HOME

DISCLAIMER
SITE MAP
EMAIL A TIP
SUPPORT
SUBSCRIBE
ADVERTISE

Enter search keyword

CLASS ACTIONS
DEPOSITIONS
Education »
Foreclosure Laws by State »
LPS 101
MERS 101
Securitization 101
Categorized | STOP FORECLOSURE FRAUD

[NYSC] Judge Spinner “Plaintiff’s Papers Raises Disturbing Issues”, “Appears To Run
Counter To New York’s Statute of Frauds” BENEFICIAL HOMEOWNER SERV.
CORP v. STEELE
Posted on07 February 2011. Tags: affidavit, affirmation, beneficial homeowner service corporation, DENIED, foreclosure fraud, Johnathan D. Picus,
Judge Jeffrey Arlen Spinner, Judge Spinner, new york, ny supreme court, Sanctions, Stephan Steele, Steven Tekulsky, summary judgment, Susan
Steele

2011 NY Slip Op 50015(U)

BENEFICIAL HOMEOWNER SERVICE CORPORATION, Plaintiff,

v.
STEPHEN STEELE, SUSAN STEELE, OCEAN BANK FSB, “JOHN DOE” AND “MARY ROE” (SAID
NAMES BEING FICTITIOUS, IT BEING THE INTENTION OF PLAINTIFF TO DESIGNATE ANY AND
ALL OCCUPANTS OF THE PREMISES BEING FORECLOSED HEREIN), Defendants.

2010-01996.Supreme Court, Suffolk County.

Decided January 7, 2011.Jonathan D. Pincus, Esq, 95 Allens Creek Road, Rochester, New York 14618, Attorneys for Plaintiff.
Steven Tekulsky, Esq., 113 Cedar Street, East Hampton, New York 11937, Attorneys for Defendants Steele.

JEFFREY ARLEN SPINNER, J.

Plaintiff has commenced this action pursuant to Real Property Actions and Proceedings Law Article 13, claiming foreclosure of a mortgage which
encumbers real property located at 634 Stephen Hands Path, East Hampton, Suffolk County, New York. In both its Verified Complaint both and the
present motion papers, Plaintiff alleges that it is the owner and holder of a Loan Agreement executed by STEPHEN STEELE and SUSAN STEELE
dated October 26, 2006 in the principal amount of $92,696.60 which is secured by a Mortgage of the same date and executed by both STEPHEN
STEELE and SUSAN STEELE, recorded with the Suffolk County Clerk in Liber 21410 of Mortgages at Page 639. Plaintiff further alleges that
Defendants STEELE are in default of their obligations under the Loan Agreement (though the nature and extent of the default is nowhere specified)
and it is claimed that the principal sum of $91,614.34 is due and owing, together with interest at the rate of 5.250% per annum as computed from
October 1, 2008. Defendants STEELE, through counsel, have timely appeared and have interposed an Answer consisting of general denials as to the
allegations of the Plaintiff’s Complaint together with eight affirmative defenses.

Plaintiff has moved for summary judgment in accordance with the provisions of CPLR 3212, having filed a Notice of Motion and supporting papers
dated May 18, 2010 and containing a CPLR § 2214(b) seven day notice as well as a request for appointment of a Referee pursuant to RPAPL §
1921. Curiously and in direct derogation of the mandatory provisions of 22 NYCRR § 202.7, Plaintiff has failed to specify or insert a return date for
the application and has apparently served its papers with no return date. Not surprisingly, counsel for Defendants has neither answered nor responded
thereto, presumably due to the lack of both a stated return date and appropriate notice. The Clerk of the Court apparently scheduled the motion for
June 10, 2010, which was administratively adjourned by the Court to November 17, 2010. In the interim period, mandatory foreclosure settlement
conferences in accordance with CPLR § 3408 were convened on September 2, 2010 and November 9, 2010 respectively. Thereafter and on
December 22, 2010, the Court received an Affidavit from Plaintiff’s counsel which purports to comply with the provisions of Administrative Order no.
AO548/10.

It is settled law in New York that the initial burden is placed upon the proponent of an application for summary judgment as to making a prima facie
case for entitlement to the relief sought, Norwest Bank Minnesota N.A. vs. Sabloff, 297 AD2d 722 (2nd Dept. 2002). Where Plaintiff comes
forward with the mortgage at issue together with the underlying note or bond coupled with evidence of the alleged default, it establishes its prima facie
right to judgment as a matter of law, Household Finance Realty Corporation of New York vs. Winn, 19 AD3d 544 (2nd Dept. 2005), Fleet
National Bank vs. Olasov, 16 AD3d 374 (2nd Dept. 2005), leave to appeal dismissed 5 NY3d 849 (2005), Gateway State Bank vs. Shangri-
La Private Club For Women, 113 AD2d 791 (2nd Dept. 1985), aff’d 67 NY2d 627 (1986). Once such a prima facie showing has been made, the
burden shifts to the party opposing the application to come forward with sufficient evidence to controvert the summary judgment motion by
demonstrating the existence of a genuine triable issue of fact, Barcov Holding Corp. vs. Bexin Realty Corp., 16 AD3d 282 (1st Dept. 2005). For
the reasons hereinafter set forth, the Court finds that Plaintiff has failed to satisfy its burden of setting forth a prima facie case for entitlement to the relief
it seeks.
The copy of the mortgage appended to Plaintiff’s moving papers bears the signatures of both STEPHEN STEELE and SUSAN STEELE and
contains an acknowledgment by a notary public. However, the copy of the Loan Agreement that is appended to Plaintiff’s papers raises
disturbing issues. That instrument bears the date of October 26, 2006 and recites a principal amount of $92,696.60. The Loan Agreement clearly
reflects Defendant STEPHEN STEELE as the sole obligor thereunder but, most glaring of all, the Loan Agreement bears no signature whatsoever.
General Obligations Law § 5-701 requires promises such as those contained in the Loan Agreement to be both in writing and signed by the party to
be charged [G.O.L. § 5-701(a)(1)]. This Court must question how, under the circumstances presented here, Plaintiff can, with unbridled temerity,
demand enforcement of the Loan Agreement against Defendant STEPHEN STEELE, who has not executed that instrument and against Defendant
SUSAN STEELE, who is not even a party to that agreement. The most cursory reading of these instruments reveal the obvious facts as set forth
above. This posture by Plaintiff strains credulity and causes the Court to seriously question Plaintiff’s good faith in commencing this action.

Distilled to its essence, a mortgage is a conveyance of an interest in land that is expressly intended to constitute security for some obligation, most
commonly an indebtedness, Burnett v. Wright 135 NY 543, 32 NE 253 (1895). It follows logically then that in order for a mortgage to be valid and
subsisting, there must be an underlying obligation that is to be secured by an interest in the real property, owed by the obligor to the obligee, which
contains both the right of the obligee to foreclose and the right of the obligor to redeem, Baird v. Baird 145 NY 659, 40 NE 222 (1895), R.H. Macy
& Co. v. Bates 280 AD 292, 114 NYS 2d 143 (3rd Dept. 1952). Absent these essential elements, a valid mortgage cannot exist because it is the
underlying obligation which gives rise to the validity of the mortgage as a lien upon the real property. Here, the Loan Agreement that has been
presented to the Court facially appears to run counter to New York’s Statute of Frauds, G.O. L. § 5-701. Since there has been presented to
this Court no valid underlying obligation and no further explanation, the mortgage appears to fail as a matter of law.

This situation is all the more disturbing when it is considered that the sworn statements contained in the both the Complaint and the Affidavit in Support
Of the Motion for Summary Judgment expressly and falsely assert that Defendant SUSAN STEELE executed the Loan Agreement. This is
compounded by the sworn statement of Shana Richmond, Plaintiff’s foreclosure specialist, which is dated April 28, 2010 and which contains the same
painfully obvious mis-statements of fact. Going further, Plaintiff’s counsel has submitted an Affirmation dated December 2, 2010 which purports to
comply with Administrative Order no. AO548/10 in which he ratifies and confirms, in essence, the incorrect assertions in the Complaint and the
Summary Judgment application. Aside from the papers themselves, it appears that counsel’s affirmation runs afoul of the provisions of 22 NYCRR §
130-1.1.

An action claiming foreclosure of a mortgage is a suit in equity, Jamaica Savings Bank v. M.S. Investment Co. 274 NY 215 (1937), and the very
commencement of the proceeding invokes the equity jurisdiction of the Supreme Court. Thus, in order to obtain equitable relief, the applicant must
come before the Court with clean hands, else such relief will be denied. Thus, where a party comes before the Court and is shown to have acted in a
manner which is offensive to good conscience, fairness and justice, that party will be completely without recourse in a court of equity, no matter what
his legal rights may be, York v. Searles 97 AD 331 92nd Dept. 1904), aff’d 189 NY 573 (1907). Stated a bit differently, in order to obtain equity,
one must do equity.

Here, it is irrefutable that Defendant SUSAN STEELE was not a party to the Loan Agreement and certainly did not execute the same. It is equally
indubitable that Defendant STEPHEN STEELE did not execute the Loan Agreement that has been presented on this application. Nonetheless, Plaintiff
has vigorously prosecuted this action, demanding foreclosure of the mortgage as well as money damages against both named Defendants. Under these
circumstances, the Court is compelled to conduct a hearing to determine whether or not Plaintiff has proceeded in good faith and what sanction, if any
should be imposed should the Court find a lack of good faith.

It is, therefore,

ORDERED that the Plaintiff’s application for summary judgment and other relief is hereby denied; and it is further

ORDERED that a hearing shall be held in this matter, at which all counsel and parties shall appear, which shall not be adjourned except by the Court;
and it is further

ORDERED that said hearing shall be held on March 16, 2011 at 2:30 p.m. in Courtroom 229-A, Supreme Court, 1 Court Street, Riverhead, New
York; and it is further

ORDERED that Plaintiffs’ counsel shall, within ten days after entry hereof, serve a copy of this Order with Notice of Entry upon all parties in this
action as well as all counsel who have appeared in this action.
© 2010-13 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.
www.StopForeclosureFraud.com
 share share Like 2

Related posts:

1. [NYSC] JUDGE SPINNER LETS U.S. BANK HAVE IT “HAMP FAIL” U.S. Bank Natl. Assn. v Mathon Where exactly are these “trial
payments” U.S. Bank Natl. Assn....
2. NY Judge Spinner “Hide and Seek” : [NYSC] ROMAN v. STEELECASE Inc. SUPREME COURT OF THE STATE OF NEW YORK IAS PART...
3. [NYSC] NY JUDGE DENIES 42 FORECLOSURE CASES “HAMP, AFFIDAVIT” ISSUES EXCERPT: In submitting any future orders of
reference said application...
4. [NYSC] Judge Finds Issues With “NOTE AMOUNTS”, Robo Signer “ROGER STOTTS” Affidavit: ONEWEST v. GARCIA Any issues with
“Defendant MERS VP Roger Stotts” signing an...
5. VICTOR PARISI ROBO-SIGNER CALLED OUT BY [NYSC] JUDGE JEFFREY ARLEN SPINNER: JPMORGAN v. MUNOZ 2009
(3) SUPREME COURT – STATE OF NEW YORK I.A.S. PART 21...
This post was written by:

dinsfla - who has written 5989 posts on FORECLOSURE FRAUD | by DinSFLA.

CONTROL FRAUD | ‘If you don’t look; you don’t find, Wherever you look; you will find’ -William Black

Contact the author

Payday loan settlement Personal loan agreement Refinance Mortgage

One Response to “[NYSC] Judge Spinner “Plaintiff’s Papers Raises Disturbing Issues”, “Appears To Run
Counter To New York’s Statute of Frauds” BENEFICIAL HOMEOWNER SERV. CORP v. STEELE”

Trackbacks/Pingbacks

1. Tweets that mention [NYSC] Judge Spinner "Plaintiff's Papers Raises Disturbing Issues", "Appears To Run Counter To New York's
Statute of Frauds" BENEFICIAL HOMEOWNER SERV. CORP v. STEELE -- Topsy.com says:
02/08/2011 at 8:03 pm

[...] This post was mentioned on Twitter by DinSFLA, DinSFLA. DinSFLA said: Judge Spinner “Plaintiff’s Papers Raises Disturbing Issues”,
“To Run Counter To NY's St of Frauds” BENEFICIAL v. STEELE http://t.co/eYBQg6X [...]

Leave a Reply

Name (required)

Mail (will not be published) (required)

 Website

Submit Comment
 Like 2 people like this.

Archives

Select Month

Top Posts

What Is an Assignment of Mortgage? by dinsfla

PUBLISHED! Glaski v. Bank of America CA5 (5th APPELLATE DISTRICT) | Securitization FAIL(ed) — NY Trust Law APPLIED —
Quiet Title and a HOST of other “Causes” REVERSED and REMANDED — Homeowner UTTERLY DEFEATS JP Morgan by dinsfla
Best post in forever…take a look at this! Oral argument Florida 3rd Disctrict Court of Appeal by dinsfla
The Alex Jones Show: (VIDEO Commercial Free) August 19 2013: Max Keiser, Clouded Titles Author Dave Krieger, Dr. Blaylock by dinsfla
Show Me The Note! – Akina, Reiss & Borden by dinsfla
CLASS ACTIONS by dinsfla
Homeowner Win in Arizona Court of Appeals in Stauffer v First American Title Relating to ARS 33-420 and False Recordings in Foreclosure
by dinsfla
LETTER| Elizabeth Warren Presses Eric Holder On Mortgage Settlement by dinsfla
Judge Rakoff Rejects Sweetheart Deal Between the S.E.C and Citigroup by dinsfla
 HUFF vs FLAGSTAR | Another major victory in Arizona! – FALSE RECORDING CLAIMS by dinsfla
MILLER v. BAC HOMELOAN SERVICING | 5th District Court of Appeals – Win for Texas Homeowner by dinsfla
Bill Black Report: FBI Partners with Banks and Blames Mortgage Fraud on Poor Borrowers by dinsfla
Glaski v. Bank of America CA5 (5th APPELLATE DISTRICT) | Securitization FAIL(ed) — NY Trust Law APPLIED — Quiet Title and a
HOST of other “Causes” REVERSED and REMANDED — Homeowner UTTERLY DEFEATS JP Morgan by dinsfla
William Black: The Incredible Con the Banksters Pulled on the FBI by dinsfla
MERS 101 by dinsfla

Search

Search for: Search

Recent Comments
 lawrence p williams on Bill Black Report: FBI Partners with Banks and Blames Mortgage Fraud on Poor Borrowers
lawrence p williams on Bill Black Report: FBI Partners with Banks and Blames Mortgage Fraud on Poor Borrowers
Charles Reed on LETTER| Elizabeth Warren Presses Eric Holder On Mortgage Settlement
John Anderson on Best post in forever…take a look at this! Oral argument Florida 3rd Disctrict Court of Appeal
Sarah on Justice Department Planning To Announce Financial Crisis Charges
Rob Harrington on Best post in forever…take a look at this! Oral argument Florida 3rd Disctrict Court of Appeal
Shelley Erickson on William Black: Fannie Mae Hires an Officer it Alleges Defrauded it – and Finance Cheers
Shelley Erickson on Homeowner Win in Arizona Court of Appeals in Stauffer v First American Title Relating to ARS 33-420 and False
Recordings in Foreclosure

All Of These Are Troll Comments

950,319 spam
blocked by Akismet

© 2010-13 FORECLOSURE FRAUD | by DinSFLA. Powered by StopForeclosureFraud.

Privacy Policy

Disclaimer: Legal information is NOT legal advice. The material and historical information herein should NOT be taken as legal advice and is NOT a
substitute for the assistance of a licensed advisor. I AM NOT AN ATTORNEY.