENT , SHOULD HAVE BEEN STAYED UNTIL

MR. SHARIF INTERPOSED HIS AMENDED ANSWER .

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. Sharif‟s Order To Show

Cause, it becomes evident that that the newly discovered information

that PHH Mortgage is the Lender rather than US Bank, Mr. Sharif‟s

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. Sharif‟s motion, brought by Order To Show Cause, seeking, inter

23

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. Sharif‟s

motion brought by Order To Show Cause.



24

P O I N T I V

US BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD

HAVE BEEN DENIED .

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

25

Pursuant to CPLR 3212(b), US Bank‟s 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. Sharif‟s amended

answer.

As argued above, Mr. Sharif‟s 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 Bank‟s motion. Dorival v. DePass, 74 A.D.3d 729, 901 N.Y.S.2d

528 (2d Dep‟t 2010).

However, upon its search of the Record on Appeal, this Court

can grant summary judgment in Mr. Sharif‟s favor after it searches the

record before it. Zinker v. Makler, 298 A.D.2d 516, 748 N.Y.S.2d

780 (2d Dep‟t 2002).

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

(1957).

26

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

Bank‟s 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. Sharif‟s 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 Bank‟s motion seeking summary judgment

should have been denied.



27

C O N C L U S I O N

There is no evidence in this action that supports US Bank‟s

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-Respondent‟s 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 Adam‟s decision and Short Form Order granting Plaintiff-

Respondent US Bank‟s application seeking summary judgment.

28

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

29

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

____________________________


03 14 11 Sharif Appellants Brief

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